Filed 5/5/15 P. v. Hobbs CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041489
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC129407)

             v.

CHARLES EDWARD HOBBS,

         Defendant and Appellant.



         In 2001 appellant Charles Edward Hobbs pleaded guilty to assault with a deadly
weapon (Pen. Code, § 245 subd. (a)(1)), battery with serious bodily injury (Pen Code,
§§ 242-243, subd. (d)), attempting to dissuade a witness from reporting a crime (Pen
Code, § 136.1, subd. (b)(1)), and false imprisonment (Pen. Code, § 236-237). He also
admitted the he had suffered three prior convictions, including two strike priors. (Pen.
Code, §§ 667, subd (b)-(i), 1170.12). The trial court sentenced defendant to 25 years to
life pursuant to the “Three Strikes” law. In appeal numbers H026305 and H026884, this
court affirmed his conviction.1
         On August 13, 2014, appellant filed a “Petition for Recall of Sentence Pursuant to
California’s Penal Code Section 1170.126, Recall of an Illegal Sentence . . . .” (Petition)
The Petition for recall of sentence under the Three Strikes Law Reform Act (the Act) and

         1
         The facts underlying appellant’s original conviction are not relevant to this
appeal and are, therefore, omitted.
Penal Code section 1170.126 alleged that appellant was eligible for resentencing under
the Act, and also that his sentence was unlawful pursuant to People v. Vargas (2014) 59
Cal.4th 635 (Vargas). On August 15, 2014, the trial court denied the Petition, finding the
appellant ineligible for re-sentencing under the provisions of the Act because his current
offense, assault with a deadly weapon, was a serious felony. (Pen. Code, § 1170.126,
subd. (e)(1).) The trial court construed the portion of the petition pursuant to Vargas as a
petition for writ of habeas corpus and denied it. On September 5, 2014, appellant filed a
timely notice of appeal challenging both the denial of his resentencing petition pursuant
to Penal Code section 1170.126, and the court’s decision to treat his “sentence recall”
pursuant to Vargas as a petition for writ of habeas corpus.
       On appeal, we appointed counsel to represent appellant in this court. Appointed
counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496
(Serrano)), which states the case and the facts but raises no specific issues.
       Pursuant to Serrano, on December 29, 2014, we notified appellant of his right to
submit written argument in his own behalf within 30 days. On January 28, 2015, we
received a supplemental brief from appellant.2 In his brief, appellant contends that he
received ineffective assistance of appellate counsel in the appeal from his conviction, that
the prior strikes should have been stricken by the trial court and/or correctly challenged in
his direct appeal. To the extent these claims were not raised and resolved in his direct
appeal, they are not timely or properly raised in a petition to recall pursuant to Penal
Code section 1170.126.
       Appellant further contends that the trial court erred in not considering his prior
strike convictions along with his current offense in determining his eligibility for
resentencing under the act. This assertion is inconsistent with the express terms of Penal


       2
       Along with his supplemental brief, appellant submitted a Petition for Writ of
Mandate, H042239. That matter will be disposed of separately.
                                              2
Code section 1170.126 which excludes offenders whose current offense is a serious
felony as defined by Penal Code section 1170.126, subdivision (e)(1).
       Finally, appellant contends that if his petition was improperly presented, the trial
court should have returned it to him instead of deeming it a petition for writ of habeas
corpus. Appellant does not dispute that an order denying a petition for writ of habeas
corpus is not an appealable order. However, he urges us to treat the appeal from the
denial of the habeas as a writ of mandate. Because he has concurrently filed a Petition
for Writ of Mandate, we need not do that. The question of whether the trial court abused
its discretion by not giving him the opportunity to amend his petition, although
improperly raised in this appeal, can be resolved in the writ proceeding. As nothing in
appellant’s brief raises an arguable issue on appeal, and we must dismiss the appeal.
(Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
                                       DISPOSITION
       The appeal is dismissed.




                                             3
                                    _____________________________________
                                               RUSHING, P.J.




WE CONCUR:




_________________________________
      PREMO, J.




_________________________________
      ELIA, J.




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