People v. Wortham

Filed 10/24/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A138769 v. FREDDIE WORTHAM, (Alameda County Super. Ct. No. 137640) Defendant and Appellant.

Defendant Freddie Wortham appealed from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (the Reform Act). (Pen. Code, § 1170.126.)1 His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We first address whether the trial court’s order is appealable—an issue that is currently under review by our Supreme Court—and hold that it is. We then conclude, after having independently reviewed the record, that there are no arguable appellate issues. Accordingly, we affirm. A jury convicted Wortham in 2000 of first degree burglary (§ 459), the trial court sentenced him under the Three Strikes law to an indeterminate sentence based on his admitted five prior felony convictions, and this court affirmed the judgment in a nonpublished opinion. (People v. Wortham (July 25, 2001, A091475).) Over the next several years, Wortham filed various petitions for habeas corpus challenging his sentence under the Three Strikes law, which this court denied. (In re Wortham, petns. den.

1 All statutory references are to the Penal Code.

1

July 31, 2008, A122056, A122057; In re Wortham, petn. den. May 22, 2008, A121478; In re Wortham, petn. den. June 14, 2007, A117940.) On November 6, 2012, voters approved the Reform Act, and it went into effect the next day. (Three Strikes Reform Act of 2012, Section 10 [Prop. 36, as approved by voters Ballot Pamp., Gen. Elec. (Nov. 6, 2012)].) The Reform Act amended the Three Strikes law so that an indeterminate term of 25 years to life in prison is applied only where the “third strike” conviction is a serious or violent felony, or where the prosecution pleads and proves other specific factors. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) The Reform Act also added section 1170.126, which allows inmates sentenced under the previous version of the Three Strikes law to petition for a recall of their sentence if they would not have been sentenced to an indeterminate life sentence under the Reform Act. (§ 1170.126, subds. (a)-(b).) An inmate is eligible for resentencing if various criteria are met, including that the inmate’s commitment offense was not a serious or violent felony. (§ 1170.126, subd. (e).) The trial court’s consideration of a petition under the Reform Act is a two-step process. First, the trial determines whether the petitioner is eligible for resentencing. (§ 1170.126, subd. (f).) If the petitioner is eligible, the trial court proceeds to the second step, and resentences the petitioner under the Reform Act unless it determines that to do so would pose “an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) On March 5, 2013, Wortham, proceeding without an attorney, filed a petition for recall of his sentence under the Reform Act. The trial court denied the petition under the first step of section 1170.126 after it concluded that Wortham was ineligible for resentencing because his commitment offense, first degree burglary, constitutes a serious felony. Courts of Appeal are split on the issue of whether a trial court’s initial eligibility determination under the Reform Act results in an appealable order. After Wortham appealed the order in this case, his appointed counsel argued that the order was appealable but candidly acknowledged that our Supreme Court has granted review to resolve the issue. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted