Filed 1/27/15 P. v. Flenoury CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B255596

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA094289)
         v.

JERRY EMMIT FLENOURY,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Dismissed.
         Jerry Emmit Flenoury, in pro. per.; and Cheryl Lutz, under appointment by the Court
of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                             ——————————
       Appellant Jerry Emmit Flenoury was convicted of attempted first degree
residential burglary, in violation of Penal Code sections 664 and 459,1 and subsequently
found true two prior “strike” allegations. Flenoury was sentenced to state prison for 35
years to life, including 25 years to life as a third-strike offender and five years each for
two serious prior conviction enhancements under section 667, subdivision (a)(1).2
       On December 6, 2012, Flenoury filed a petition to recall his sentence pursuant to
section 1170.126. On February 7, 2013, the trial court denied that petition on the ground
that Flenoury’s conviction for attempted first degree burglary, a serious felony, rendered
him ineligible for resentencing.
       On March 11, 2013, Flenoury filed another petition for recall of sentence pursuant
to section 1170.126. On March 26, 2013, the trial court found again that Flenoury’s
conviction rendered him ineligible for resentencing, and denied the petition with
prejudice.
       Flenoury filed a third petition for recall on May 6, 2013, and a public defender
was appointed to represent him. Flenoury stipulated that Judge Ryan (the same judge
who had ruled on his two prior petitions) could determine that petition, which is the
subject of this appeal. On March 6, 2014, Judge Ryan found that Flenoury’s conviction
for attempted first degree burglary, a serious felony pursuant to section 1192.7,
subdivision (c)(39), rendered him ineligible for resentencing under section 170.126,
subdivision (e)(2). The court dismissed the petition, noting that if Flenoury wished to




       1   All further statutory references are to the Penal Code unless otherwise indicated.
       2A complete recitation of the factual and legal background of this matter is
contained in our opinion in Flenoury’s prior appeal, People v. Flenoury (May 26, 2010,
B213103) [nonpub. opn.], as to which we granted Flenoury’s request for judicial notice.


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challenge the denial of his earlier petition, his remedy was to seek relief in this court.3
This timely appeal followed.
       We appointed counsel to represent Flenoury on appeal. After examination of the
record, Flenoury’s counsel filed an opening brief raising no issues, and asking this court
to independently review the record. (People v. Wende (1979) 25 Cal.3d 436, 441
(Wende).) Flenoury was notified that he could file his own brief raising any legal
grounds or argument he wished us to consider. He filed a supplemental brief in propria
persona in which, in addition to seeking relief which, if available, he could obtain only in
federal court, he complains that the trial court erred in refusing to reconsider his
eligibility for resentencing under section 1170.126. He also argues that there was
insufficient evidence to support his convictions as to the priors and, as a result, the trial
court erred in refusing to strike a strike.4
       Flenoury has failed to raise any arguable issues on appeal. Therefore, we decline
to retain the case, and will dismiss the appeal as abandoned. (Serrano, supra, 211
Cal.App.4th at pp. 503–504.)




       3 Very recently, in Teal v. Superior Court (2014) 60 Cal.4th 595, our Supreme
Court held that the denial of a motion for recall and resentencing is an appealable
postconviction order. (Id. at pp. 599–601.)
       4 Wende review is available only in a first appeal of right from a criminal
conviction. (People v. Serrano (2012) 211 Cal.App.4th 496, 500–501; see
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 543–544; People v. Kelly (2006) 40
Cal.4th 106, 119.) Such review is required only for “appointed appellate counsel's
representation of an indigent criminal defendant in his first appeal as of right.” (In re
Sade C. (1996) 13 Cal.4th 952, 978; People v. Taylor (2008) 160 Cal.App.4th 304, 312.)
Because Flenoury’s appeal from a postconviction order dismissing his petition for recall
of sentence is not a first appeal of right, he is not entitled to Wende review given that
appointed counsel found no arguable issues on appeal. (Serrano, at p. 501.)


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                                    DISPOSITION
      The appeal is dismissed as abandoned.
      NOT TO BE PUBLISHED.


                                                JOHNSON, J.


We concur:


             CHANEY, Acting P. J.


             BENDIX, J.*




      *   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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