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Name: People v. Hurtado
Case #: B246330
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 05/28/2013
Subsequent History: Review granted 7/29/13: S212017

Trial court’s order denying Proposition 36 resentencing petition is an appealable order after judgment. Defendant petitioned for recall of his three strikes sentence pursuant to Proposition 36, the Strikes Reform Act of 2012. The trial court denied the petition because defendant’s commitment offense was a first degree burglary. He appealed. Held: Affirmed. Proposition 36 amended Penal Code sections 667 and 1170.12 so that an indeterminate life sentence may only be imposed where the commitment offense is a serious or violent felony (Pen. Code, §§ 667.5, subd. (c); 1192.7, subd. (c)). It created section 1170.126, which outlines the procedure for filing a petition to recall an indeterminate strikes sentence, and provides certain exceptions to eligibility for relief. The denial of a petition to recall a three strikes sentence pursuant to section 1170.126, is appealable as an order after judgment which affects the substantial rights of the party (Pen. Code, § 1237, subd. (b)). Because such an appeal relates only to the petition to recall the sentence, it does not constitute a prohibited second appeal from the judgment. However, defendant is not entitled to relief because his commitment offense was a serious felony.