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Filed 12/18/13 P. v. McHenry CA1/5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION FIVE 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

CHRISTOPHER R. MCHENRY, 

 Defendant and Appellant. 

 A139173 

 (San Mateo County 

 Super. Ct. No. SC042757A) 

 In January 1999, Christopher R. McHenry was sentenced under the “Three 

Strikes” law to two consecutive 25-year-to-life terms plus a consecutive 20-year term for 

four 5-year serious felony enhancements. McHenry filed a petition for a writ of habeas 

corpus seeking resentencing under Penal Code section 1170.126.1 The trial court found 

McHenry ineligible for resentencing and denied the petition. He appeals. 

 Assigned counsel has submitted a Wende2

 brief, certifying that counsel has been 

unable to identify any issues for appellate review. Counsel also has submitted a 

declaration confirming that McHenry has been advised of his right to personally file a 

supplemental brief raising any points which he wishes to call to the court’s attention. No 

supplemental brief has been submitted. As required, we have independently reviewed the 

record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) 

 We find no arguable issues and therefore affirm. 

 1

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

2 People v. Wende (1979) 25 Cal.3d 436. 
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BACKGROUND

 McHenry was convicted in 1998 of multiple felonies, including carjacking (§ 215, 

subd. (a)), second degree robbery (§ 212.5, subd. (c)), vehicle theft (Veh. Code, § 10851, 

subd. (a)), felony evading a peace officer (Veh. Code, § 2800.2), and three counts of 

felony assault with a deadly weapon (automobile) on a peace officer (§ 245, subd. (c)). 

Among the multiple special allegations found true were three prior strike convictions 

(§ 1170.12) and four prior serious felony convictions (§ 667, subd. (a)). In January 1999, 

McHenry was sentenced, inter alia, to two consecutive 25-years-to-life terms for 

carjacking and one count of felony assault with a deadly weapon (automobile) on a peace 

officer plus a consecutive 20-year term for the four 5-year serious felony enhancements. 

Judgment was affirmed by this court. (People v. McHenry (May 1, 2000, A085833) 

[nonpub. opn.].) 

 On December 12, 2012, McHenry filed a pro se petition for a writ of habeas 

corpus seeking resentencing under Proposition 363

 and section 1170.126. The district 

attorney opposed the petition, arguing that McHenry was statutorily ineligible for 

resentencing by virtue of his convictions for two violent felonies (carjacking, § 215, 

subd. (a); robbery, § 212.5, subd. (c)), and two serious felonies (two counts of assault 

with a deadly weapon on a peace officer, § 245, subd. (c)), and that the court should in 

any event deny resentencing because McHenry would pose an unreasonable risk of 

danger to public safety (§ 1170.126, subd. (f)). 

 Counsel was appointed to represent McHenry. A hearing on the petition was held 

on May 21, 2013, before the Honorable Barbara Mallach, the original sentencing judge. 

The district attorney reiterated his position that McHenry was excluded from 

consideration for resentencing by the terms of the statute. McHenry’s counsel conceded 

that “I have not found a creative way to convince the Court that someone with these 

particular offenses can get out from under the serious or violent felony list, which is in 

 3

 On November 6, 2012, voters approved Proposition 36, also known as the “Three 

Strikes Reform Act of 2012” (Reform Act). 
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the statute itself.” While acknowledging that he did not “have any authority,” counsel 

said that, “[M]y only argument is to see if the Court could find any way under [section] 

1385 . . . to make a person, who I think is statutorily ineligible, eligible.” The court 

denied the petition. 

 McHenry filed a timely notice of appeal. 

DISCUSSION

 “The Reform Act amended the Three Strikes law so that an indeterminate term of 

25 years to life in prison is applied only where the ‘third strike’ conviction is a serious or 

violent felony, or where the prosecution pleads and proves other specific factors. 

(§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) The Reform Act also added 

section 1170.126, which allows inmates sentenced under the previous version of the 

Three Strikes law to petition for a recall of their sentence if they would not have been 

sentenced to an indeterminate life sentence under the Reform Act. (§ 1170.126, 

subds. (a)–(b).) An inmate is eligible for resentencing if various criteria are met, 

including that the inmate’s commitment offense was not a serious or violent felony. 

(§ 1170.126, subd. (e).) [¶] The trial court’s consideration of a petition under the Reform 

Act is a two-step process. First, the trial determines whether the petitioner is eligible for 

resentencing. (§ 1170.126, subd. (f).) If the petitioner is eligible, the trial court proceeds 

to the second step, and resentences the petitioner under the Reform Act unless it 

determines that to do so would pose ‘an unreasonable risk of danger to public safety.’ 

(§ 1170.126, subd. (f).)” (People v. Wortham (2013) 220 Cal.App.4th 1018, 1021 

(Wortham).) 

 There is a split of appellate opinion on whether a trial court’s initial eligibility 

determination under the Reform Act results in an appealable order. In Wortham, supra,

220 Cal.App.4th 1018, Division Four of this court concluded that such an order is 

appealable because it affects substantial rights. (Cf. People v. Leggett (2013) 

219 Cal.App.4th 846, 852–853 [concluding that a trial court’s order regarding an 

inmate’s eligibility under the Reform Act is nonappealable].) Our Supreme Court has 

granted review to resolve the issue. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, 
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review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, 

review granted July 31, 2013, S212017.) Until the Supreme Court resolves this conflict, 

we adopt the reasoning of our colleagues in Wortham, and address the appeal on the 

merits. 

 We find no arguable issue. Section 1170.126, subdivision (b), provides that “Any 

person serving an indeterminate term of life imprisonment imposed pursuant to 

paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of 

Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are 

not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or 

subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two 

years after the effective date of the act that added this section or at a later date upon a 

showing of good cause, before the trial court that entered the judgment of conviction in 

his or her case, to request resentencing in accordance with the provisions of 

subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes 

have been amended by the [Reform Act].” (Italics added.) An inmate is “eligible for 

resentencing if: . . . The inmate is serving an indeterminate term of life imprisonment 

imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of 

Section 1170.12 for a conviction of a felony or felonies that are not defined as serious 

and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of 

Section 1192.7.” (§ 1170.126, subd. (e)(1), italics added.) McHenry’s commitment 

offenses include two “violent felonies” under section 667.5, subdivision (c) and 

two “serious felonies” as defined under section 1192.7, subdivision (c), and he was not 

eligible for resentencing. 
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DISPOSITION

 The trial court’s order denying the petition is affirmed. 

 _________________________ 

 Bruiniers, J. 

We concur: 

_________________________ 

Simons, Acting P. J. 

_________________________ 

Needham, J.