Filed 6/18/14 P. v. Singletary CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, E059557 v. (Super.Ct.No. FSB06601) CHARLES SINGLETARY, OPINION Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Charles Singletary filed a petition pursuant to Penal Code section 1170.1261 for resentencing. The court denied the petition finding defendant ineligible for resentencing. On appeal,2 defendant contends the court erred in determining he was ineligible for resentencing. We affirm.

PROCEDURAL HISTORY In 1995, a jury convicted defendant of attempted robbery (count 1; §§ 664/211) and possession of a controlled substance (count 3; Health and Saf. Code, § 11377, subd. (a)). The court found true allegations defendant had incurred two prior felony strike convictions for first degree burglary in 1986 and in 1989. The court found true allegations the same convictions were serious felonies pursuant to section 667, subdivision (a). The court sentenced defendant to an indeterminate term of 25 years to life on count 1; a concurrent, indeterminate term of 25 years to life on count 3; and two

consecutive, determinate terms of five years on each of the prior serious felony enhancements.

On June 28, 2013, defendant filed a petition for resentencing pursuant to section 1170.126. The court denied the petition finding defendant “does not satisfy the criteria in [section] 1170.126[, subdivision] (e) and is not eligible.”

DISCUSSION Defendant contends the court erred in determining he was ineligible for resentencing pursuant to section 1170.126 because one of the substantive offenses upon which defendant was sentenced, possession of a controlled substance, was not a serious or violent felony. Thus, defendant argues he was statutorily eligible for resentencing with respect to the count 3 offense for which the court imposed a concurrent 25 years to life sentence. We disagree.

Section 1170.126 “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.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286.)

“First, the court must determine whether the prisoner is eligible for resentencing; second, the court must determine whether resentencing would pose an unreasonable risk of danger to public safety; and third, if the prisoner is eligible and resentencing would not

pose an unreasonable risk of danger, the court must actually resentence the prisoner.” (Id. at p. 1299.)

Under section 1170.126, subdivision (e), an inmate is eligible for resentencing if he is (1) serving an indeterminate term of life imprisonment imposed pursuant to section 667, subdivision (e)(2), for a felony or felonies that are not defined as serious by section 1192.7, subdivision (c); (2) his current sentence was not imposed for offenses appearing in section 667, subdivisions (e)(2)(C)(i)-(iii); and (3) has not had prior convictions for any of the offenses appearing in section 667, subdivision (e)(2)(C)(iv). Section 1170.126 requires the superior court to “consider all current felonies in determining eligibility for recall of sentence.” (Braziel v. Superior Court, supra, 225 Cal.App.4th at p. 947.) “[A] defendant inmate is not eligible for recall of his sentence if any of the offenses for which he is serving a three strikes sentence is a serious and/or violent felony, even if one or more of those sentences are not serious and/or violent felonies.” (Id. at p. 946.)

Here, the court was required to consider all the felonies that led to defendant’s indeterminate life sentence. This included consideration of defendant’s conviction in count 1 for attempted robbery. (Braziel v. Superior Court, supra, 225 Cal.App.4th at p. [Defendant ineligible for resentencing on consecutive 25 years to life term on nonserious, nonviolent count when simultaneously convicted of ineligible serious and/or violent felony].) Since a conviction for attempted robbery is a serious felony, defendant was not eligible for resentencing pursuant to section 1170.126. (§ 1192.7, subds. (c)(19)

[robbery] & (c)(39) [“any attempt to commit a crime listed in this subdivision other than an assault”]. Therefore, the court properly denied defendant’s petition.3 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.

We concur:

KING Acting P. J.

MILLER J.

The court in Braziel conducted sufficient analysis of the Guide before concluding its defendant was ineligible for resentencing on essentially the same basis as defendant in this case. (Braziel v. Superior Court, supra, 225 Cal.App.4th at pp. 945-946.)