Hurtado

BACKGROUND

In 2005, defendant was convicted of first degree burglary, with true findings on allegations that he had suffered two prior serious felony convictions (also first degree burglaries) within the scope of the “Three Strikes” law and Penal Code section 667, subdivision (a). (Undesignated statutory references are to the Penal Code.) The trial court sentenced him to a third strike term of 25 years to life, plus 10 years for the two section 667, subdivision (a) enhancements. On November 20, 2012, defendant filed a petition for recall of sentence pursuant to section 1170.126, alleging erroneously that his commitment offense, a first degree burglary, was not a serious or violent felony. (§ 1192.7, subd. (c)(18).) The trial court denied the petition the same day, explaining, “According to Proposition 36, conviction of Penal Code section 459 does not qualify for exemption.” Defendant filed a timely appeal, and we appointed counsel to represent him. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441.

DISCUSSION

1. Appealability…