Opinion
E059246
01-15-2014
THE PEOPLE, Plaintiff and Respondent, v. GILBERT ANDREW MONTANEZ, Defendant and Appellant.
Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. FVA06563)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Gilbert Andrew Montanez appeals after the trial court denied his petition for resentencing under Penal Code section 1170.126, known as the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 2012)). Defendant filed a notice of appeal on July 24, 2013. We affirm.
All further statutory references will be to the Penal Code, unless otherwise noted.
PROCEDURAL BACKGROUND
Defendant was charged by amended felony complaint with one count of first degree residential burglary. (§ 459.) The amended complaint also alleged that defendant suffered a prior conviction of first degree burglary (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and that he had served a prior prison term (§ 667.5, subd. b). Defendant pled guilty to the first degree residential burglary charge. (§ 459.) On May 30, 1997, after denying defendant's Romero motion, the court sentenced him to state prison for 25 years to life. (§ 667, subd (e)(2).)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We note that, although the limited record in this appeal does not clearly reflect so, the trial court found true the allegations that defendant had two prior strike convictions. (See People v. Montanez (Sept. 8, 1998, E020850) [nonpub. opn.].)
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On May 9, 2013, defendant filed an in pro. per. petition for resentencing under section 1170.126. The court denied the petition on the ground that defendant's current conviction for first degree residential burglary (§ 459) made him ineligible for resentencing under section 1170.126, subdivision (e)(1).
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent defendant. 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 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a brief statement of the facts, and identifying one potential arguable issue: whether the court erred in denying his petition for resentencing under section 1170.126.
Defendant was offered an opportunity to file a personal supplemental brief, which he has not done. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur: RAMIREZ
P. J.
CODRINGTON
J.