People v. Puckett CA1/3

Filed 3/4/14 P. v. Puckett CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A138875 v. MARLON PUCKETT, (San Mateo County Super. Ct. No. SC038062A) Defendant and Appellant.

In re MARLON PUCKETT. A140769

Defendant appeals from the denial of his petition to recall his sentence of 65 years to life pursuant to Penal Code1 section 1170.126. His attorney has filed a brief requesting this court to review the record for potential error pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel has advised defendant of his right to file a supplemental brief, which he has not done. Defendant has also filed a petition for a writ of habeas corpus challenging the imposition of one 5-year enhancement included in his sentence. The Attorney General has filed an opposition to the petition and defendant has filed a traverse. We hereby consolidate the two appeals for disposition. We find no merit or cause for further briefing in any of defendant’s contentions. In October 1996 defendant was sentenced to a term of 65 years to life, comprised of two consecutive 25-year-to-life sentences imposed for two residential burglaries (§§ 459, 460, subd. (a)), as third “strikes” pursuant to section 1170.12, subdivision (c)(2),

1 All statutory references are to the Penal Code.

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plus three consecutive five-year terms for the commission of prior serious felony convictions in 1982, 1985 and 1991, pursuant to section 667, subdivision (a). In December 2012, defendant petitioned the superior court to recall his sentence and to resentence him pursuant to the recently enacted (by Proposition 36 on the 2012 ballot) section 1170.126. The trial court denied the petition on the ground that defendant is not eligible for resentencing under the new measure because his third strike convictions in 1996 were for serious felonies. Defendant has timely appealed from that denial. Initially, there is a question whether the order denying defendant’s petition is an appealable order. Courts of Appeal have reached conflicting determinations of this question, and the issue is now pending before the Supreme Court. (Teal v. Superior Court, review granted July 31, 2013, S212017); People v. Hurtado, review granted July 31, 2013, S211708; People v. Leggett, review granted Dec. 18, 2013, S214264.) Pending the determination of our high court we shall, as did one of the decisions pending before the Supreme Court, hold the order to be appealable. (People v. Wortham (2013) 220 Cal.App.4th 1018, review granted Jan. 15, 2014, S214844.) Considering the merits of the appeal, defendant’s petition was properly denied. The two residential burglaries for which defendant was convicted in 1996 are “serious” felonies as defined in section 1192.7, subdivision (c)(18). Section 1170.126, subdivision (b) authorizes a person serving an indeterminate term of life imprisonment imposed pursuant to the three strikes law to petition for a recall of sentence only if the sentence was imposed upon a conviction of a felony that is “not defined as serious and/or violent felonies by subdivision (c) of section 667.5 or subdivision (c) of section 1192.7.”2 The