People v. Benedict CA4/3

Filed 4/17/14 P. v. Benedict CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048662

v. (Super. Ct. No. 95NF1353)

MICHAEL DAVID BENEDICT, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Michael David Benedict appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.126. His major contention is that the court erred in not giving him a jury trial to determine whether he was eligible for resentencing under that statute. The Attorney General argues the order is not appealable; even if appealable, the court properly denied the petition because defendant is not eligible under the statute. The appealability issue is pending in the California Supreme Court. (Teal v. Superior Court (People) review granted July 31, 2013, S211708.) While it is our view that the order is subject to appeal, we agree with the Attorney General the court properly denied the petition.

DISCUSSION