Oehmigen

In January 2013, defendant Leonard Eldyn Oehmigen filed a petition for the recall of his April 1998 indeterminate life sentence pursuant to Penal Code section 1170.126. 2 The statute, enacted as part of a November 2012 initiative measure, provides retrospective relief under narrow criteria from indeterminate life sentences imposed for recidivism. Defendant alleged that he was eligible for resentencing because his 1998 commitment conviction — assault with force likely to inflict great bodily injury — was not a “serious” or violent felony (§ 1170.126, subd. (e)(1)), and neither his commitment conviction nor his other prior felony convictions came within other disqualifying criteria (id., subd. (e)(2) & (3)). As a result, he alleged he was entitled to a determinate sentence of double the normal term applicable to his conviction (i.e., the same sentence a defendant would receive under the prospective amendments to the recidivist sentencing statutes enacted as part *4 of the same initiative). (Id., subd. (f); see § 667, subd. (e)(1).) 3 (Defendant also filed a second recall petition in connection with a later case (People v. Oehmigen (Super. Ct. Sacramento County, 2006, No.…

Concurring and Dissenting. — “Naturally I concur in the majority opinion I have prepared for the court” (People v. Jones (1998) 17 Cal.4th 279, 319 [ 70 Cal.Rptr.2d 793 , 949 P.2d 890 ] (cone. opn. of Mosk, J.)); “[obviously, I concur fully in the majority opinion I have authored” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 378 [ 58 Cal.Rptr.2d 458 , 926 P.2d 438 ] (cone. opn. of Chin, J.)).

I write separately to explain my disagreement with the chosen disposition that my colleagues favor. Upon determining on the merits that a defendant is not eligible for relief under Penal Code section 1170.126, the proper disposition should be to dismiss the matter because denial of the petition accordingly did not affect any substantial right of the defendant. (See People v. Elder (2014) 227 Cal.App.4th 1308, 1318, 1320-1321 [ 174 Cal.Rptr.3d 795 ] (cone. & dis. opn. of Butz, J.).)

Appellant’s petition for review by the Supreme Court was denied February 18, 2015, S223657.

Filed 12/5/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento) ----

THE PEOPLE, C073771

Plaintiff and Respondent, (Super. Ct. No. 97F00832)

v.

LEONARD ELDYN1 OEHMIGEN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Sacramento County denying the petition for recall of defendant’s sentence, Gary S. Ransom, Judge. Affirmed.

Diane L. Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.

1 The notice of appeal, defendant’s briefing on appeal, and several documents misspell defendant’s middle name as “Eldin.” We use the spelling of “Eldyn” as reflected in the record.

1 In January 2013, defendant Leonard Eldyn Oehmigen filed a petition for the recall of his April 1998 indeterminate life sentence pursuant to Penal Code section 1170.126.2 The statute, enacted as part…