People v. Bess CA4/3

DISCUSSION

1. The order dismissing defendant’s resentencing petition is appealable. When the parties prepared their appellate briefs, the question of whether an order denying a petition for resentencing under section 1170.126 is appealable had not been decided. The Supreme Court has now held the ruling is appealable as a postjudgment order. (Teal v. Superior Court (2014) 60 Cal.4th 595, 601; § 1237, subd. (b).) While here the trial court technically “dismissed” defendant’s petition, since its decision was based on the conclusion he was not eligible for relief, the effect is the same as a denial of the petition. We conclude the holding in Teal applies here as well.

2. Defendant is not entitled to resentencing on his burglary conviction. The trial court dismissed defendant’s resentencing petition on the two grounds asserted by the prosecution; defendant received an indeterminate life sentence for robbery, a serious and a violent felony, and he was armed in committing that crime. On appeal, defendant concedes he is not eligible to be resentenced on the robbery charge. Rather, he claims “the trial court erroneously concluded that the robbery conviction . . . necessarily precluded it…