People v. McHenry CA1/5

Filed 12/18/13 P. v. McHenry CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A139173 v. CHRISTOPHER R. MCHENRY, (San Mateo County Super. Ct. No. SC042757A) Defendant and Appellant.

In January 1999, Christopher R. McHenry was sentenced under the “Three Strikes” law to two consecutive 25-year-to-life terms plus a consecutive 20-year term for four 5-year serious felony enhancements. McHenry filed a petition for a writ of habeas corpus seeking resentencing under Penal Code section 1170.126.1 The trial court found McHenry ineligible for resentencing and denied the petition. He appeals. Assigned counsel has submitted a Wende2 brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that McHenry has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We find no arguable issues and therefore affirm.

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 People v. Wende (1979) 25 Cal.3d 436.

1

BACKGROUND McHenry was convicted in 1998 of multiple felonies, including carjacking (§ 215, subd. (a)), second degree robbery (§ 212.5, subd. (c)), vehicle theft (Veh. Code, § 10851, subd. (a)), felony evading a peace officer (Veh. Code, § 2800.2), and three counts of felony assault with a deadly weapon (automobile) on a peace officer (§ 245, subd. (c)). Among the multiple special allegations found true were three prior strike convictions (§ 1170.12) and four prior serious felony convictions (§ 667, subd. (a)). In January 1999, McHenry was sentenced, inter alia, to two consecutive 25-years-to-life terms for carjacking and one count of felony assault with a deadly weapon (automobile) on a peace officer plus a consecutive 20-year term for the four 5-year serious felony enhancements. Judgment was affirmed by this court. (People v. McHenry (May 1, 2000, A085833) [nonpub. opn.].) On December 12, 2012, McHenry filed a pro se petition for a writ of habeas corpus seeking resentencing under Proposition 363 and section 1170.126. The district attorney opposed the petition, arguing that McHenry was statutorily ineligible for resentencing by virtue of his convictions for two violent felonies (carjacking, § 215, subd. (a); robbery, § 212.5, subd. (c)), and two serious felonies (two counts of assault with a deadly weapon on a peace officer, § 245, subd. (c)), and that the court should in any event deny resentencing because McHenry would pose an unreasonable risk of danger to public safety (§ 1170.126, subd. (f)). Counsel was appointed to represent McHenry. A hearing on the petition was held on May 21, 2013, before the Honorable Barbara Mallach, the original sentencing judge. The district attorney reiterated his position that McHenry was excluded from consideration for resentencing by the terms of the statute. McHenry’s counsel conceded that “I have not found a creative way to convince the Court that someone with these particular offenses can get out from under the serious or violent felony list, which is in