Opinion
B298043
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. OSCAR GERALD MACHADO, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA036692) APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Dismissed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant Oscar Gerald Machado purports to appeal from an order denying his petition for recall of sentence pursuant to Senate Bill No. 1393. The trial court treated the petition as one for a writ of habeas corpus and denied the petition. An order denying a petition for writ of habeas corpus is not appealable. (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064.) A defendant "whose petition has been denied by the superior court can obtain review of his claims only by the filing of a new petition in the Court of Appeal." (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) While we have discretion to treat the appeal as a petition for writ of habeas corpus (see People v. Young (1991) 228 Cal.App.3d 171, 179), we decline to do so and dismiss the appeal.
BACKGROUND
On October 28, 1998, a jury convicted Machado of two counts of second degree burglary (Pen. Code, § 459). The trial court found true the prior serious felony conviction allegations (id., §§ 667, subds. (a)(1), (b)-(i), 1170.12). The court sentenced Machado to 50 years to life for the two convictions plus five years for the prior serious felony conviction.
On February 4, 2019, Machado filed a petition for recall of sentence pursuant to Senate Bill No. 1393, seeking to take advantage of a new law giving trial courts discretion to strike a five-year serious felony conviction enhancement. On March 8, 2019, the trial court issued an order treating Machado's petition as one for writ of habeas corpus and simultaneously denying the petition with prejudice. It found the new law did not apply retroactively to cases in which the judgment was final, and the judgment in this case was final.
Machado filed a notice of appeal from the trial court's order on April 22, 2019.
DISCUSSION
We appointed counsel to represent Machado on this appeal. After review of the record, Machado's counsel filed an opening brief requesting this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. On January 10, 2020, we sent a letter to Machado, advising him that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. We received no response.
Senate Bill No. 1393, which became effective January 1, 2019, provided trial courts with discretion to strike prior serious felony convictions for purposes of sentence enhancement under Penal Code section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, § 1.) It applies retroactively to all cases in which the judgment is not yet final. (People v. Garcia (2018) 28 Cal.App.5th 961, 973; see People v. Brown (2012) 54 Cal.4th 314, 319-324.) As the trial court noted, the 1998 judgment of conviction is final. Machado therefore is not entitled to the benefit of Senate Bill No. 1393. (People v. Alexander (2020) 45 Cal.App.5th 341, 346-347.)
Having examined the record, we are satisfied that no viable arguable legal issues exist and that Machado's counsel has fully complied with his responsibilities. Machado's purported appeal is ineffective. He cannot state a prima facie claim for relief (In re Figueroa (2018) 4 Cal.5th 576, 586-587), and thus there is no basis upon which we can treat the appeal as a petition for writ of habeas corpus. The appeal must therefore be dismissed.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
JOHNSON, J. We concur:
ROTHSCHILD, P. J.
BENDIX, J.