People v. Rogers CA6

Filed 12/3/14 P. v. Rogers CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041221 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. S7-09131)

v.

ROBERT WAYNE ROGERS,

Defendant and Appellant.

On March 30, 1998, defendant Robert Wayne Rogers was convicted by court trial of three counts of robbery (Pen. Code, § 211) and one count of felony false imprisonment (Pen. Code, § 236).1 It was also found that he suffered two prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and prior prison commitments (§ 667.5, subd. (b)). He was sentenced to serve 75 years to life consecutive to 17 years. Defendant was sentenced under the “Three Strikes” law prior to its amendment in 2012. On June 26, 2014, the defendant filed a petition for recall of sentence under the Three Strikes Law Reform Act (the Act) and section 1170.126. On July 2, 2014, the trial court denied the petition, finding the defendant ineligible for re-sentencing under the provisions of the Act because his current offenses include robbery. Defendant filed a

1 All future statutory references are to the Penal Code unless otherwise specified.

timely notice of appeal from the trial court’s order with a request for a certificate of probable cause on July 14, 2014. The court granted a certificate of probable cause on July 15, 2014. On appeal, we appointed counsel to represent appellant in this court. Appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano)), which states the case and the facts but raises no specific issues. In his brief defendant also concedes that there is currently a split of authority on the question of whether an order denying resentencing under the Three Strikes Reform Act is appealable. Some courts have found the order appealable. (People v. Soto (2014) 228 Cal.App.4th 967, review granted Oct. 15, 2014, S220865; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted Jul. 21, 2013, S212017.) However, others have found the orders not appealable, or subject to review only by writ. The issue is currently on review. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted Jul. 31, 2013, S211708.) We agree with the courts that have held that the order is appealable. (People v. Totari (2002) 28 Cal.4th 876, 881 (Totari).) The right of appeal is statutory, and a judgment or order is not appealable unless expressly made so by statute. (Totari, supra, 28 Cal.4th at p. 887; People v. Mazurette (2001) 24 Cal.4th 789, 792.) In Totari, the California Supreme Court concluded that a trial court’s denial of a motion to vacate a judgment based upon a guilty or nolo contendere plea for failure to advise a defendant of the potential adverse immigration consequences resulting from his or her conviction was appealable. (Totari, supra, 28 Cal.4th at p. 880.) Section 1016.5, which requires the advisement and provides for a motion to vacate where the advisement was not given, did not expressly authorize an appeal from the denial of such a motion to vacate, but the court concluded that an appeal was permissible pursuant to section 1237, subdivision (b). (Totari, supra, 28 Cal.4th at p. 887.) The court explained, “[T]he Legislature has established specific requirements for a motion to vacate under section 1016.5. Once the Legislature has determined that a 2