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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




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       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;


       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2  We note the appealability of the denial of a section 1170.126 petition is
currently being considered by the Supreme Court. (See, e.g., Teal v. Superior Court
(2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [not appealable];
People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017
[appealable].) Even if we were to conclude it was a nonappealable order, we could
consider, in the interest of judicial economy and because of uncertainty in the law, that
defendant’s appeal is a petition for writ of habeas corpus or writ of mandate. (See People
v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal from nonappealable order as
petition for writ of habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845,
852-853 [Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to
uncertainty in the law].) In any event, we will assume the order is appealable and review
it on the merits.

       3   See footnote two for resolution of this issue.



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§ 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


       4 Defendant failed to attach to his petition any documentation regarding his
commitment offenses or prior strike convictions. We take judicial notice of our opinion
from defendant’s appeal of his conviction on the commitment offenses. (People v. Whit
(June 18, 1997, E017117) [nonpub. opn.].) (Evid. Code, § 452, subd. (d), [Judicial notice
may be taken of the records of any court of this state.].) Our factual history is taken
predominantly from that source.



                                              3
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


      5  Our opinion conflicts with respect to the sentence defendant received. In our
opinion, defendant’s sentence is reflected as consisting of concurrent 25 years to life
terms and a consecutive one-year term for a prior prison term enhancement (§ 667.5,
subd. (b)). It is unclear whether the sentencing minute order in the record dated August
15, 1995, reflects an original sentence which was later modified or whether our opinion
misstates the sentence defendant received.



                                            4
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

                                               5
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.




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