Filed 7/24/15 P. v. McGraw 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E062615
v. (Super.Ct.No. FVI1020024)
KEVIN GERALD MCGRAW, 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.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Kevin Gerald McGraw filed two petitions for
resentencing pursuant to Penal Code section 1170.126.1 The court denied the petitions.
After defendant filed the notice of appeal, this court appointed counsel to represent
defendant. 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 one potentially arguable issue: whether the court abused its
discretion in denying defendant’s petitions. We affirm.
PROCEDURAL HISTORY
On November 2, 2005, a jury convicted defendant of attempted robbery (count 2;
§§ 664/211). After a bifurcated bench trial, the court found true allegations defendant
had suffered two prior strike convictions. (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-
(d).) The court sentenced defendant to an indeterminate term of incarceration of 25 years
to life.
On May 5, 2014, defendant filed a petition for resentencing. On October 15,
2014, defendant filed another petition for resentencing. On November 25, 2014, the
court denied defendant’s petitions finding, “Defendant’s current commitment offense is
for attempt[ed] robbery [sections] 664/211[,] a serious felony making defendant
ineligible for resentencing under [section] 1170.126.”
1 All further statutory references are to the Penal Code.
2
DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. 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.
(§§ 1170.126, subd. (b) [“Any person serving an indeterminate term of life imprisonment
. . . upon conviction . . . of a felony . . . that [is] not defined as serious . . . by . . .
subdivision (c) of Section 1170.12, may file a petition for a recall of sentence . . . .”];
1192.7, subds. (c)(1)(19) [“robbery”] & (39) [“any attempt to commit a crime listed in
this subdivision”].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
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