People v. Canela CA2/3

Filed 9/25/15 P. v. Canela CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B262313

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA029281) v.

ASENCION CANELA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent. _____________________

In 1996, defendant and appellant Ascencion Canela was convicted of first degree burglary (Pen. Code, § 459)1 and misdemeanor battery (§ 242). Because he was also found to have sustained convictions for three prior serious or violent felonies within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), Canela was sentenced to a prison term of 40 years to life on the burglary charge. The judgment was affirmed on appeal (People v. Canela (Dec. 1, 1997, B108663) [nonpub. opn.]). On November 4, 2014, following passage of the Three Strikes Reform Act of 2012 (Prop. 36),2 Canela filed a petition seeking to recall his Three Strikes sentence. The trial court denied the petition with prejudice on the ground that Canela’s current conviction for first degree burglary is a serious felony which makes him ineligible for resentencing. Canela timely appealed from the order of denial.3 We appointed counsel to represent Canela on appeal. After reviewing the record, counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441. We directed counsel to send the record on appeal and a copy of the opening brief to Canela, and notified defendant he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On June 26, 2015, Canela filed a supplemental brief. We have examined the entire record and determined that, as the trial court ruled, because Canela’s current conviction is for first degree burglary (§ 459), which is a serious felony (§ 1192.7, subd. (c)(18)), he is not eligible for a reduction of his sentence