Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. BA203835 and petition for a writ of habeas corpus, William C. Ryan, Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, Acting P.J.
Jeffrey Jimenez was convicted of one count of rape in 2001 and sentenced to state prison for the upper term of eight years. (Pen. Code, § 261, subd. (a)(2).) In 2002, we affirmed. (People v. Jimenez (Mar. 15, 2002, B151088) [nonpub. opn.].) In 2007, Jimenez filed a pro se motion in which he asked the trial court to modify his sentence in light of the Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856. The trial court denied the motion on the ground that Cunningham is not retroactive to cases that were final when that decision was announced.
Jimenez filed a notice of appeal from the order denying his motion, and we appointed counsel to represent him. On November 1, 2007, counsel filed an opening brief in which no issues were raised. On the same day, Jimenez filed a petition for a writ of habeas corpus challenging the trial court’s ruling that Cunningham is not retroactive. On December 13, we notified Jimenez that he could submit any additional issues he wanted us to consider, but he has not responded.
We have independently examined both the appellate record and the habeas corpus petition and are satisfied that Jimenez’s lawyer has fulfilled his duty, and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.) Leaving to one side the fact that the order denying Jimenez’s motion is not appealable (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726), the trial court’s ruling is correct -- Cunningham is not retroactive to cases that were final before it was decided. (Schriro v. Summerlin (2004) 542 U.S. 348, 351-352; and see People v. Amons (2005) 125 Cal.App.4th 855, 863-870.)
The order is affirmed. The petition is denied.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.