People v. Foster CA2/5 ( 2014 )

Filed 10/21/14 P. v. Foster CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B257236
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. TA036489)
v.
ALLEN FOSTER, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, William
C. Ryan, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard
B. Lennon, Staff Attorney, under appointments by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant and appellant Allen Foster, Jr., was convicted by jury of attempted
robbery, in violation of Penal Code sections 664/211.1 Defendant was sentenced to 25
years-to-life pursuant to the three strikes law (§§ 1170.12, subds. (b)-(i) and 667, subds.
(a)-(d)) because he had previously been convicted of robberies (§ 211) and kidnapping (§
207).
Defendant filed a petition for recall of sentence pursuant to section 1170.126,
enacted in 2012 by the passage of Proposition 36. Defendant requested to be resentenced
as a second strike offender under the terms of the statute. The trial court denied the
petition because defendant’s current serious felony conviction renders him ineligible for
relief under section 1170.126, subdivision (e)(2).
Defendant filed a timely notice of appeal. This court appointed counsel for
defendant. Appointed counsel filed a brief raising no issues, but requested this court to
independently review the record for arguable contentions pursuant to People v. Wende
(1979) 25 Cal. 3d 436. Defendant was advised by letter from this court of his right to file
a supplemental brief within 30 days. No supplemental brief has been filed by defendant.
Our independent review of the record indicates that the trial court properly denied
the petition to recall the sentence. Attempted robbery is a serious felony. (§ 1192.7,
subd. (c)(39).) The ameliorative provisions of Proposition 36 do not apply to a defendant
currently sentenced to state prison for a serious felony. Defendant is statutorily ineligible
for resentencing. (§ 1170.126, subd. (e)(2).)
1 All statutory references are to the Penal Code.
2
We have conducted an independent review of the record on appeal. There are no
arguable appellate contentions in this case. The judgment is affirmed. (Smith v. Robbins
(2000) 528 U.S. 259.)
KRIEGLER, J.
We concur:
TURNER, P.J.
MOSK, J.
3