People v. Berg CA3

Filed 11/13/15 P. v. Berg CA3 Reposted to provide correct filing date NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Siskiyou) ----

THE PEOPLE, C078424

Plaintiff and Respondent, (Super. Ct. No. SC SC CR F 98-0087) v.

ERIC ANTHONY BERG,

Defendant and Appellant.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel for defendant Eric Anthony Berg has asked us to review the record for arguable issues in this appeal from the denial of his motion to modify his three strikes sentence pursuant to Penal Code section 1170.126.1 Defendant filed a supplemental brief asserting the trial court’s denial of his motion was incorrect for three reasons, which we explain post.

1 Further undesignated statutory references are to the Penal Code.

1

Although we do not necessarily agree that defendant is entitled to Wende review, as we explain, we nonetheless independently review the record for error and also consider defendant’s briefing, explaining why the contentions he raises in his supplemental brief are devoid of merit. We affirm. BACKGROUND Defendant was found guilty by jury of manufacturing methamphetamine while personally armed with a firearm (Health & Saf. Code, § 11379.6, subd. (a); § 12022, subd. (c)), possessing precursors with the intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c) while a principal was armed with a firearm), and possession of a firearm by a convicted felon (former § 12021, subd. (a)(1)). The trial court sustained six strike allegations (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and five prior prison term allegations (§ 667.5, subd. (b)), and sentenced defendant to consecutive 25-year-to-life terms on the manufacturing methamphetamine and felon in possession counts, a concurrent 25-year-to-life term on the remaining count, and a determinate 10-year term for the enhancements. On July 7, 2014, defendant filed a pro per motion for recall of sentence pursuant to section 1170.126. The public defender had been initially appointed to represent defendant, but had “made an initial threshold determination that [the office was] essentially precluded from filing a petition based on the nature of the conviction” adding “[t]here was a personal use allegation that was found true by a jury.” The trial court denied the motion, citing the “nature of the charges” of conviction, without elaboration. DISCUSSION Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a petition brought pursuant to Proposition 47 remains an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address