People v. Canela CA2/3 ( 2015 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
1
All further references are to the Penal Code unless otherwise specified.
2
The passage of Proposition 36 resulted in the enactment of section 1170.126.
3
The trial court’s denial of a petition to recall a sentence pursuant to
section 1170.126 is an appealable order under section 1237, subdivision (b). (Teal v.
Superior Court (2014) 60 Cal. 4th 595, 598.)
2
under section 1170.126.4 Contrary to the suggestion in Canela’s supplemental brief, it is
his most recent conviction that prevents any reduction in his sentence. We are satisfied
that defense counsel has fully complied with his responsibilities and that no arguable
appellate issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 278 [120 S. Ct. 746];
People v. Kelly (2006) 40 Cal. 4th 106, 110.)
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“Under the three strikes law [citation] as it existed prior to Proposition 36
[hereafter, “the Act”], a defendant convicted of two prior serious or violent felonies
would be subject to a sentence of 25 years to life upon conviction of a third felony.
Under the Act, however, a defendant convicted of two prior serious or violent felonies is
subject to the 25-year-to-life sentence only if the third felony is itself a serious or violent
felony. If the third felony is not a serious or violent felony, the defendant will receive a
sentence as though the defendant had only one prior serious or violent felony conviction,
and is therefore a second strike, rather than a third strike, offender. The Act also provides
a means whereby prisoners currently serving sentences of 25 years to life for a third
felony conviction which was not a serious or violent felony may seek court review of
their indeterminate sentences and, under certain circumstances, obtain resentencing as if
they had only one prior serious or violent felony conviction. According to the specific
language of the Act, however, a current inmate is not entitled to resentencing if it would
pose an unreasonable risk of danger to public safety.” (People v. Superior Court
(Kaulick) (2013) 215 Cal. App. 4th 1279, 1285-1286, fn. omitted.)
3
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
ALDRICH, J.
JONES, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
4