People v. Voightman CA2/1

Filed 7/29/16 P. v. Voightman CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B269100

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA086230) v.

ALLEN VOIGHTMAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed Allen Voightman, in pro. per.; and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ____________________________

On July 8, 2010, Allen Voightman broke into and was rummaging through a detached garage when the owner confronted him, demanded that he leave, then chased and physically detained him for police. Voightman was charged with first degree burglary of an inhabited dwelling, which was alleged to constitute a violent felony because a person other than an accomplice was present. (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd. (c)(21).)1 The information alleged Voightman had suffered six prior convictions beginning in 1983, three of them for serious or violent felonies within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12); had served several prison terms and had not remained free of custody for a period of five years after his last incarceration (§ 667.5, subd. (b)). Voightman pleaded not guilty. On November 4, 2010, a jury convicted Voightman of first degree burglary and the court found allegations of five prior convictions, three of them strikes, were true. He was sentenced to prison for 39 years to life. (§§ 667, 1170.12.) In 2011, we affirmed the conviction. (People v. Voightman (Sept. 26, 2011, B228832 [nonpub. opn.]).) In November 2012, the electorate passed Proposition 36, which allows a person convicted of a nonserious, nonviolent felony to petition for recall of a third strike sentence and request resentencing as a second strike offender. (§ 1170.126, subd. (b).) Voightman thereafter filed such a petition and requested resentencing. The trial court denied the petition on the ground that Voightman’s current conviction was for a violent felony, which disqualified him from resentencing. (§ 1170.126, subd. (b) [excluding anyone convicted of a violent felony from eligibility for resentencing]; see § 667.5, subd. (c)(21) [defining as a violent felony any first degree burglary committed when the burgled residence was inhabited].) He timely appealed. We appointed counsel to represent Voightman on appeal and, after examination of the record, appointed counsel filed an opening brief raising no issues and asking this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436, 441- 442.) On March 28, 2016, we sent letters to Voightman and appointed counsel, directing