California Court of Appeal Jun 24, 2014 No. E060685Unpublished
Filed 6/24/14 P. v. Strawn CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E060685
v. (Super.Ct.No. FSB06205)
THOMAS ALAN STRAWN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Thomas Alan Strawn appeals from an order denying his
petition for recall of an indeterminate life term under Penal Code section 1170.126,
subdivision (f).1 We affirm the order.
BACKGROUND
On December 19, 1994, defendant pled guilty to two counts of first degree
burglary (§ 459) and admitted to having two prior strike convictions (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)). On that date the trial court sentenced defendant, as agreed,
On November 6, 2012, the electorate passed Proposition 36, also known as the
Three Strikes Reform Act. Among other things, this ballot measure enacted section
1170.126, which permits persons currently serving an indeterminate life term under the
“Three Strikes” law to file a petition in the sentencing court, seeking to be resentenced to
a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court
determines that the defendant meets the criteria of section 1170.126, subdivision (e), the
court may, in its discretion, resentence the defendant. (§ 1170.126, subds. (f) & (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or
subdivision (c) of section 1170.12 “for a conviction of a felony or felonies that are not
1 All future statutory references are to the Penal Code unless otherwise stated.
2
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)
On January 9, 2014, defendant filed a petition for recall of sentence under section
1170.126. The trial court denied the petition on February 5, 2014, finding defendant
ineligible for resentencing under section 1170.126 because his current commitment
offenses for residential burglary are serious felonies. Defendant filed a timely notice of
appeal.2
DISCUSSION
We appointed counsel to represent defendant on appeal. After examining the
record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a
summary of the facts and potential arguable issues, and requesting this court conduct an
independent review of the record.
2 We note that the California Supreme Court has granted review in cases that have found that the trial court’s order on a postjudgment petition pursuant to section 1170.126 is a nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2), Cal. Rules of Court.) Even if we were to conclude it was a nonappealable order, we could consider, in the interest of judicial economy and because of uncertainty in the law, that defendant’s appeal is a petition for writ of habeas corpus or petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928 fn. 4 [treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 853 [Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to uncertainty in the law].) In People v. Leggett (2013) 219 Cal.App.4th 846, 854, the appellate court expressed that when a trial court must determine whether the prior convictions qualify under the resentencing provision, such issue is appealable. We will review defendant’s appeal.
3
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so.
Proposition 36 added section 1170.126, which applies exclusively to those
“persons presently serving an indeterminate term of imprisonment pursuant to paragraph
(2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of
Section 1170.12, whose sentence under this act would not have been an indeterminate life
sentence.” (§ 1170.126, subd. (a).) Section 1170.126 sets forth a procedure through
which certain prisoners can petition the court for resentencing. Such a person may file a
petition to recall his or her sentence and be sentenced as a second strike offender.
(§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if his or her
commitment offense does not constitute a serious or violent felony. (§ 1170.126, subd.
(e)(1).)
Defendant’s current convictions for residential first degree burglary are serious
felonies under California sentencing law. (See §§ 667, subd. (d)(1), 1192.7, subd.
(c)(18).) Defendant is therefore ineligible for resentencing under section 1170.126.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
4
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.