TEAL v. S.C.Real Party in Interest, The People, Answer Brief on the MeritsCal.November 12, 2013In the Supreme Court of the State of California BENNIE JAY TEAL, Petitioner, V. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, THE PEOPLE, Real Party in Interest. Case No. 8211708 NOV 1 2 2013 vwelsuce Clerk See Aes aAARUOERD Cesputy Second Appellate District, Division Seven, Case No. B247196 Los Angeles County Superior Court, Case No. NA026415 The Honorable William C. Ryan, Judge ANSWERBRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General VICTORIA B. WILSON Supervising Deputy Attorney General JAIME L. FUSTER Deputy Attorney General NoaudP.HILL Deputy Attorney General State Bar No. 190364 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone:(213) 897-8884 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Attorneysfor Real Party in Interest TABLE OF CONTENTS Page ISSUE PRESENTED.000....cccceeceecccccccesessecseecssecsecececescecevsseveseseseseusnanaeeseseauees 1 STATEMENT OF THE CASEuuu. ccccc ccc cccccccccccccccecsccnssesceecescusuevesseseccesauessss 1 SUMMARYOF ARGUMENT1... cccccsssscccsccsssssssescccscccccascsecersscccnaaessess 2 ARGUMENT.......ccceeececccssccsssscssevecccecssssececccececevesseseescsuuvsvereeseeseseuseauaeseescaenes 2 I. BECAUSE PETITIONER’S TRIGGERING OFFENSE UNDER THE THREE STRIKES LAW IS CURRENTLY DEFINED AS A SERIOUS AND/OR VIOLENT FELONY, HE HAD No STATUTORY RIGHTTO FILE A PETITION FOR RECALL OF SENTENCEIN THE TRIAL COURT, AND THE TRIAL COURT’S DENIAL OF HIS PETITION DOES NOT CONSTITUTE AN APPEALABLE ORDER. .......ccccccessssscceecceceueecess 3 A, The Three Strikes Reform Act of 2012........cccccesescceees 3 B. A Defendant WhoIs Statutorily Ineligible to File A Petition for Recall of Sentence under Penal Code Section 1170.126, Subdivision (b), May Not Appeal A Trial Court’s Order Denying the Petition Because Such an Order Does Not Affect His Substantial Rights........000..00. 6 C. Petitioner Had NoStatutory Right to File A Petition to Recall Sentence under Penal Code Section 1170.126, Because His Triggering Offense Is Based on the Commission ofA Crime Currently Defined As A Serious Felony, and As Such,the Denial of the Petition Did Not Affect His Substantial Rights and Does Not Constitute an Appealable Order............cceceescessseeees 18 CONCLUSION... cccscccsescessenetseesesseesseeeeestessesessessesaesesseserseessneessaeeaeenees 24 TABLE OF AUTHORITIES Page CASES Day v. City ofFontana (2001) 25 Cal.4th 268 oe.cccccsecseesecsssseeneeessensenseessesseesseseeeseeees 20 Hodges v. Superior Court (1999) 21 Cal.4th 109 ooceeceeecseesesssssessrcsseseessesssesseesseeesenseees 20 In re Kathy P. (1979) 25 Cal.3d 91.eccsesceseeseeerecesceseesaeesasessesessssssesseeneeseeesesses 17 Kwitset Corp. v. Superior Court (2011) 51 Cal.4th 310oeeeecseeseecnessecssessesesesessesseseseeceneesenes 20 Manduley v. Superior Court (2002) 27 Cal.4th 537 oo... ecceccssccssseeseesrsereerseeseesseceseescuseseasnsenseasease 19 People v. Acosta (2002) 29 Cal.4th 105 ...cecscsecsssesesstesseesesssnsenstenensesnsssnsesnsneaserensens 23 People v. Bachman (1955) 130 CalApp.2d 445ooeesseseeseesscerssteessescsnrsssersssesesssees 11 People v. Beck (1994) 25 Cal.App.4th 1095...eeeseceaceeseeseeseeeaeessesseesaeecnesenseeeens 7 People v. Birkett (1999) 21 Cal.4th 226 oo. ccseececcerereseeeseessesseesessecsesessssnseseaseneeeees 20 People v. Carmony (2004) 33 Cal.4th 367 occcccsessceseeseessecsecesessessssssecescnescesaeseasansenens 10 People v. Chlad (1992) 6 Cal.App.4th 1719...eeceseersseessseeeeresssseesessessvesaees passim People v. Druschel (1982) 132 Cal.App.3d 667.0... seecssesessssssssecsenssssesesseensessens 7,9, 24 People v. Gainer (1982) 133 Cal.App.3d 636.0... ccecceccsscecsesessscsssessessessesseeeesee 7,9, 24 ii TABLE OF AUTHORITIES (continued) Page People v. Gallardo (2000) 77 Cal.App.4th 971occeccesscestesseeesseeeeecseeeseeteeesseeees 13, 16 People v. James (2001) 91 Cal-App.4th 1147.cecsesecesestseeesseesrsseesseseseeeseeees 22 People v. Keener (1961) 55 Cal.2d 14.cecesseesntessetseeeeesseeeeessesteessessessseesecseeereaes 6 People v. Leggett (2013) 219 CalApp.4th 846.0... ccsccssssssseesssscsssssssssssesseeeseens passim People v. Loper (2013) 216 Cal.App.4th 969... ccsccsecsscseserecssessesseesecseesstesseeesseees 8 People v. Mazurette (2001) 24 Cal.4th 789 ooccccesscccssessscsesseesseecsseessssessseeseeeeesessntseeses 6 People v. McGee (2006) 38 Cal.4th 682 oeeescsecsecesecsssesessesssesaeesesessseeeseseessesees 14 People v. Morgan (1957) 148 Cal.App.2d 871eccscsccsesetsestecesessessessssscssesseseesnseeees 10 People v. Neely (2004) 124 CalApp.4th 125800. cecscsstccssecseesessseessessesseesresesseees 22 People v. Niren (1978) 76 CalApp.3d 850... cescccscstscseetscssecetsssseseesncesseseereesessavens 7 People v. Park (2013) 56 Cal.4th 782 ooeescessesseceseeeessecesesssesseesssesessserscseseees 20 People v. Picklesimer (2010) 48 Cal4th 330 ooecscsscessesseetessceesseesesssesesssstesssersseees18 People v. Pritchett (1993) 20 CalApp.4th 190.0... ccceccscecscsseeesecsseseseecsesesseressvaspassim ili TABLE OF AUTHORITIES (continued) Page People v. Ringo (2005) 134 Cal.App.4th 870... ec esesscrsssssseneensessenscessenrssnserssneneees 19 People v. Stein (1948) 31 Cal.2d 630... cecsesecsecessceessscsressessessseeserensessesereeneenes 10 People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279. .cccccccscsenecseeeseeeseenenesses 3, 18, 21 People v. Thomas (1959) 52 Cal.2d S21eeeescsssseecssssssssssesssesesessesseessesseseseneesseeaees 13 People v. Totari (2002) 28 Cal.4th 876 oeceeecsseccsssssseecsresessrersseessaseessrsneesneees passim People v. Tuttle . (1966) 242 Cal.App.2d 883.0... cesssesssssessecsseseeseeeseeessecsseesseseenes 7,8 People v. Walker (2002) 29 Cal.4the 577 voce ceccsseessesscsssssecsssssssesesssseessesssesesseensesees 22, 23 People v. Wende (1979) 25 Cal.3d 436... ceeeeesessecsecssesssenssrsresassessenesessseeesssensens 1, 18 People v. Wiley (1995) 9 Cal.4th 580 ooecccesseessssescssssesesecsssseessnesseessesseeessessenes 14 People v. Williams (1965) 238 Cal.App.2d 585oeeccscssessssssssseeseneecseeesseeneesseeeseesnees 17 People v. Wortham (Oct. 24, 2013, A138769) ——- Cal.4th [2013 WL 5755193] ....eeeeecesseeerecsseeesessssessssssssasesseeeesseeeeseeseeees 15, 16 People v. Yearwood (2013) 213 CalApp.4th 161.eesecssseesccsesssetersrerseeesseenes 4,21, 22 Rescue Army v. Municipal Court (1946) 28 Cal4th 460 oocccccssesscssssesssesseseeseesseeeseeseesseenesrsrees 11 iv TABLE OF AUTHORITIES (continued) Page Robert L. vy. Superior Court . (2003) 30 Cal4th 894 oo cccssccsccsscessscssesssesssessseseasscsecsetcnesenesenees 20 Thomas v. Superior Court (1970) 1 Cal.3d 788.00... cccccsesssccssessscsssessssecssssessessneesseeseeenes 2, 7,9, 24 STATUTES Pen. Code SLBG.Leeeesesesesseessesceccsseesseeeseessecssesseseseseeseeeseeecsessseceesseseserseatenss 22 § 44eeeecccenecsseesseseetserecseseenecseecsaevsesesessesseessessseecsecsuesaeeeseecsesensens 22 § 245, SUDA. (A)(1) eee ceccccsssccsecesesstcssscseessesnecsseceseessesensessaseeesssseseens 22 § 246oeceececeenseesecseeesnecevsnsecsseecsueessneessecenesnscsensessenesestessenseaseessavacs 22 FDlcecccccsstecssscsseessscecseteesensessaecssasesssesuseutessstecesseesesees 1, 2, 18, 19 § O44oceeecceseesseeeecseeceneeceecssnecsaecseessuecsusseseessssecsasseseceaeeasecenensuseeuaas 10 § 667 oo eeccecsesessscssescssecsosscssecsssceusessscnsssesasesesseeeeseecsaesarseseseausans 3, 23 § 667, SUAS. (b)-(i)......e ce cecessssssecseesseesssessessatecseeeeessenseueesssessssseuscenees 1 § 667, SUD. (€)(2) ec ecceccccersessessteeseecssessesaeeseseecesseccsersssssssesecsseenseas 19 § 667, SUDA. (€)(2)(C).... ce ceessecscstessscsscsssessessecsssceasessesssseseesseessnsaas 4,6 § 667, subd. (€)(2)(C)G)-Cili) oo. eceeeescesessecsecssecseeesserseessescnesenssesnees 23 § 667, subd. (€)(2)(C)(IV).....cesscscsessssessesssesseeseeessecsscessssesscsssesssanenaeas 6 § 667, SUDA. (I)... eceeessesseecteesseessecesceseseesssesseeesresrecsesceesssstansens 23 § 667.5 eee eeccecessssscesecsseecesscssesssscseesessessessesaessseesaressesessesrssssessevars 6, 4 § 667.5, SUDA. (C) occceeccccessecssseesteecsscessesseesseecseecessesessesseeoseaes passim § 1016.5eeeeesscssesseecesseeesssseesecseecsssssessetesseesecstceseessrssssasesenarens 11 § 1016.5, SUB. (2)...ee ceceesessscesssecssecesscsesseeteesetereessessuessasesseees 11,12 § 1016.5, SUDA. (BD)... eee cecseceecssesssesssesssesseseceeessueccsaseesssuessesseeeneens 12 § 1168eeeseccneseeteeecessseeecsetseneesssssesseesaecsesesstessesessesescsstsnesassuans 7 § L170eecccesecseeecsnsssetcssessesensssessssessessseneecseeesatesseessessnsassenegs 3 § 1170.12, subds. (8)-() 0... .eeseesscessseeseeessceseeessescessesessesecssssssseseseeaes ] § 1170.12, subd. (C)(2) vc eeeeesccsecssecscsessessessessssessessesessersnse seesseveeeeens 19 § 1170.12, subd. (C)(2)(C) onc cecesesccsessssssesecsesssesscssseseesseseeeseessceeseeseass 6 § 1170.12, subd. (C)(2)(C)(i)-(ii)oieeeecteeescesseeetscsssessscssessssesaces 23 § 1170.12, subd. (C)(2)(C)V) oo... cceecccessesseesseesssecssaeesseeessesssstecsessress 6 § 1170125eeecceseceeesneseeeeeesseeesssceessessessascsseseesesseccseecsrssesssteeas 23 § 1170126eeeeneereseeeseessessaerseesareeestaeseessaecssteeeseneesarenes passim § 1170126, SUDA. (4)...ee eccecseceecescesssseeessessecsssesssesasesseesssesevenseass 4 § 1170.126, SUB. (b)..... ee eeececessecssessseseeseesssesseretecsesesssesessns passim TABLE OF AUTHORITIES (continued) Page § 1170.126, subds. (b), (€) & (f) ee ceececsesecsseseseessteeenseesnesteesesentenes 13 § 1170.126, SUD. (€).....ceeeceeeseesteceeeenereeseesesesseeesseseessenseeeaeessnees 6, 14 § 1170.126, subd. (€)(1) nce eeeeceseecseeeenreetressteesseesesssesscaeeeenteeeesseeses 19 § 1170.126, subd. (€)(2) ..ceceeeseeseeesceesteseneesssersseneeees seseeeeaeeeneeeneeees 23 § 1170.126, SUD. (f) oo... eeccceereeseeeseeceeeeeneceseeesuseecssassnsesesaresstesee 13,6 § 1170.126, subds. (f) & (€)(2)-(3) oe eeeeeesceeeseseeesesesecseeeeereeneesseeees 15 ~ § 1.170.126, SUD. (2)... ee eeeeseeseeeseereeesseersnenssessessssesseresseseeesseenseses 6 § 1192.7 i eccecccesscesssessecsssesseeseecaeseneesseeceecsneesssesessssesesecsueacseaenee 18, 19 § 1192.7, SUDA. (C) oo... eeceeseeteeeerseeeseeseseeeseeesssereesessaeecsaeaveaeeease passim § 1192.7, subd. (C)(38) oc ceesceeeeereeseesteesseeseseeesnessessnsssanenseeseeaees 2, 18 § 1237, SUD. (D)....cecccsceseeeerseeereceteeseeeresceseesenesieessesesessenressesenseeneees 7 § 1385 ic ceessecssescssecstecesecenerseestecsseesneeeseersceesseesssessecsensenstssitesseetsaeags 10 § 26100, subds. (C)-(d) oo. ceeeeeeeeetreeeeeeeeeesseesecsseeeneencsveneacsauenesaeantens 22 Welf. & Inst. Code § S501, SUDK. (C)... eee eecceeeesrecseesneeenrececesssesessessesssessanscsarsesensesteeneenes 11 OTHER AUTHORITIES Three Strikes Reform Act Of 2012 oo... ..ccccccsececesssesscneeecececeeseeeeeeeeeees 1,3. vi ISSUE PRESENTED Did petitioner have the right to appeal the trial court’s denial of his petition to recall his sentence under. Penal Code section 1170.126, part of the Three Strikes Reform Act of 2012, when the trial court held he did not meetthe threshold eligibility requirements for resentencing? STATEMENT OF THE CASE On April 1, 1996, a Los Angeles County jury convicted petitioner of one count of making criminal threats (Pen. Code, § 422). (ICT 2, 10.) The trial court foundthat petitioner had suffered four prior convictions within the meaning of the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). (1CT 3-4.) On November 18, 1996,the trial court sentencedpetitioner to a total of 25 years to life in state prison pursuant to the Three Strikes Law. (1CT 3, 10.) On December6, 2012, petitioner filed a petition for recall of sentence in the trial court pursuant to Penal Code section 1170.126. (ICT 1-26.) On January 22, 2013, the trial court considered and denied the petition on the groundthat petitioner’s “current offense is a serious and/or violent felony.” (1CT 28.) Petitioner filed a timely notice of appeal, purporting to appealthetrial court’s denial of his petition to recall sentence. On June 13, 2013, | petitioner filed an Opening Brief in the Court of Appeal presenting no arguable issues and requesting that the Court conduct an independent review ofthe record pursuant to People v. Wende (1979) 25 Cal.3d 436. On June 19, 2013, the Court of Appeal issued an order concluding that the trial court’s order denying petitioner’s petition to recall sentence wasnot appealable. (Opn. at 2.) The Court of Appeal construed the petition to recall petitioner’s sentence as a petition for writ of mandate and denied the petition. (Opn.at 3-4.) On July 1, 2013, petitioner filed a petition for review in this Court. On July 31, 2013, this Court granted the petition for review. SUMMARY OF ARGUMENT Where,as in the instant case, a defendant’s triggering offense under the Three Strikes Law wasfor an offense that is currently defined as a serious and/or violent felony (Pen. Code, §§ 667.5, subd. (c), 1192.7, subd. (c)), the defendant has nostatutory right to file a petition for recall of sentence pursuant to Penal Code section 1170.126 in the first instance. (Pen. Code, § 1170.126, subd. (b).) Moreover, Penal Code section 1170. 126 does not give the trial court the authority to consider a defendant’s eligibility for relief or to exercise discretion to resentence a defendant on its own motion. Accordingly,a trial court’s threshold determination that a defendant’s triggering offense is currently defined as a serious and/or violent felony constitutes a finding that a petition forrecall of sentence should not have beenfiled in the first instance, and such an order does notaffect that defendant’s substantial rights and is not appealable. (Pen. Code, § 1170.126, subd. (b); see People v. Totari (2002) 28 Cal.4th 876, 883, 886-887; Thomas v. Superior Court (1970) 1 Cal.3d 788, 790; People v. Leggett (2013) 219 Cal.App.4th 846, 850-854; People v. Pritchett (1993) 20 Cal.App.4th 190, 193-195.) Petitioner’s triggering offense under the Three Strikes Law wasfor making criminalthreats in violation of Penal Code section 422. (1CT 2, 10.). Because this offense is currently defined as a serious felony (Pen. Code, § 1192.7, subd. (c)(38)), petitioner had no standingto file his recall petition in the first instance, and thetrial court’s denial of his recall petition is not appealable. ARGUMENT I. BECAUSE PETITIONER’S TRIGGERING OFFENSE UNDER THE THREE STRIKES LAW IS CURRENTLY DEFINED AS A SERIOUS AND/OR VIOLENT FELONY, HE HAD NO STATUTORY RIGHT TO FILE A PETITION FOR RECALL OF SENTENCEIN THE TRIAL COURT, AND THE TRIAL COURT’S DENIAL OF HIS PETITION DOES NOT CONSTITUTE AN APPEALABLE ORDER Petitioner contends that whenever a criminal defendantfiles a petition for recall of sentence pursuant to Penal Code section 1170.126, and thetrial court concludesthat the defendantis statutorily ineligible for resentencing, the trial court’s denial of the petition implicates the substantial rights of that defendant and constitutes an appealable order. (POBM 1-13.)' Real party in interest disagrees. Where, as in the instant case, a defendant’s triggering offense under the Three Strikes Law wasfor a felony that is currently defined as serious and/orviolent, that defendant has no statutory right to file a petition for recall of sentencein the first instance, and as such, the denial of that petition does not implicate the defendant’s substantial rights and is not appealable. A. The Three Strikes Reform Act of 2012 On November6, 2012, the electorate approved Proposition 36, the Three Strikes Reform Act of 2012 (hereafter the “Act”), which amended Penal Codesections 667 and 1170.12, and added section 1170.126 to the Penal Code. The Act’s effective date was November7, 2012. Prior to the Act’s enactment, the Three Strikes Law provided that a recidivist offender with two or moreprior qualifying strikes was subject to an indeterminate life sentence if convicted of any new felony offense. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285- ' “POBM”refers to petitioner’s Opening Brief on the Merits. 1286; People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.) The Act now reserves the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a secondstrike offender. (People v. Yearwood, supra, 213 Cal.App.4th at pp. 167-168; see also Pen. Code, § 667, subd. (e)(2)(C) [a defendant with two prior strikes whose current conviction is not defined as a serious or violent felony shall be sentenced as a secondstrike offender], 1170.12, subd. (c)(2)(C) [same].) The Act also created a procedure for “persons presently serving an indeterminate term of imprisonment” under the former Three Strikes Law “whose sentence under this [A]ct would not have been an indeterminate life sentence.” (Pen. Code, § 1170.126, subd.(a).)? Under the Act, any * Penal Codesection 1170.126 provides,in relevantpart: (a) The resentencing provisions underthis section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonmentpursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence underthis act would not have been an indeterminate life sentence. (b) Any person serving an indeterminate term oflife imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph(2) of subdivision (c) of Section 1170.12 upon conviction, whetherbytrial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, mayfile a petition for a recall of sentence, within two years after the effective date of the act that addedthis section or at a later date upon a showing of good cause,beforethetrial court that entered the judgment of conviction in his or her case, to request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amendedbythe act that addedthis section. (continued...) person serving a Three Strikes sentence, whose triggering offense is not defined as serious or violent (see Pen. Code §§ 667.5, subd.(c), 1192.7, subd. (c)), mayfile, before the court that entered the judgment of conviction, a “petition for a recall of sentence” within two years ofthe date (...continued) (c) No person whois presently serving a term of imprisonmentfor a “second strike” conviction imposed pursuant to paragraph (1) of subdivision (e) of Section 667 or paragraph (1) of subdivision (c) of Section 1170.12, shall be eligible for resentencing underthe provisionsofthis section. (d) The petition for a recall of sentence described in subdivision (b) shall specify all of the currently charged felonies, which resulted in the sentence under paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, or both, and shall also specify all of the prior convictions alleged and proved undersubdivision (d) of Section 667 and subdivision (b) of Section 1170.12. (e) An inmate is eligible for resentencingif: (1) The inmateis serving an indeterminate term oflife 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 defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. (2) The inmate’s current sentence was not imposed for any of the offenses appearing in clauses(1) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses(i) to(iii), inclusive, of subparagraph (C) ofparagraph (2) of subdivision (c) of Section 1170.12. (3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) ofparagraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) ofparagraph (2) of subdivision (c) of Section 1170.12. (f) Uponreceiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonablerisk of dangerto public safety. of the Actor at a later date on a showing of good cause. (Pen. Code, § 1170.126, subd. (b).) Pursuant to Penal Code section 1170.126, a defendantis eligible for resentencing if: (1) the defendantis serving an indeterminate term oflife imprisonment imposed underthe Three Strikes Law for a conviction of a felony that is not defined as serious and/or violent (see Pen. Code, §§ 667.5, 1192.7, subd. (c)); (2) the defendant’s current sentence was not imposed for disqualifying offenses specified in Penal Code sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C); and (3) the defendant has no prior convictions for offenseslisted in Penal Code sections 667, subdivision (e)(2)(C)(iv), and 1170.12, subdivision (c)(2)(C)(iv). (Pen. Code, § 1170.126, subd.(e).) If a trial court determines that the defendantsatisfies this criteria, then it shall resentence the defendant as a secondstrike offender, “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonablerisk of danger to public safety.” (Pen. Code, § 1170.126, subd. (f).) In exercising its discretion, the trial court may consider the defendant’s criminal conviction history, disciplinary record and record of rehabilitation while incarcerated, and any other evidence the court, in its discretion, determines to be relevant. (Pen. Code, § 1170.126, subd. (g).) B. A Defendant WhoIs Statutorily Ineligible to File a Petition for Recall of Sentence under Penal Code Section 1170.126, Subdivision (b), May Not Appeal a Trial Court’s Order Denying the Petition Because Such an Order Does Not Affect His Substantial Rights An orderis not appealable unless it has been “declared to be so by the Constitution or by statute.” (People v. Keener (1961) 55 Cal.2d 714, 720; see also People v. Totari, supra, 28 Cal.4th at pp. 881-882; People v. Mazurette (2001) 24 Cal.4th 789, 792.) The Act does not address whether a trial court’s denial of a petition to recall sentence under Penal Code section 1170.126 is appealable. However, Penal Code section 1237, subdivision (b), provides that an appeal maybe taken by a defendant, “(from any order made after judgment, affecting the substantial rights of the party.” A defendant’s “substantial rights” include those involving “the charge against [him]or his rights affected by that charge.” (People v. Tuttle (1966) 242 Cal.App.2d 883, 885; see also People v. Beck (1994) 25 Cal.App.4th 1095, 1104.) Where the Legislature or electorate has bestoweda statutory post- judgmentright upona specific class of defendants, it is appropriate to review the denial of that right by way of appeal. (See People v. Totari, supra, 28 Cal.4th at pp. 883, 886-887; see also People v. Leggett, supra, 219 Cal.App.4th at pp. 850-851; People v. Pritchett, supra, 20 Cal.App.4th at pp. 193-195.) However, where a particular class of defendants has no statutory right to seek post-judgmentrelief, a trial court’s denial of such a defendant’s request for relief does not implicate the defendant’s substantial rights and does not constitute an appealable order. (See Thomas v. Superior Court, supra, 1 Cal.3d at p. 790 [the denial of a motion to recall sentence under a former version of Penal Code section 1168 does not constitute an appealable order because the Legislature “did not intend that a proceeding underthe provision beinitiated by a prisoner but rather by the court or the Director of Corrections”]; People v. Pritchett, supra, 20 Cal.App.4th atp. 194 [the denial of a motion to recall sentence under Penal Code section 1170, subdivision (d), does not implicate a defendant’s substantialrights because a defendant has no standing to make such a motionin thefirst instance]; People v. Chlad (1992) 6 Cal.App.4th 1719, 1726 [same]; People © v. Gainer (1982) 133 Cal.App.3d 636, 640-642 [same]; People v. Druschel (1982) 132 Cal.App.3d 667, 669 [same]; People v. Niren (1978) 76 Cal.App.3d 850, 851 [same]; People v. Tuttle, supra, 242 Cal.App.2d at p. 885 [defendant’s post-trial motion for the return ofproperty remaining in the custody of the police “was without statutory authorization,”andthetrial court’s order denying the motion “could not have affected any substantial right subject to that action”].) A defendant’s “‘substantial rights’ cannot be affected by an order denying that which he hadnoright to request.” (People v. Pritchett, supra, 20 Cal.App.4th at p. 194.) Penal Codesection 1170.126 authorizes only those defendants serving an indeterminate term of imprisonment under the Three Strikes Law, whose triggering offense is not currently defined as a serious and/or violent felony, to file a petition for recall of sentence. (Pen. Code, § 1170.126, subd.(b).) Penal Codesection 1170.126, subdivision (b), provides: Any person serving an indeterminate term oflife imprisonment imposed pursuantto paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whetherbytrial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two years after the effective date of the act that added this section or at a later date upon a showing of good cause, before thetrial court that entered the judgmentof conviction in his or her case, to request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amendedbythe act that addedthis section. The statute, by its express terms, permits only those individuals serving an indeterminate term under the Three Strikes Law, whose 3 This Court is currently considering whethera trial court’s order denyingthe recall of an inmate’s sentence for compassionate release purposes under Penal Codesection 1170, subdivision (e), constitutes an order appealable by the inmate himself, in People v. Loper (2013) 216 Cal.App.4th 969, review granted Sept. 11, 2011 (S211840). triggering offense is not currently defined as a serious and/or violent felony offense, to file a petition for recall of sentence. (Pen. Code, § 1170.126, subd. (b); People v. Leggett, supra, 219 Cal.App.4th at p. 852 [Penal Code section 1170.126, subdivision (b), “expressly limits the right to petition the court.”].) A defendantserving an indeterminate term of imprisonment under the Three Strikes Law whosetriggering offense is currently defined as a serious and/or violent felony may notfile a petition for recall of sentence, and as such,a trial court’s denial of such a petition does not implicate the substantial rights of that defendant, and thetrial court’s order is not appealable. (People v. Leggett, supra, 219 Cal.App.4th at p. 852 [“Since the statute creates the substantial right essential for appealability, it would be anomalousto include within the class of persons that may appeal a person whoshould not havefiled a petition for recall of a sentence under the plain language of section 1170.126 in the first instance”), italics in original; see also People v. Totari, supra, 28 Cal.4th at pp. 881-883, 886- 887; Thomas v. Superior Court, supra, 1 Cal.3d at p. 790; People v. Pritchett, supra, 20 Cal.App.4th at p. 194; People v. Chlad, supra, 6 Cal.App.4th at p. 1726; People v. Gainer, supra, 133 Cal.App.3d at pp. 640-642; People v. Druschel, supra, 132 Cal.App.3d at p. 669.) Petitioner appears to cast the issue of appealability as hinging on the trial court’s jurisdiction or authorization to providerelief to the defendant, rather than on a defendant’s ability to seek relief on his own motion. (POBM 11.) However, Penal Code section 1170.126 does not provide a trial court with the powerto initiate recall proceedings, or to resentence a defendant pursuant to the Act, on its own motion. The statute expressly provides that such proceedings mayonly beinitiated by those defendants serving an indeterminate term of imprisonment underthe Three Strikes Law whosetriggering offense is not currently defined as a serious and/or violent felony. (Pen. Code, § 1170.126, subd. (b).) Penal Code section “1170.126 confers on the trial court limited jurisdiction to consider petitions by inmates with indeterminate sentences underthe three strikes law, provided the current conviction is not for a serious or violent felony.” (People v. Leggett, supra, 219 Cal.App.4th at p. 853; compare Peoplev. Carmony (2004) 33 Cal.4th 367, 375-376 [becausea trial court may, onits own motion, order an action dismissed in furtherance ofjustice under Penal Code section 1385, and because a defendanthasa right to invitethe trial court to exercise that power,a trial court’s order denying to exercise such discretion on behalf of a defendant is appealable]; People v. Stein (1948) 31 Cal.2d 630, 633 [where thetrial court had the discretion to relieve a defendant of a determination of habitual criminal status under former Penal Codesection 644, within a given time period, an order denying a defendant’s motion for relief, rendered within the applicable time period, constituted an appealable order].) Because a defendant whosetriggering offense under the Three Strikes Lawis currently defined as a serious and/or violent felony has no standing ~ to file a petition for recall of sentencein the first instance, and because a trial court has no powerto initiate those proceedings on a defendant’s behalf or provide relief to such a defendant on its own motion,a trial court’s order denying a recall petition based on the “jurisdictional” ground that the defendant’s triggering offense is currently defined as a serious and/or violent felony does not constitute an appealable order. (See People v. Stein, supra, 31 Cal.2d at p. 633; People v. Leggett, supra, 219 Cal.App.4th at pp. 853-854; People v. Chlad, supra, 6 Cal.App.4th at p. 1726 [wherethe trial court lacks jurisdiction to grant post-conviction relief to a defendant, the denial of the defendant’s motion does not affect that defendant’s substantial rights and is not appealable]; People v. Morgan (1957) 148 Cal.App.2d 871, 872 [the trial court’s denial of defendant’s motion to vacate the judgmentdid not constitute an appealable order where 10 the trial court lacked jurisdiction to entertain the motion]; People v. Bachman (1955) 130 Cal.App.2d 445, 451 [trial court’s denial of defendant’s motion to determine whether he was a sexual psychopath under former Welfare and Institutes Code section 5501, subdivision (c), did not constitute an appealable order, becausethetrial court lacked jurisdiction to make such a determination].) Petitioner errs in suggesting thata trial court’s conclusion that a defendant’s triggering offense is currently defined as serious and/or violent is appealable because it constitutes an “examination ofthe issue on the merits.” (POBM 12.) For the purposes of determining appealability, a finding on a threshold legal issue pertaining to the defendant’s authorization to file a motion requesting relief should be distinguished from a determination of the merits of a particular claim to which a defendantis entitled by statute to raise in a trial court, even if those determinations might overlap. (See People v. Totari, supra, 28 Cal.4th at p. 885, fn. 4; Rescue Army v. Municipal Court (1946) 28 Cal.4th 460, 464,[a trial court “has jurisdiction to determine its ownjurisdiction, for a basic issue in any case beforea tribunalis its powerto act, and it must have authority to decide that question in the first instance.”].) In People v. Totari, supra, 28 Cal.4th 876, this Court concluded that the defendant wasentitled to appeal from the trial court’s denial ofhis statutory motion to vacate a judgment under Penal Codesection 1016.5. Thestatute required that, before accepting a plea of guilty or no contest to a criminal offense, a trial court must advise the defendantthat if he or she is not a United States citizen, conviction of the offense mayresult in deportation, exclusion from admission to the United States, or denial of naturalization. (Id. at p. 879; Pen. Code, § 1016.5, subd. (a).) The statute also provided a remedy in cases.wherethe trial court failed to provide the required advisements to a defendant, stating: 1] If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant showsthat conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequencesfor the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw theplea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed notto have received the required advisement. (Ud. at p. 881; Pen. Code, § 1016.5, subd.(b).) The defendant in Totari, “documented that the reporter’s transcript and court reporter’s notes of [his] guilty plea hearing had been destroyed, as authorized by Government Code section 68152.” (People v. Totari, supra, 28 Cal.4th at p. 880.) Thereafter, the trial court considered and denied the defendant’s motion to vacate the judgment on the groundsthat the defendant had been unreasonably dilatory in seeking relief. ([bid.) On appeal, this Court concludedthat the trial court’s order denying the motion to vacate the judgment was an appealable order, and in so doing, it rejected the People’s argumentthat the defendant’s substantial rights had not been violated by the trial court’s ruling because the record established that the defendant knew ofthe immigration consequencesofhis plea before entering that plea, and as such, he could not establish prejudice, a necessary elementfor relief on a motion to vacate a judgment. (People v. Totari, supra, 28 Cal.4th at pp. 884-885.) This Court concludedthat, “Ifwe accept the Attorney General’s argument, an issue to be determined on the merits is itself the test of appealability. Because the procedural question depends ona resolution of the merits, that question must be made on a case-by-case basis. We decline to adopt the Attorney General’s proposal.” (Id. at p. 884.) 12 Unlike the underlying ruling in Totari, the threshold determination madebythetrial court in this case was not a determination on the merits, but a finding that petitioner was notentitled to file the recall petition in the first instance. (See Pen. Code, § 1170.126, subd. (b); see People v. Leggett, supra, 219 Cal.App.4th at p. 853 [“whether a petitioner was qualified tofile the petition in the first instance” constitutes a “threshold determination”]; see also People v. Totari, supra, 28 Cal.4th at p. 886 [“the issue of jurisdiction is a legal one,” which may be decided on a case-by-case basis]; People v. Thomas (1959) 52 Cal.2d 521, 528 [“When the question of jurisdiction is presented .. . by appeal from the order of denial, the appellate court’s determination as to the appealability of the order will ordinarily depend uponits decision of the merits of the appeal,i.e., uponits determinationwhether there was indeed a jurisdictional defect”]; People v. Gallardo (2000) 77 Cal.App.4th 971, 985 [“appealability depends upon the nature of the decision made, not the court’s justification for its ruling”].) Unlikethe statute at issue in Totari, Penal Code section 1170.126, subdivision (b), specifically excludes a particular class of defendants from seeking relief in the first instance. A trial court’s threshold legal determination regarding whether a defendantis includedin a class of defendants precluded from seeking relief under a statute is not a determination on the merits of that defendant’s requestforrelief.’ * While Penal Code section 1170.126, subdivision (f), requires the trial court, upon receiving a petition for recall of sentence, to make determinations regarding a defendant’s eligibility for resentencing under the statute, including the determination that the triggering offenses is not for an offense that is defined as a serious and/or violent felony, once the trial court has madethe threshold determination that a defendant’s triggering offense is for an offense that is defined as serious and/or violent, it should dismiss the petition. (See Pen. Code, § 1170.126, subds.(b), (e) & (f).) Stated differently, the statute creates a class of defendants (continued...) 13 The determination regarding whether a defendant’s triggering offense underthe Three Strikes Law is currently defined as serious and/or violent under Penal Code sections 667.5, subdivision (c), and 1192.7, subdivision (c), is “straightforward and beyonddispute.” (People v. Leggett, supra, 219 Cal.App.4th at p. 853.) It is purely a legal inquiry, and to the extent it requires any factual determinations, theses are facts that are “readily ascertainable upon an examination of court documents.” (People v. Wiley (1995) 9 Cal.4th 580, 590; see also People v. McGee (2006) 38 Cal.4th 682, 706 [the determination of whether a prior conviction qualifies as a serious and/or violent felony is “a limited one and mustbe based uponthe record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted.’’].) A trial court’s determination on this issue does not require it to make findings beyondthe established elements of the defendant’s triggering convictions and any attendant enhancements foundtrue by the trier of fact. In the vast majority of cases, a trial court must simply determine whether a defendant’s triggering offense is, on its face, one of the offenseslisted as a serious and/or violent in Penal Code sections 667.5, subdivision (c), or 1192.7, subdivision (c). Moreover, the act of determining whethera triggering felony is serious and/or violent is manifestly less involved that determining whethera prior offense constitutes a strike under the Three Strikes Law, because no foreign convictions are involved, and because, as explained in subsection (c), post, the determination regarding the nature.ofthe triggering offense is to be made with respect to the current enumeratedlists of serious and violent (...continued) authorizedto file petitions for recall of sentence (Pen. Code, § 1170.126, subd. (b)), and a subclass of persons whoare eligible for resentencing pursuant to such petitions (Pen. Code, § 1170.126, subd. (e)). 14 felony offenses. The fact that a trial court has to make legal findings in determining whether a defendant wasauthorizedto file his petition in the first instance should not renderthe trial court’s decision appealable. (See People v. Chlad, supra, 6 Cal.App.4th at p. 1725 [the determination that the trial court’s order denying defendant’s motion to modify sentence was not appealable becausethe trial court lacked jurisdiction to modify the sentence necessarily included the threshold finding that thetrial court lost jurisdiction based on the passage of time between the date of sentencing and the date the defendantfiled his motion in thetrial court].) Division Fourofthe First Appellate District recently concluded that all statutory eligibility determinations under Penal Code section 1170.126 are appealable. (People v. Wortham (Oct. 24, 2013, A138769) _—_—Cal.4th ___,____ [2013 WL 5755193, *1-3]). Real party in interest disagrees with the rationale of Wortham,as it failed to consider subdivision (b) of Penal Code section 1170.126, which specifically precludes those defendants whosetriggering offenseis for a serious and/or violent crime from filing the petition for recall in the first instance. (/bid.) Instead, Wortham cominglesall eligibility determinations madebya trial court under subdivisions (b), (f), and (e)(1)-(3), and concludes, without elaboration or specification, that because “some”eligibility determinations “may not be straightforward,” a mistake would “affect a petitioner’s substantial rights because the mistaken determination would foreclose the possibility of a reduced sentence.” (/d. at *2.) Real party in interest does not challenge the appealability ofa trial court’s eligibility determination under Penal Code section 1170.126, subdivisions (f) and (e)(2)-(3), only theinitial determination under subdivisions (b) and (e)(1), which would render a petition improperly filed. Wortham also misapprehends whois eligible to file a recall petition in the first instance. (People v. Wortham, supra, ___Cal.4th__— [2013 WL 15 5755193, *1] [stating that the Penal Code section 1170.126 “allows inmates sentenced under the previous version of the Three Strikes Law to petition for a recall of their sentence if they would not have been sentenced to an indeterminate life sentence under the Reform Act (§ 1170.126, subds. (a)- (b).)”].) In actuality, it is only those inmates whosetriggering offense is currently defined as serious and/or violent, and any other defendant not sentenced to an indeterminate term as third striker under the Three Strikes Law, whoare precluded from filing the petition in the first instance. (Pen. Code, § 1170.126, subd. (b).) Simply put, Wortham errs in concluding that a trial court’s “consideration ofa petition under the Reform Act is a two- step process.” (People v. Wortham, supra, __ Cal.4th —__ [2013 WL 5755193, *1].) It is a three-step process, with the first step being the threshold determination as to whetherthe petition is properly filed in the first instance. (Pen. Code, § 1170.126, subd. (b)). If it is not, it should be dismissed. Moreover, the court’s conclusion in Wortham that it perceives“little practical difference in reviewinga trial court’s order for correctness before dismissing it as nonappeablable and in reviewing the order for correctness before affirming it” (People v. Wortham, supra, __Cal.4th [2013 WL 5755193, *1]), should not drive this Court’s determination on the question of appealability. Where, as in the instant case, and in Worthamitself, a defendantis statutorily ineligible to file the recall petition in the first instance becausehis triggering offense is currently defined as a serious and/or violent felony, any purported appeal resulting from thetrial court’s denial of relief should be dismissed. (See People v. Leggett, supra, 219 Cal.App.4th at p. 853.) In such instances, a reviewing court’s act of dismissing the appeal would be similar to dismissals of appeals from coram nobis petitions where a defendanthas failed to state a prima facie case for relief. (See People v. Totari, supra, 28 Cal.4th at p. 885, fn. 4; People v. 16 Gallardo, supra, 77 Cal.App.4th at p. 983; People v. Williams (1965) 238 Cal.App.2d 585, 587 [“[a]lthough the appealability of the order may depend on the substanceofthe facts alleged in or adducedin support of the petition, the matter must be entertained in any event to determine whether dismissal or review on the merits is proper.”’].) Such a dismissal would also be consistent with the principle that statutes create the substantial right essential for appealability. (See People v. Totari, supra, 28 Cal.4th at pp. 883, 886-887; see also People v. Leggett, supra, 219 Cal.App.4that pp. 850-851; People v. Pritchett, supra, 20 Cal.App.4th at pp. 193-195.) Petitioner errs in asserting that the question of appealability “must be madein the abstract and based upon the assumption that the ruling was erroneous.” (POBM 12.) Where a defendantis not entitled tofile a petition for relief in the first instance, a reviewing court need not presume that he was, in fact, entitled to seek relief. (See In re Kathy P. (1979) 25 Cal.3d 91, 102 [error must be affirmatively shown and will not be presumed].) Althougha particular defendant may be able to conceive of a claim as to whyhis triggering offense is not one that is currently defined as a serious and/or violent felony despite the record of his conviction demonstrating that the offense is, in fact, one that is currently defined as a serious and/orviolent felony, a defendant’s ability to conjure up any legal claim does not meanthatthe trial court’s denial of that claim is appealable. Just as a defendant who wasnot sentenced pursuant to the Three Strikes Law maynotfile a petition for relief under Penal Code section 1170.126, so too are those defendants whosetriggering offenses under the Three Strikes Law are currently defined as serious and/or violent felonies precluded from filing an application for relief. (Pen. Code, § 1170.126, subd. (b).) Under neither circumstanceis thetrial court’s determination that the defendantis ineligible for relief an appealable order. 17 In any event, a defendant, such as petitioner, who believesthata trial court has erred in concludingthat his or her triggering offense under the Three Strikes Law constituted a serious and/or violent offense, rendering him ineligible to file a petition for recall of sentence under Penal Code section 1170.126, subdivision (b), still has a remedy in the form of extraordinary writ relief. Such a defendant mayfile a petition for writ on mandate or petition for writ of habeas corpus challenging thetrial court’s determination that the defendant’s triggering offense under the Three Strikes Law is currently defined as a serious and/or violent felony. (See People v. Picklesimer (2010) 48 Cal.4th 330, 338-339; People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at pp. 1295-1296.) C. Petitioner Had No Statutory Right to File a Petition to Recall Sentence under Penal Code Section 1170.126, Because His Triggering Offense Is Based on the Commission of a Crime Currently Defined Asa Serious Felony, and As Such, the Denial of the Petition Did Not Affect His Substantial Rights and Does Not Constitute an Appealable Order In the instant case, petitioner’s triggering offense under the Three Strikes Law was for making criminal threats in violation of Penal Code section 422. (1CT 2, 10.) A violation of Penal Code section 422 constitutes a serious felony within the meaning of Penal Code section 1192.7. (Pen. Code, § 1192.7, subd. (c)(38).) On appeal, petitioner did not purport to challenge thetrial court’s finding that his current conviction was defined as a serious felony, rendering him ineligible for resentencing under the Act, but instead, filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, raising no arguable issues. In petitioner’s recall petition filed in thetrial court, he asserted that his current offense could not be considered serious and/or violent within the meaning of Penal Code section 1170.126, because the offense of making criminal threats was not a serious felony offense on the date ofhis 18 conviction in 1996, but rather, was addedto the list of serious felonies qualifying as strikes in 2000 with the passage of Proposition 21. (1CT 3-4; see People v. Ringo (2005) 134 Cal.App.4th 870, 884 [“Proposition 21 expandedthelist of serious felonies to include section 422 as of March 9, 2000”]; see also Manduley v. Superior Court (2002) 27 Cal.4th 537, 574 [Proposition 21 modified the list of “serious felonies” under Penal Code section 1192.7].) The fact that petitioner committed his triggering offense of making criminal threats prior to the enactment of Proposition 21 is of no consequence to whetherhis triggering offense constituted a serious felony for the purposes of determining whether heis authorized to file a petition for recall of sentence under Penal Code section 1170.126. Section 1170.126, subdivision (b), provides that “any person serving a term oflife imprisonment” imposed pursuant to Penal Code sections 667, subdivision (e)(2), or 1170.12, subdivision (c)(2), “whetherbytrial or plea, of a felony or felonies that are not defined as serious and/or violent felonies” by Penal Code sections 667.5, subdivision (c) or 1192.7, subdivision (c), “may file a petition for recall of sentence ....” (Italics supplied.) Thestatute plainly refers to the enumeratedlists of serious and violent felonies in the present tense, and contemplates that those individuals whosetriggering offenses are currently defined as serious and/or violent maynot file a petition for recall of sentence.’ (Pen. Code, § 1170.126, subd. (b).) > Penal Code section 1170.126, subdivision (e)(1), also refers to the enumeratedlists of serious and violent felonies in the present tense, providing that a defendantis eligible for resentencingif: The inmate is serving an indeterminate term oflife 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 (continued...) 19 In interpreting a voter initiative, a reviewing court applies the “same principles that govern statutory construction.” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901; see also People v. Park (2013) 56 Cal.4th 782, 796.) Thus, a reviewing court looks “first to the language ofthe statute, giving the words their ordinary meaning.” (People v. Birkett (1999) 21 Cal.4th 226, 231.) If there is no ambiguity in the statutory language,a reviewing court presumesthat “the lawmakers meant what they said, and the plain meaning of the language governs.” (Dayv. City ofFontana (2001) 25 Cal.4th 268, 272; see also Kwitset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321.) The statutory language must also be construed in the context of the statute as a whole andthe overall statutory schemein light of the intent of the electorate. (See Robert L. v. Superior Court, supra, 30 Cal.4th at p. 901.) When the language ofa statute enacted by initiative is ambiguous, a reviewing court looks “to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” (People v. Birkett, supra, 21 Cal.4th at p. 243.) A reviewing court mustinterpret the initiative’s language so as to effectuate the electorate’s intent. (See Robert L. v. Superior Court, supra, 30 Cal.4th at p. 901; see also Hodges v. Superior Court (1999) 21 Cal.4th 109, 114 [“we may not properly interpret the measure in a waythat the electorate did not contemplate: the voters should get what they enacted, not more and not less.”].) The plain, unambiguous language of Penal Code section 1170.126, subdivision (b), demonstrates that the electorate intended that only those (...continued) defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. (Italics supplied.) 20 individuals serving indeterminate terms under the Three Strikes Law whose triggering offenseis not defined as serious and/or violent underthe current definitions of those terms mayfile a petition for recall of sentence. Had the drafters of the initiative intended the statute to permit those defendants whosetriggering offenses were not defined as serious and/or violent felonies at the timeoftheir commissiontofile recall petitions, they would have drafted subdivision (b) of the statute to permit only those inmates whosetriggering offenses “were not defined as serious and/or violent felonies at the time the inmate committed the crimes”to file a petition. That they chose not to do so demonstrates their intent to preclude those defendants serving Three Strikes sentences whosetriggering offenses are currently defined as serious and/orviolent from filing a petition for recall of sentence. (See People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at p. 13, fn. 26; see also People v. Yearwood, supra, 213 Cal.App.4that p. 171, quoting Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36, p. 52. [noting that the Act’s proponents arguedthat “Criminal justice experts and law enforcementofficials carefully crafted Prop. 36 so that truly dangerous criminals will receive no benefits whatsoever from the reform.’”’].) Real party in interest’s interpretation of Section 1170.126, subdivision (b), fully comports with the intent of the electorate to provide an avenue of potential relief to certain defendants whosetriggering offenses are consideredto be less significant felonies, while keeping those defendants whosetriggering offenses are considered to be dangerous incarcerated for their full indeterminate terms. (See People v. Yearwood, supra, 213 Cal.App.4th at pp. 171, 175; People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at p. 1293, fn. 12.) The intent of the electorate in enacting the Act was to “ensure dangerous criminals remain in prison,” while ensuring that non-violent offenders, such as those “‘convicted of shoplifting 21 a pair of socks,stealing bread or baby formula’” are not sentencedto life in prison. (People v. Yearwood, supra, 213 Cal.App.4th at p. 171, quoting Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) Proponents of the Actinsisted that the Act requires that “‘dangerous criminals servetheir full sentences,’” and that it “‘prevents dangerous criminals from being released early.’” (People v. Yearwood, supra, 213 Cal.App.4th at pp. 171, 175, quoting Voter Information Guide, Gen.Elec., supra, rebuttal to argument in favor of Prop. 36,p. 53.) | Construing Penal Code section 1170.126, subdivision(b), to refer to those triggering offensesthat are currently defined as serious and/orviolent supports the Act’s public safety purpose by reducingthe likelihoodthat defendants whoare currently dangerouswill be released from prison dueto the Act. The electorate would have had no basis to conclude that a defendant who committed his triggering offense prior to March 9, 2000, should be considered any less dangerous than a defendant who committed his triggering offense after that date.° (See People v. Walker (2002) 29 Cal.4th 577, 581 [in construinga statute, a reviewing court must select the interpretation that comports with the intent of the electorate and avoid an interpretation that would “lead to absurd consequences”|.) ® Real party in interest notes that the purpose of Proposition 21 was “to increase public safety.” (People v. James (2001) 91 Cal.App.4th 1147, 1151.) In addition to defining criminal threats as a serious felony, the initiative also added other offenses to the list of enumerated serious felonies, including: intimidation of a victim or witness (Pen. Code, § 136.1), assault with a deadly weaponor firearm (Pen. Code, § 245, subd. (a)(1)), assault with acid or a flammable substance (Pen. Code, § 244), shooting from a vehicle (Pen. Code, § 26100, subds. (c)-(d)), and discharge of a firearm at an inhabited dwelling, vehicle, or aircraft (Pen. Code, § 246). (See People v. Neely (2004) 124 Cal.App.4th 1258, 1267-1268.) 22 Moreover, the Act, consideredin its totally, demonstrates that the. electorate intended to go beyond the enumerated offenses in Penal Code sections 667.5, subdivision (c), and 1192.7, subdivision (c), to include other triggering offenses that would ultimately disqualify a defendant from resentencing. (See Pen. Code, § 1170.126, subd. (e)(2); see also Pen. Code §§ 667, subd. (e)(2)(C)(G)-(iti), 1170.12, subd. (c)(2)(C)G)-Giii).) The structure ofthe statutes comprising the Act, together with the relevant indicia of the electorate’s intent, demonstrates that the electorate intended that any defendant considered to be currently dangerous would receive no benefit from the Act’s enactment. Considered in this light, it makes no sense that the electorate would have intended to permit those individuals whosetriggering offenses were defined as serious and/or violent felonies on the date of the Act, but not at the time of conviction, to qualify for resentencing under Penal Code section 1170.126.’ (See People v. Walker, supra, 29 Cal.4th at p. 581.) ’ Nothing in Penal Code section 1170.125 alters this conclusion. Section 1170.125, which was amendedby the Act, now provides: Notwithstanding Section 2 of Proposition 184, as adopted at the November8, 1994, General Election, for all offenses committed on or after November 7, 2012;all references to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they existed on November7, 2012. The Act also amended Penal Code section 667, subdivision (h), to provide that “[a]ll references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on November7, 2012.” The amendments to Penal Code sections 667 and 1170.125 were merely intendedto ensure that the Act is not altered by the Legislature, or by the initiative process, via future changes expandingorrestricting the enumerated felonies considered to be serious and/orviolent in Penal Code sections 667.5, subdivision (c), and 1192.7, subdivision (c). (See People v. Acosta (2002) 29 Cal.4th 105, 121.) 23 Becausepetitioner lacked standingto file a petition for recall of sentencein thefirst instance since his current conviction wasfor an offense defined as a serious felony conviction under Penal Code section 1192.7, subdivision (c), the trial court’s order denying the petition did not affect petitioner’s substantial rights and does not constitute an appealable order. (People v. Leggett, supra, 219 Cal.App.4th at pp. 852-54; see People v. Totari, supra, 28 Cal.4th at pp. 881-883, 886-887; Thomas v. Superior Court, supra, | Cal.3d 788, 790; People v. Pritchett, supra, 20 Cal.App.4th at p. 194; People v. Chlad, supra, 6 Cal.App.4th at p. 1726; People v. Gainer, supra, 133 Cal.App.3d at pp. 640-642; People v. Druschel, supra, 132 Cal.App.3d at p. 669.) 24 CONCLUSION Accordingly, for the reasonsstated, real party in interest respectfully requests this Court to affirm the judgmentofthe Court of Appeal. Dated: November8, 2013 LA2013609456 $1399438.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R.GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General VICTORIA B. WILSON Supervising Deputy Attorney General JAIME L. FUSTER Deputy Attorney General (LPia NOAHP.HILL Deputy Attorney General Attorneysfor Real Party in Interest 25 CERTIFICATE OF COMPLIANCE I certify that the attached ANSWER BRIEF ON THE MERITSuses a 13-point Times New Roman font and contains 6,557 words. Dated: November8, 2013 KAMALA D. HARRIS Attorney General of California AL? itt NOAHP.HILL Deputy Attorney General Attorneysfor Real Party in Interest DECLARATION OF SERVICE BY U.S. MAIL Case Name: Bennie Jay Teal v. Superior Court of Los Angeles County Case No.: S211708 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. _ I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same dayin the ordinary course of business. On November8, 2013, I served the attached ANSWER BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: Richard B. Lennon Staff Attorney California Appellate Project (LA) 520 South Grand Avenue Fourth Floor Los Angeles, CA 90071 Counsel for Petitioner Bennie Jay Teal Frederick R. Bennett Court Counsel Los Angeles County Superior Court 111 N.Hill St., #546 Los Angeles, CA 90012 The Honorable Jackie Lacey District Attorney . L.A. County District Attorney's Office C.S. Foltz Criminal Justice Center 210 West Temple Street, 18th Floor Los Angeles, CA 90012 Second Appellate District Division Seven Court of Appealof the State of California 300 South Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 {hand delivered] Hon. William C. Ryan, Judge Los Angeles County Superior Court C. S. Foltz Criminal Justice Center 210 West Temple Street, Dept. 130 Los Angeles, CA 90012-3210 Beth Widmark Deputy District Attorney L.A. County District Attorney's Office Habeas/Appellate Unit 320 West TempleStreet, Ste. 540 Los Angeles, CA 90012 The one copyfor the California Appellate Project was placed in the box for the daily messenger run system established betweenthis Office and California Appellate Project (CAP) in Los Angeles for same day, personal delivery. I declare under penalty of perjury underthe lawsofthe State of California the foregoingis true and correct and that this declaration was executed on November8, 2013, at Los Angeles, California. K. Amioka —Gcerbs Declarant \Gignapuire — LA2013609456 51401351.doc
