P. v.
Filed 12/2/13 P. v. Anderson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
>
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN ANDERSON, Defendant and Appellant. | 2d Crim. No. B246479 (Super. Ct. No. SA050266) (Los Angeles County) |
In 2004, Benjamin Anderson
was convicted of robbery (Pen. Code,
§
211),
section 1192.7, subdivision (c)(19). Because
Anderson had two prior serious
felony convictions, he was sentenced to an indeterminate life term under the
Three Strikes law. (§§ 667,
1170.12.)
Following passage of the
Three Strikes Reform Act of 2012 (Reform Act), added by Proposition 36, Anderson
moved for an order recalling his sentence and resentencing him to a determinate
term sentence. (§ 1170.126.) Section 1170.126, subdivision (b), permits a
person serving an indeterminate term of life imprisonment under the Three
Strikes law for a conviction based on “a felony or felonies that are
felonies†to seek recall of the sentence.
(Italics added.) The trial court
determined that Anderson was
ineligible to seek relief under this statute
because
his conviction for robbery was based on a serious felony. Anderson
appeals the order denying his motion.
We appointed
in this appeal. After examining the
record, counsel filed an opening brief raising no issues and requesting that we
independently examine the record pursuant to People v. Wende (1979) 25
Cal.3d 436.
We advised Anderson
that he had 30 days within which to personally submit any contentions or issues
he wished to raise on appeal. Anderson
filed a 10-page supplemental brief with attachments on July 1, 2013.
With our permission, he filed a 14-page amended supplemental brief with
attachments on November 13, 2013. For the most part, the briefs reiterate the
arguments Anderson raised in the
trial court. They do not establish his
eligibility to seek recall of his sentence under 1170.126, subdivision (b), on
the basis that his commitment offense was not a serious or violent felony.
Having examined the
entire record, we are satisfied that appointed counsel has fully complied with
his responsibilities and that no arguable
issues exist. (People v.
Kelly
(2006) 40 Cal.4th 106, 123-124; People v.
Wende, supra, 25 Cal.3d at p.
441.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
William
C. Ryan, Judge
Superior
Court County of Los Angeles
______________________________
Richard B. Lennon, under
appointment by the Court of Appeal; Benjamin Anderson, in pro. per., for
Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are
to the Penal Code.
on the issue of whether a trial court’s order on a motion to recall the
sentence under the Reform Act is appealable.
After the opening brief was filed, the Supreme Court granted review in two
cases that reached opposite conclusions on the issue. (See Teal
v. Superior Court (2013) 217 Cal.App.4th 808, review granted July 31, 2013,
S211708 [order is nonappealable]; People
v. Hurtado (2013) 216 Cal.App.4th 941, review granted with hold pending
consideration of Teal, July 31, 2013,
S212017 [order is appealable].)
Subsequently, People v. Leggett (2013)
219 Cal.App.4th 846, 854, concluded that a trial court's order “denying relief
under [the Reform Act] is not appealable if it denies a [motion] that was
erroneously filed by an individual whose indeterminate three strikes sentence
is based on a conviction for any serious or violent felony.†A few weeks later, People v. Wortham (Oct. 24, 2013) 220 Cal.App.4th 1018 [163
Cal.Rptr.3d 654, 657] rejected Leggett’s reasoning,
and held that the trial court’s initial eligibility determination implicates a
defendant’s “substantial rights†and thus is appealable. Based on that authority, we will review Anderson’s
appeal.
