People v. Niera CA2/8

Filed 12/18/14 P. v. Niera CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B255565
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA067556)
v.
DAVID J. NIERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
William C. Ryan, Judge. Affirmed.
Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and
Appellant.
No response by Respondent.
__________________________
In 2009 we affirmed David J. Niera’s conviction on one count of first degree
residential burglary (People v. Niera (Dec. 29, 2009, B213812) [nonpub. opn.]), which
included a state prison term of 30 years to life under the Three Strikes law. (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) In October 2013 Niera filed a habeas
petition with the trial court seeking to recall his Three Strikes sentence under
“Proposition 36.” The trial court interpreted this as a petition to recall the sentence under
Penal Code section 1170.126, which was enacted pursuant to Proposition 36, the Three
Strikes Reform Act approved by the voters in November 2012. (People v. Manning
(2014) 226 Cal. App. 4th 1133, 1137.)
The trial court appointed counsel for Niera, who advised Niera that because his
burglary conviction was a serious felony, he was ineligible for relief under Penal Code
section 1170.126. The trial court denied the motion on that basis.
Niera filed a notice of appeal.1 On August 5, 2014, his appointed counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende) in which no issues were
raised. The brief included a declaration from counsel that she had reviewed the record
and had sent Niera a letter advising him that such a brief would be filed and that he could
file a supplemental brief if he chose to. That same day this court sent Niera a letter
advising him that a Wende brief had been filed and that he had 30 days to submit a brief
raising any issues he wanted us to consider. He did not file a supplemental brief.
We have examined the entire record and are satisfied that appellant’s attorney has
fully complied with her responsibilities and that no arguable issues exist. (Smith v.
Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal. 3d 436.)
1 We are aware that our Supreme Court has granted review of several decisions in
order to determine whether orders denying section 1170.126 relief on a threshold finding
of ineligibility are appealable. (People v. Wortham, review granted Jan. 15, 2014,
S214844; People v. Leggett, review granted Dec. 18, 2013, S214264; People v. Hurtado,
review granted July 31, 2013, S212017; Teal v. Superior Court, review granted July 31,
2013, S211708.) However, our Division Three colleagues’ recent decision in People v.
Manning, supra, 226 Cal.App.4th at page 1137, footnote 1, 1144, reversed and remanded
a trial court order denying a petition under Penal Code section 1170.126 and that decision
is now final.
2
DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
3