California Court of Appeals, Third District, Sacramento
APPEAL from an order of the Superior Court of Sacramento County denying the petition for recall of defendant’s sentence No. 97F00832, Gary S. Ransom, Judge.
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Diane L. Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
In January 2013, defendant Leonard Eldyn Oehmigen filed a petition for the recall of his April 1998 indeterminate life sentence pursuant to Penal Code section 1170.126. The statute, enacted as part of a November 2012 initiative measure, provides retrospective relief under narrow criteria from indeterminate life sentences imposed for recidivism. Defendant alleged that he was eligible for resentencing because his 1998 commitment conviction—assault with force likely to inflict great bodily injury—was not a “serious” or violent felony (§ 1170.126, subd. (e)(1)), and neither his commitment conviction nor his other prior felony convictions came within other disqualifying criteria (id., subd. (e)(2) & (3)). As a result, he alleged he was entitled to a determinate sentence of double the normal term applicable to his conviction (i.e., the same sentence a defendant would receive under the prospective amendments to the recidivist sentencing statutes enacted as part
of the same initiative). (Id., subd. (f); see § 667, subd. (e)(1).) (Defendant also filed a second recall petition in connection with a later case (People v. Oehmigen (Super. Ct. Sacramento County, 2006, No. 05F02375)) for bringing contraband into prison while serving his indeterminate life sentence.)
The present trial court (Hon. Gary S. Ransom) denied the recall petition in case No. 97F00832 without a hearing. Its order relied on the prosecutor’s statement of the factual basis for defendant’s change of plea in January 1998, which neither defense counsel nor defendant had challenged. The trial court found (beyond a reasonable doubt, in an abundance of caution) that defendant was both armed with deadly weapons and intended to inflict great bodily injury during the commission of the commitment conviction, and thus his commitment conviction was ineligible for recall for resentencing. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii).) It accordingly denied the petition in the present case; it set the other petition (People v. Oehmigen, supra, 05F02375) for briefing and argument on various issues (for which reason it is not part of the present appeal).
The parties both assert this is an appealable order. The Supreme Court has recently resolved the debate over this issue, agreeing that an order finding a defendant ineligible is appealable. (Teal v. Superior Court (2014) 60 Cal.4th. 595, 597 [___ Cal.Rptr.3d ___,___P.3d___].) On the merits, we agree with the trial court’s conclusion that defendant’s record of conviction demonstrates he was armed with a deadly weapon in the form of a car during the commission of his commitment offense, and therefore defendant is ineligible for resentencing. (As a result, we do not reach the alternate bases for the order.) This court shall therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
To expand upon the details noted in the introduction, defendant’s petition to recall his sentence (which the public defender filed on his behalf) alleged in conclusory fashion ...