1

Filed 4/22/16 P. v. M ora CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

EDUARDO NAVA MORA,
Defendant and Appellant. E064906
(Super.Ct.No. INF1301141)

OPINION

APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge.

Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant
, Eduardo Nava Mora
, appeals from the eight

- year

sentence he received after being re sentenced . The trial court resentenced defendant in

accordance with this court’s opinion gr anting
, in part
, his petition for writ of habeas2

corpus regarding the use of a 2012 conviction to enhance his sentence for a 2013
conviction. We affirm the judgment on resentencing.

I. F ACTS AND P ROCEDURE

On September 25, 2013, a jury convicted defenda nt of fir st degree burglary (Pen.

Code, § 459) 1 and receiving stolen property (§ 496, subd. (a) ). The trial court found true
that defendant had two prison term pr iors (§ 667.5, subd. (b)). The court also found true

that defendan t had a serious felony prior (§ 667, subd. (a)) and a strike prior ( §§ 667,

subds

. (b)

- (i), 1170.12 ), both based on a 2012 conviction for participating in a criminal
street gang ( § 186.22, subd. (a)). The court sentenced defendant to 15 years in prison as

follows: the middle t erm of four years for the residential burglary, doubled for the strike,
plus five years for the serious felony prior, plus two years for the prison term priors. The
sentence for receiving stolen property was stayed pursuant to section 654.

In a petition for writ of habeas corpus, case No. E061823, d efendant s ought to

have his 2013 sentence reduced because the 2012 conviction was for conduct that was

later determined not to constitute a crime. In People v. Rodriguez (2012) 55 Cal.4th

1125
, our Supreme Co urt held that a defendant cannot be convicted for participating in a
criminal street gang when he or she acts alone, as defendant did in 2012. In the 2013

case, t he gang participation prior from 2012 was used as a strike prior to double his four

year midd le term sentence for residential burglary and as a serious felony prior to add
five years. We granted defendant’s petition
, in part. However, rather than reducing

1 All further statutory references are to the Penal Code unless otherwise indicated.3

defendant’s sentence by nine years as he requested, we set aside the 2012 conviction for

ga ng participation, vacated the judgment of conviction dated September 25, 2013, and
remanded to the trial court for resentencing.
On November 23, 2015, the trial court resentenced as before to two years for the
two prison term priors, and again stayed the sentence for receiving stolen property.

However, the court this time selected the upper term of six years for the burglary, and
, as

instructed
, did not double the sentence or add the previous five

- year enhancement, for a
total sentence of eight years.
This appeal followed.

II. D ISCUSSION
After defendant appealed, upon his request, this court appointed counsel to
represent him on appeal. Counsel has filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 , setting forth a
statement of the case, a summary of the facts and a potential arguable issue, and
requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplementa l brief, and he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have independently reviewed the entire record for potential error and find no arguable
error that would result in a disposition more favorable to defenda nt.4 III. D ISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J.

MILLER J.