People v. Wildee CA3

Filed 5/12/16 P. v. Wildee CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C079711

Plaintiff and Respondent, (Super. Ct. No. 04F10364)

v.

BERNARD WILDEE,

Defendant and Appellant.

In this appeal from the denial of a Penal Code section 1170.126 (Proposition 36)1 petition for resentencing, appointed counsel for defendant Bernard Wildee has filed an opening brief that sets forth the facts of the case and asks that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979)

1 Undesignated statutory references are to the Penal Code.

1

25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. BACKGROUND In the early morning hours of November 25, 2004, Sacramento police detained defendant and his cousin LeAndrew Smith. The officers observed the two men sitting in a maroon Mustang on G Parkway. The car was parked about a quarter of a mile from where a residential burglary had taken place a few minutes before. Defendant initially gave the officers his Swahili name and denied he was on probation or parole. When questioned further by the police, defendant stated he had a “baby gun” in the car, provided his true name, and admitted he was on parole. The officers found a loaded .38- caliber revolver under the front passenger seat. Smith was in the driver’s seat. A jury convicted defendant of felon in possession of a firearm (former § 12021, subd. (a)(1)), unlawful possession of a concealed firearm (former § 12025, subd. (b)(6)), and unlawful possession of a loaded firearm (former § 12031, subd. (a)(2)(F)) and sustained two strikes (§§ 667, subd. (e)(2), 1170.12) and a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to 25 years to life plus one year. This court modified the award of presentence conduct credits, and affirmed the modified judgment in an unpublished opinion. Defendant subsequently filed a section 1170.126 petition for resentencing. The trial court initially denied the petition, but granted defendant’s motion for reconsideration. On reconsideration, the court denied the petition again, finding defendant was ineligible for resentencing because he was armed during the commission of his offenses. 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 section 1170.126 remains an open