People v. Flenoury CA2/1

Filed 1/27/15 P. v. Flenoury CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B255596

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA094289) v.

JERRY EMMIT FLENOURY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Dismissed. Jerry Emmit Flenoury, in pro. per.; and Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

Appellant Jerry Emmit Flenoury was convicted of attempted first degree residential burglary, in violation of Penal Code sections 664 and 459,1 and subsequently found true two prior “strike” allegations. Flenoury was sentenced to state prison for 35 years to life, including 25 years to life as a third-strike offender and five years each for two serious prior conviction enhancements under section 667, subdivision (a)(1).2 On December 6, 2012, Flenoury filed a petition to recall his sentence pursuant to section 1170.126. On February 7, 2013, the trial court denied that petition on the ground that Flenoury’s conviction for attempted first degree burglary, a serious felony, rendered him ineligible for resentencing. On March 11, 2013, Flenoury filed another petition for recall of sentence pursuant to section 1170.126. On March 26, 2013, the trial court found again that Flenoury’s conviction rendered him ineligible for resentencing, and denied the petition with prejudice. Flenoury filed a third petition for recall on May 6, 2013, and a public defender was appointed to represent him. Flenoury stipulated that Judge Ryan (the same judge who had ruled on his two prior petitions) could determine that petition, which is the subject of this appeal. On March 6, 2014, Judge Ryan found that Flenoury’s conviction for attempted first degree burglary, a serious felony pursuant to section 1192.7, subdivision (c)(39), rendered him ineligible for resentencing under section 170.126, subdivision (e)(2). The court dismissed the petition, noting that if Flenoury wished to