Opinion
E065784
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. TROY KENNETH NESTE, Defendant and Appellant.
Donna L. Harris, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. FMB03378 & WHCJS1600012) OPINION APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Troy Kenneth Neste 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. 6, 2012).) An amended notice of appeal was filed on defendant's behalf on April 21, 2016. We affirm.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
PROCEDURAL BACKGROUND
Defendant was charged by second amended information with criminal threats (§ 422, count 1), dissuading a witness by force or threat (§ 136, subd. (c)(1), count 2), and threatening a witness (§ 140, subd. (a), counts 3 & 4). (Case No. FMB03378.) It was also alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)) and had two prior strikes (§§ 1170.12, subds. (a)-(d), 667, subd. (b)-(i)). A jury found him guilty of the lesser included offense of dissuading a witness or victim from attending or testifying at any trial or proceeding (§ 136.1, subd. (a)(2)) on count 2, not guilty on count 3, and guilty on count 4. A trial court declared a mistrial as to count 1, and the prosecution dismissed that count. After a bifurcated trial, the court found the prior conviction allegations true. On January 14, 2000, the court sentenced defendant to two consecutive terms of 25 years to life in state prison on counts 2 and 4, plus two consecutive one-year terms on the prison priors.
On November 13, 2012, defendant filed a petition for resentencing, pursuant to section 1170.126. The court found him ineligible for relief since one of his current convictions was for a serious felony (§ 136.1, subd. (a)(2)); it thus denied the petition.
On February 11, 2016, defendant filed a petition for writ of habeas corpus (case No. WHC1600012), pursuant to People v. Johnson (2015) 61 Cal.4th 674, arguing that he was eligible for resentencing on count 4, since it was not a serious or violent offense. The court deemed the habeas petition to be a petition for resentencing under Proposition 36. The court held a hearing, and the parties agreed that the petition should be granted as to count 4 and that the sentence should be 25 years to life on count 2, and six years on count 4, plus one year each on the two prison priors. Therefore, the court imposed an eight-year determinate sentence followed by 25 years to life.
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, setting forth a statement of the case, and identifying two potential arguable issues: (1) whether the court erred by declining to resentence defendant on count 2, when section 136.1 was not classified as a serious or violent felony at the time the offense was committed in 1999; and (2) whether the court abused its discretion in failing to order the sentence in count 4 to be served concurrently with the sentence in count 2.
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. McKINSTER
J.