Filed 1/21/14 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E058928
v. (Super.Ct.No. RIF125592)
PEDRO GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant Pedro Garcia appeals from the superior court’s denial of his motion to
recall his sentence pursuant to Penal Code 1 section 1170.126. As discussed below, we
affirm.
On March 23, 2006, a jury convicted defendant of assault with a deadly weapon
on a peace officer (§ 245, subd. (c)), two counts of battery against a peace officer (§ 243,
subd. (c)(2)), and two counts of obstructing an executive officer (§ 69).
Defendant was sentenced under the Three Strikes law to 25 years to life plus five
years for prior convictions.
Defendant filed a petition to recall his sentence, which the superior court denied
on March 28, 2013. The court found defendant ineligible for resentencing because his
current conviction—assault with a deadly weapon on a peace officer—is a serious felony
listed in section 1192.7, subdivision (c)(11).
On May 1, 2013, defendant filed a motion for reconsideration, which the court
denied on May 2, 2013. This appeal followed.
DISCUSSION
Upon defendant’s request, this court appointed counsel to represent him. 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, a summary of the
facts and potential arguable issues, and requesting this court conduct an independent
review of the record. The only arguable issue presented by defendant’s counsel was
1 All section references are to the Penal Code unless otherwise indicated.
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whether the trial court erred by denying defendant’s petition for resentencing pursuant to
section 1170.126.
Assault with a deadly weapon on a peace officer is a serious felony. (§ 1192.7,
subd. (c)(11).) Accordingly, defendant is not eligible for resentencing pursuant to section
1170.126, subdivision (e)(1).
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. Defendant argues the Legislature violated his Equal Protection rights
because: 1) persons convicted of assault with a deadly weapon on a peace officer and
persons convicted of assault with a deadly weapon on any other person are similarly
situated; and 2) there is no rational basis for treating the two types of persons differently.
Our courts have long ago held that the Legislature does not act arbitrarily or capriciously
when it prescribes increased punishment for those who assault a peace officer. (People v.
Beachem (1963) 223 Cal.App.2d 383, 388.) Thus we find defendant’s arguments on this
point to be without merit.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
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DISPOSITION
The superior court’s ruling is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
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