Filed 1/27/15 P. v. Flenoury CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

JERRY EMMIT FLENOURY,

Defendant and Appellant. B255596

(Los Angeles County Super. Ct. No. TA094289)

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 appointmen t by the Court of Appeal, for Defe ndant and Appellant. No appearance for Plai ntiff and Respondent.

——————————2 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. Fl enoury 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 enhancemen ts under section 667, subdivision (a)(1). 2 On December 6, 2012, Flenoury filed a pe tition to recall his se ntence pursuant to section 1170.126. On February 7, 2013, the trial court deni ed 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 anot her 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 inelig ible for resentencing, and denied the petition with prejudice. Flenoury filed a third petition for reca ll 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 tw o prior petitions) could determin e 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 seri ous 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 pe tition, noting that if Flenoury wished to

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 A complete recitation of the factual a nd 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 Flenou ry’s request for judicial notice.3 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 repr esent Flenoury on appeal. After examination of the record, Flenoury’s counsel filed an opening br ief 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 coul d file his own brie f 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 1 170.126. 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 dismis s 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 fo r recall and resentencing is an appealable postconviction order. ( Id . at pp. 599–601.)

4 Wende review is available only in a firs t 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.4t h 529, 543–544; People v. Kelly (2006) 40 Cal.4th 106, 119.) Such review is requi red 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 postconvic tion 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 fo und no arguable issues on appeal. ( Serrano

, at p. 501.)4 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 Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.