California Court of Appeals, Third District, Shasta
APPEAL from a judgment of the Superior Court of Shasta County, No. 96F3095 Daniel E. Flynn, Judge.
Deanna Lamb, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
RAYE, P. J.
In 1996 Steven Alan Leggett pleaded no contest to attempted second degree robbery (Pen. Code, §§ 211, 664) and admitted a weapon enhancement (§ 12022, subd. (b)). Based on his further admission of two prior strikes, the trial court sentenced him to 25 years to life pursuant to the three strikes law. (§§ 667, subds. (b)-(i), 1170.12.)
On March 25, 2013, Leggett (petitioner) filed a petition to recall the sentence and for resentencing pursuant to section 1170.126, which was enacted as part of Proposition 36, the Three Strikes Reform Act of 2012. The trial court summarily denied the petition, finding petitioner was disqualified from seeking relief under the statute because his current sentence was based upon a conviction of a serious felony. (See §§ 1170.126, subds. (b), (e), 1192.7, subd. (c).) This appeal followed.
We appointed counsel to represent petitioner on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Petitioner was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from petitioner.
While petitioner purports to appeal from the trial court’s denial of his petition to recall the sentence, it is not at all clear that the order denying the petition is an appealable order. As we shall explain, resolution of that issue turns on the language of section 1170.126 authorizing the recall petition. We shall conclude that petitioner’s attempted second degree robbery conviction excludes him from the class of persons authorized by the statute to seek recall of his sentence. Therefore, the trial court’s decision is not appealable and we shall dismiss the current appeal.
Under Proposition 36, with certain exceptions, a defendant who has two or more prior serious and/or violent felonies (strikes) is not subject to an indeterminate sentence if the current conviction does not include a serious or violent felony. (See §§ 667, subd. (e), 1170.12, subd. (c).) For those individuals serving previously imposed sentences, section 1170.126 sets forth a statutory procedure to seek resentencing. Subdivision (b) of the statute establishes that a person serving an indeterminate term of life imprisonment under the three strikes law for a conviction based on “a felony or felonies that are not defined as serious and/or violent felonies... may file a petition for a recall of the sentence....” Subdivision (d) of the statute requires a petition for recall of a sentence to specify both (1) the currently charged felonies that resulted in the current sentence, and (2) the prior convictions “alleged and proved” under the three strikes law.
As a threshold matter, after a petition is filed the trial court must determine whether the petitioner is eligible to be considered for resentencing. Only then may the court exercise its discretion to resentence. (See § 1170.126, subds. (e)-(g).) A petitioner is eligible if (1) the petitioner’s current conviction is not based on any serious and/or violent felony, (2) the current sentence was not imposed for any disqualifying offenses under Proposition 36, and (3) the inmate “has no prior convictions” for disqualifying offenses. (§ 1170.126, subd. (e).) For example, the petitioner may be disqualified from resentencing by a current conviction for certain drug and sex offenses, as well as crimes in which “the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) A petitioner may likewise be disqualified from resentencing if he or she has a prior conviction for certain enumerated offenses. (See §§ 667, subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv).)
“ ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ [Citations.]” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) The only statute that might have application in the present case is section 1170.126, which makes appealable “any order made after judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b).) Unless an order denying resentencing under section 1170.126 is an order after judgment affecting petitioner’s substantial rights, as described in section 1237, there is no right of appeal and any review of the court’s order must necessarily be by writ.
Here, petitioner sought resentencing even though he was convicted of attempted second degree robbery. Section 1192.7, subdivision (c)(19) defines a “robbery or bank robbery” as a serious felony, and subdivision (c)(39) of section 1192.7 includes as a serious felony “any ...