Teal v. Super. Ct.

Filed 6/19/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BENNIE JAY TEAL, B247196

Petitioner, (Los Angeles County Super. Ct. No. NA026415) v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

ORIGINAL PROCEEDINGS in Mandate. William C. Ryan, Judge. Petition Denied. Richard B. Lennon, under appointment by the Court of Appeal, for Petitioner. No appearance by Respondent. No appearance by Real Party in Interest.

Bennie Jay Teal is serving an indeterminate life term under the Three Strikes law following his conviction in 1996 for making a criminal threat. On January 22, 2013 the trial court denied Teal‟s petition for recall of sentence pursuant to Penal Code 1 section 1170.126 on the ground Teal is ineligible for resentencing. (§ 1170.126, subd. (f).) Teal filed a notice of appeal on February 21, 2013; we appointed counsel to represent Teal on appeal; counsel filed an opening brief on June 13, 2013 pursuant to People v. Wende (1979) 25 Cal.3d 436, which raised no issues and asked this court to independently review the record. The order denying Teal‟s petition is not appealable but may be reviewed by a petition for writ of mandate. Accordingly, we treat the purported appeal as a petition for writ of mandate and summarily deny the petition. (See generally Olson v. Cory (1983) 35 Cal.3d 390, 401.) The right of appeal is statutory, and a judgment or order is not appealable unless expressly made so by statute. (People v. Totari (2002) 28 Cal.4th 876, 881; People v. Mazurette (2001) 24 Cal.4th 789, 792.) As relevant here, an inmate like Teal may appeal from “any order made after judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b).) Proposition 36 (the Three Strikes Reform Act of 2012) amended sections 667 and 1170.12 to limit Three Strikes sentences to current convictions for serious or violent felonies and a limited number of other felonies (for example, a felony offense that results in mandatory registration as a sex offender [§§ 667, subd. (e)(2)(C)(ii), 1170.12, subd. (c)(2)(C)(ii)]) unless the offender has a prior strike conviction that falls within one of several enumerated categories (for example, offenses punishable by life in prison [§§ 667, subd. (e)(2)(C)(iv)(VIII), 1170.12, subd. (c)(2)(C)(iv)(VIII)]). Section 1170.126 establishes a procedure for qualified inmates serving indeterminate life sentences under the Three Strikes law to seek resentencing under the terms of the amended law. However, section 1170.126, subdivision (a), expressly limits the right to have the trial 1 Statutory references are to the Penal Code. 2