Filed 6/19/13
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                   DIVISION SEVEN


BENNIE JAY TEAL,                                   B247196

        Petitioner,                                (Los Angeles County
                                                   Super. Ct. No. NA026415)
        v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

        Respondent;


THE PEOPLE,

        Real Party in Interest.




        ORIGINAL PROCEEDINGS in Mandate. William C. Ryan, Judge. Petition
Denied.
        Richard B. Lennon, under appointment by the Court of Appeal, for Petitioner.
        No appearance by Respondent.
        No appearance by Real Party in Interest.
       Bennie Jay Teal is serving an indeterminate life term under the Three Strikes law
following his conviction in 1996 for making a criminal threat. On January 22, 2013 the
trial court denied Teal‟s petition for recall of sentence pursuant to Penal Code
                 1
section 1170.126 on the ground Teal is ineligible for resentencing. (§ 1170.126,
subd. (f).) Teal filed a notice of appeal on February 21, 2013; we appointed counsel to
represent Teal on appeal; counsel filed an opening brief on June 13, 2013 pursuant to
People v. Wende (1979) 25 Cal.3d 436, which raised no issues and asked this court to
independently review the record.
       The order denying Teal‟s petition is not appealable but may be reviewed by a
petition for writ of mandate. Accordingly, we treat the purported appeal as a petition for
writ of mandate and summarily deny the petition. (See generally Olson v. Cory (1983)
35 Cal.3d 390, 401.)
       The right of appeal is statutory, and a judgment or order is not appealable unless
expressly made so by statute. (People v. Totari (2002) 28 Cal.4th 876, 881; People v.
Mazurette (2001) 24 Cal.4th 789, 792.) As relevant here, an inmate like Teal may appeal
from “any order made after judgment, affecting the substantial rights of the party.”
(§ 1237, subd. (b).)
       Proposition 36 (the Three Strikes Reform Act of 2012) amended sections 667 and
1170.12 to limit Three Strikes sentences to current convictions for serious or violent
felonies and a limited number of other felonies (for example, a felony offense that results
in mandatory registration as a sex offender [§§ 667, subd. (e)(2)(C)(ii), 1170.12,
subd. (c)(2)(C)(ii)]) unless the offender has a prior strike conviction that falls within one
of several enumerated categories (for example, offenses punishable by life in prison
[§§ 667, subd. (e)(2)(C)(iv)(VIII), 1170.12, subd. (c)(2)(C)(iv)(VIII)]). Section 1170.126
establishes a procedure for qualified inmates serving indeterminate life sentences under
the Three Strikes law to seek resentencing under the terms of the amended law.
However, section 1170.126, subdivision (a), expressly limits the right to have the trial
1
       Statutory references are to the Penal Code.
                                              2
court consider whether an inmate should be resentenced to those individuals who satisfy
the statutory eligibility requirements set forth in section 1170.126, subdivision (e): “The
resentencing provisions under this section and related statutes are intended to apply
exclusively to persons presently serving an indeterminate term of imprisonment pursuant
to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of
Section 1170.12, whose sentence under this act would not have been an indeterminate life
sentence.” (§ 1170.126, subd. (a).)
       Because inmates do not have a right to have the trial court consider whether they
should be resentenced unless they meet the statutory eligibility requirements, the trial
court‟s threshold eligibility determination, based on express objective criteria, is not a
postjudgment order affecting the substantial rights of the party and is not appealable
under section 1237, subdivision (b). (See, e.g., People v. Loper (2013) 216 Cal.App.4th
969, 97_ [2013 Cal. App. Lexis 418] [order denying recall of sentence under the
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compassionate release provisions in § 1170, subd. (e), is not appealable]; People v.
Druschel (1982) 132 Cal.App.3d 667, 668 [because defendant has no right to move for
recall of sentence pursuant to § 1170, subd. (d), denial of such a motion does not affect
the defendant‟s substantial rights and is not appealable]; cf. People v. Gallardo (2000)
77 Cal.App.4th 971, 980-981 [order denying a petition for writ of coram nobis is not
appealable absent showing petition stated a prima facie case for relief]; see also People v.
Totari, supra, 28 Cal.4th at p. 885, fn. 4; but see People v. Hurtado (2013)
216 Cal.App.4th 941.)
       Although Teal‟s notice of appeal is improper, under the circumstances we may
treat it as a petition for writ of mandate or habeas corpus. (See People v. Segura (2008)
2
        The court in Loper, quoting People v. Gallardo (2000) 77 Cal.App.4th 971, 980,
explained, “If interpreted broadly, the phrase „affecting the substantial rights of the party‟
in section 1237, subdivision (b) „would apply to any postjudgment attack upon the
conviction or sentence‟ because „[t]he court‟s denial of relief in any such situation could
affect the defendant‟s substantial rights. However, decisional authority has limited the
scope of the phrase, defining appealability more narrowly.‟” (People v. Loper, supra,
216 Cal.App.4th at p. ___.)
                                              3
44 Cal.4th 921, 928 [treating purported appeal from nonappeable order as petition for
writ of habeas corpus in the interest of judicial economy]; Drum v. Superior Court (2006)
139 Cal.App.4th 845, 853 [uncertainty in the law respecting appealability of the order in
question is proper ground for treating a purported appeal as a petition for a writ of
mandate]; H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-
1367 [same; “appellate court has discretion to treat a purported appeal from a
                                                            3
nonappealable order as a petition for writ of mandate”].)
       We have read and considered Teal‟s petition for recall of sentence and other
materials from the trial court, including its memorandum of decision denying the petition,
submitted as part of the purported record on appeal. One of Teal‟s prior strike
convictions was for violating section 262, subdivision (a), rape of a spouse, a “sexually
                 4
violent offense,” which makes him ineligible for resentencing under section 1170.126,
subdivision (e)(3). Accordingly, the petition is denied.




                                                  PERLUSS, P. J.

       We concur:



              ZELON, J.                           SEGAL, J.*

3
        By seeking writ review of the summary denial of a petition for recall of sentence
pursuant to section 1170.126, subdivision (f), inmates should be protected from incorrect
eligibility determinations and are likely to receive decisions in these cases in a more
timely and cost-effective manner.
4
        When Teal was convicted of violating section 262, subdivision (a), in 1984, the
statute did not include the language now found in subdivision (a)(2) & (3), which
arguably falls outside the definition of a “sexually violent offense.” (See Stats. 1982,
ch. 1113, § 1, pp. 4031-4032.)
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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