Filed 9/30/14 P. v. Whit CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E060571 v. (Super.Ct.No. FVA03996) ALONZO WHIT, 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.

Patrick E. DuNah, under appointment by the Court of Appeal, and Alonzo Whit, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and Appellant Alonzo Whit filed a petition for resentencing pursuant to Penal Code section 1170.126.1 The court denied the petition. After defendant filed a notice of appeal, this court appointed counsel to represent defendant on appeal.2 Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, and identifying two potentially arguable issues: 1) whether the denial of a petition for resentencing pursuant to section 1170.126 is appealable;3 and 2) whether the court erred in denying defendant’s petition for resentencing.

We offered defendant the opportunity to file a personal supplemental brief, which he has done. In his brief, defendant argues insufficient evidence supports his convictions for attempted first degree burglary (count 1; §§ 664/459) and criminal threats (count 2;

§ 422). In addition, defendant contends the trial court erred in permitting the introduction of evidence of defendant’s prior bad acts during trial. We affirm.

FACTUAL AND PROCEDURAL HISTORY4 Defendant and the victim had previously dated for four years. On April 8, 1995, defendant called the victim several times attempting to rekindle the relationship. The victim told him she had a new boyfriend. Defendant became angry, calling her numerous times and eventually saying “It’s on.”

While defendant and the victim were together, defendant engaged in four separate incidents of abuse against the victim prior to which he would say “It’s on.” These acts included hitting her, hitting her with a rock, hitting her with a gun, stabbing her with a knife, and threatening her with a knife. The incidents produced in the victim a mental state which caused her to be in sustained fear whenever she heard defendant say “It’s on.”

About 15 minutes after the last phone call from defendant, defendant began knocking on the door. When no one answered, he began pounding on the door and broke its paneling. He repeatedly said “It’s on.” Defendant pointed at the victim through a hole in the door and said “‘“I’m going to kill you, . . .”’ She was afraid because she knew that

defendant made good on his threats.”

Two other witnesses inside the victim’s home at the time corroborated the victim’s account. One witness testified defendant kicked the door off its hinges after he broke the panel and threatened to kill her mother. Another testified he saw defendant break the door, kick it off the bottom hinges, and threaten to kill everyone in the room. “When defendant left, he said that he would be back, and that he was going to get someone or something. His tone was extremely violent.” The victim called the police and defendant was apprehended nearby.

At trial, the court admitted the evidence of defendant’s prior acts of violence against the victim to prove defendant’s intent and to show a common plan or design. The court also allowed defendant’s testimony to be impeached with evidence of his “1982 convictions for robbery (Pen. Code, § 211), rape in concert (Pen. Code, § 264.1) and his 1992 conviction for being a felon in possession of a firearm (Pen. Code, § 12021).”

The trial court sentenced defendant to an indeterminate term of 50 years to life consisting of consecutive terms of 25 years to life on each count on which he was convicted.5 On appeal from his convictions in the commitment offenses, defendant

contended the prior acts against the victim and his prior criminal record should have been excluded from evidence. We rejected these contentions and affirmed the judgment. The trial court rejected defendant’s petition for resentencing finding “[d]efendant’s current commitment offense is for Attempted First Degree Residential Burglary ([§§] 664/459) and Criminal Threats ([§] 422). Each charge is a serious felony [and defendant] is therefore statutorily ineligible for re-sentencings under [section] 1170.126.”

DISCUSSION First, the court below correctly determined defendant was statutorily ineligible for resentencing pursuant to section 1170.126. Here, both of defendant’s commitment offenses, attempted first degree burglary and criminal threats, are violent and/or serious crimes which made him ineligible for resentencing. (§§ 1170.126, subd. (e), 1192.7, subd. (c)(18) & (39) [Defendant ineligible for resentencing if sentence was imposed for felony defined as serious and/or violent such as “any attempt to commit a crime listed in this subdivision” such as “any burglary of the first degree . . . .”]; 1192.7, subd. (c)(38) [Defendant ineligible for resentencing if sentence was imposed for felony defined as serious and/or violent such as “criminal threats, in violation of Section 422 . . . .”].)

Second, defendant’s complaints regarding the evidence of prior bad acts adduced against him at trial are not relevant to section 1170.126 resentencing procedures and were already rejected on appeal. (See In re Waltreus (1965) 62 Cal.2d 218, 225 [“These arguments were rejected on appeal, and habeas corpus ordinarily cannot serve as a second appeal.” [Citation.].) Third, defendant’s complaints regarding the sufficiency of the evidence against him regarding the commitment offenses are not relevant to section 1170.126 resentencing procedures and could have been raised on appeal. (See In re Dixon (1953) 41 Cal.2d 756, 759 [“The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction. [Citations.]”].)

DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.

We concur:

RAMIREZ P. J.

KING J.