People v. Nelson CA1/5

Filed 11/26/14 P. v. Nelson CA1/

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

A139396

v. KENNETH WAYNE NELSON, (San Mateo County Super. Ct. No. SC050147) Defendant and Appellant.

Kenneth Wayne Nelson filed a petition for recall of sentence under Penal Code section 1170.126,1 a provision of the Three Strikes Reform Act of 2012. The trial court found Nelson ineligible for resentencing under the statute because he had a disqualifying prior conviction for forcible rape. It therefore denied the petition. Nelson appeals from the order of denial, arguing that in making its eligibility determination, the trial court had authority to dismiss the prior disqualifying conviction and consider him for resentencing. We…