People v. Orr CA6

Filed 8/31/15 P. v. Orr CA6 Opinion on Rehearing NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041278 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC643445)

v.

TALYON JEROME ORR,

Defendant and Appellant.

Appellant Talyon Jerome Orr filed a notice of appeal from an order by the trial court denying his petition filed pursuant to Penal Code section 1170.1261 for recall of his indeterminate life sentence imposed under the original Three Strikes law (Prop. 184, § 1, as approved by voters, Gen. Elec. (Nov. 8, 1994)). Section 1170.126, added by Proposition 36 and effective November 7, 2012, permits a person serving an indeterminate term of imprisonment under the Three Strikes law to file a petition for recall of sentence and to request resentencing. The statute limits eligibility to those whose current convictions are for felonies that are not defined as serious or violent felonies under section 667.5, subdivision (c), or 1192.7, subdivision (c). (§ 1170.126, subd. (e)(1).) Facts and Proceedings Below On December 12, 2007, a jury convicted appellant of first degree burglary (§§ 459, 460, subd. (a), count 1) and receiving stolen property (§ 496, subd. (a), count 4).

1 All further statutory references are to the Penal Code unless otherwise indicated.

Appellant admitted that he had suffered three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two serious felony convictions (§ 667, subd. (a)) and had served two prior prison terms (§ 667.5, subd. (b)).2 Thereafter, on March 28, 2008, the court sentenced appellant to an aggregate term of 60 years to life in prison—two 25-to-life terms to be served consecutively for count 1 and count 4, consecutive to 10 years for the two serious felony priors.3 Subsequently, on June 24, 2014, in pro per, appellant petitioned the court for recall of his sentence pursuant to section 1170.126. In his petition, appellant listed his current felony convictions as “First Degree Burglary P.C. 459/460 (A)” and “Buying, Receiving, or Withholding Stolen Property P.C. 496 (A).” Appellant argued that his current felony offense “P.C. 459/460(A) is not defined as a serious or violent felony per Penal Code 1192.7 (c) or 667.5 (c) . . . .”4 The court denied the petition on July 1, 2014. In a written order, the court found appellant ineligible for resentencing because “Residential burglary is a serious felony as defined in Penal Code § 1192.7(c)(18). Thus because [appellant]’s current indeterminate sentence under § 667(e)(2) and 1170.12(c) was imposed for a serious/violent felony, [appellant] is not among the group of persons subject to the remedial provisions of Penal Code § 1170.126. [¶] Because the petition fails to state a prima facie case for relief, the request for appointment of counsel is DENIED.” Discussion On appeal, appellant contended that the “trial court got it ‘half-right’: [he] is plainly ineligible to be resentenced on the first degree burglary charge”; however, he argues that he is “clearly eligible to be resentenced as to the separate offense of receiving 2 On our own motion, we have taken judicial notice of the record in appellant’s previous appeal People v. Orr, (June 25, 2009, H032806) [nonpub. opn.]. 3 Appellant filed a notice of appeal in case No. H032806 raising various issues, which this court rejected. 4 Appellant is incorrect. His first degree burglary conviction is a serious felony (§1192.7, subd. (c)(18), and depending on the circumstances can be a violent felony (§ 667.5 subd. (c)(21).