The People v. Hurtado

Filed 5/28/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B246330

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA085141) v.

RAUL ARIZA HURTADO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Michael A. Cowell, Judge. Affirmed. California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, and Cheryl Lutz for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

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Defendant Raul Ariza Hurtado appeals from an order denying his petition for recall of his sentence pursuant to Penal Code section 1170.126, added by Proposition 36, the Three Strikes Reform Act of 2012. Although defendant is ineligible for resentencing because his commitment offense is a serious felony, we asked the parties to brief the proper mechanism for review of such a denial in this court. The parties agree that a denial of a petition to recall a sentence pursuant to Penal Code section 1170.126 is appealable as a postjudgment order affecting the substantial rights of the party. We also agree and affirm the denial of the petition because defendant is ineligible for resentencing. BACKGROUND In 2005, defendant was convicted of first degree burglary, with true findings on allegations that he had suffered two prior serious felony convictions (also first degree burglaries) within the scope of the “Three Strikes” law and Penal Code section 667, subdivision (a). (Undesignated statutory references are to the Penal Code.) The trial court sentenced him to a third strike term of 25 years to life, plus 10 years for the two section 667, subdivision (a) enhancements. On November 20, 2012, defendant filed a petition for recall of sentence pursuant to section 1170.126, alleging erroneously that his commitment offense, a first degree burglary, was not a serious or violent felony. (§ 1192.7, subd. (c)(18).) The trial court denied the petition the same day, explaining, “According to Proposition 36, conviction of Penal Code section 459 does not qualify for exemption.” Defendant filed a timely appeal, and we appointed counsel to represent him. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441.