1

Filed 10/24/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

FREDDIE WORTHAM,

Defendant and Appellant.

 A138769

 (Alameda County

 Super. Ct. No. 137640)

Defendant Freddie Wortham appealed from an order denying his petition to recall 

his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (the 

Reform Act). (Pen. Code, § 1170.126.)1 His counsel has asked this court for an 

independent review of the record to determine whether there are any arguable issues. 

(People v. Wende (1979) 25 Cal.3d 436.) We first address whether the trial court’s order 

is appealable—an issue that is currently under review by our Supreme Court—and hold 

that it is. We then conclude, after having independently reviewed the record, that there 

are no arguable appellate issues. Accordingly, we affirm.

A jury convicted Wortham in 2000 of first degree burglary (§ 459), the trial court 

sentenced him under the Three Strikes law to an indeterminate sentence based on his 

admitted five prior felony convictions, and this court affirmed the judgment in a 

nonpublished opinion. (People v. Wortham (July 25, 2001, A091475).) Over the next 

several years, Wortham filed various petitions for habeas corpus challenging his sentence 

under the Three Strikes law, which this court denied. (In re Wortham, petns. den. 

 

1 All statutory references are to the Penal Code.
2

July 31, 2008, A122056, A122057; In re Wortham, petn. den. May 22, 2008, A121478;

In re Wortham, petn. den. June 14, 2007, A117940.)

On November 6, 2012, voters approved the Reform Act, and it went into effect the 

next day. (Three Strikes Reform Act of 2012, Section 10 [Prop. 36, as approved by 

voters Ballot Pamp., Gen. Elec. (Nov. 6, 2012)].) 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).)

On March 5, 2013, Wortham, proceeding without an attorney, filed a petition for 

recall of his sentence under the Reform Act. The trial court denied the petition under the 

first step of section 1170.126 after it concluded that Wortham was ineligible for 

resentencing because his commitment offense, first degree burglary, constitutes a serious 

felony.

Courts of Appeal are split on the issue of whether a trial court’s initial eligibility 

determination under the Reform Act results in an appealable order. After Wortham 

appealed the order in this case, his appointed counsel argued that the order was 

appealable but candidly acknowledged that our Supreme Court has granted review to 

resolve the issue. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted 
3

July 31, 2013, S211708 [concluding that a denial of a petition under the Reform Act is 

nonappealable because the Act confers no substantial rights on eligibility issue, which is 

“based on express objective criteria”]; People v. Hurtado (2013) 216 Cal.App.4th 941, 

review granted July 31, 2013, S212017 [concluding that a denial of a petition under the 

Reform Act is appealable because the Act confers a “substantial right”].) We requested 

briefing on the issue, and each party submitted a letter brief. Although the Attorney 

General in Hurtado agreed with the petitioner that a trial court’s order denying a petition 

under the Reform Act is appealable, she now asks this court to conclude that such an 

order is nonappealable.

The right of appeal is statutory, and a judgment or order is not appealable unless 

authorized by statute. (People v. Mazurette (2001) 24 Cal.4th 789, 792.) The Reform 

Act does not specifically address whether a trial court’s denial of a petition for recall of 

sentence under section 1170.126 is appealable. The general statute governing appeals in 

criminal matters provides that a defendant may appeal “[f]rom any order made after 

judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b).) Thus, the 

question is whether a trial court’s order under the Reform Act regarding eligibility affects 

a substantial right of either party. We conclude that it does.

The Third District recently weighed in on the issue in a published decision. In 

People v. Leggett (2013) 219 Cal.App.4th 846 (Leggett), it concluded that a trial court’s 

order regarding an inmate’s eligibility to seek relief under the Reform Act does not affect 

“substantial rights,” and thus is nonappealable. (Id. at pp. 852-853.) The court reasoned 

that because persons who are ineligible for resentencing should not file a petition in the 

first place, the Reform Act does not confer on them a substantial right. (Id. at p. 852.) In 

doing so, the court focused on the relative simplicity of determining eligibility under the 

Reform Act: “The determination of whether petitioner was within the class of persons 

who may seek relief under the statute, thereby authorizing an appeal from an order 

denying the petition, is straightforward and beyond dispute. It is simply necessary to 

determine whether a commitment offense for petitioner’s three strikes sentence includes a 
4

conviction for a serious or violent felony as defined by statute. Assuming that is not [sic]

the case, the appeal should be dismissed.”2 (Id. at p. 853, italics added.)

We disagree with Leggett’s conclusion that an order denying a petition based on 

an inmate’s elibilitity for resentencing under the Reform Act is nonappealable. While it 

may be true that the vast majority of eligibility determinations for resentencing under the 

Reform Act will be straightforward, we agree with Wortham that some may not be. And 

even on straightforward determinations, trial courts can make mistakes. Such a mistake 

would unquestionably affect a petitioner’s substantial rights because the mistaken 

determination would foreclose the possibility of a reduced sentence.

We find support for our conclusion in Leggett itself. Its acknowledgement that the 

correctness of the trial court’s eligibility determination should be evaluated before an 

appeal is dismissed (Leggett, supra, 219 Cal.App.4th at p. 853) suggests that an incorrect 

determination would be appealable. We perceive little practical difference in reviewing a 

trial court’s order for correctness before dismissing it as nonappealable and in reviewing 

the order for correctness before affirming it. We also find support for our conclusion in 

Leggett’s dicta. As in this case, the trial court in Leggett never reached the second step of 

the inmate’s petition for resentencing, where a trial court exercises its discretion whether 

to resentence an eligible inmate. (Id. at p. 848.) The Leggett court noted that such a 

determination would implicate an inmate’s “substantial rights,” thereby authorizing an 

appeal. (Id. at p. 853.) We believe it necessarily follows that the trial court’s initial 

eligibility determination likewise implicates a petitioner’s substantial rights, because it 

affects whether the trial court will exercise its resentencing discretion in the first place.

Although we conclude that Wortham may appeal the order denying his petition, 

we also conclude that his appeal lacks merit. The trial court correctly ruled that Wortham 

was ineligible for resentencing under the Reform Act because his commitment offense, 

 

2

Presumably, the court meant to say that assuming it was the case that a petitioner’s three 

strikes sentence includes a conviction for a serious or violent felony, the appeal would be 

dismissed, as a petitioner with such a third strike is ineligible for resentencing.
5

first degree burglary, was a serious felony. (§§ 1170.126, subds. (b), (e)(1), 1192.7, 

subd. (c)(18).) On the merits, there are no arguable issues.3

The trial court’s order is affirmed.

_________________________

Humes, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.

 

3 Wortham filed a supplemental brief with this court, but it does not affect our 

conclusion. As we understand Wortham’s argument, he contends that his original 

sentence violated his due process rights under Apprendi v. New Jersey (2000) 530 U.S. 

466, because there was insufficient proof that his prior convictions qualified as strikes. In 

doing so, he fails to address the only issue in this appeal, which is whether the trial court 

erred in determining that he was ineligible for resentencing under the Reform Act.
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Trial Court: Alameda County Superior Court

Trial Judge: Honorable Larry Goodman

Counsel for Appellant: Michael Satris, under appointment by the First District 

Appellate Project

Counsel for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette, 

Chief Assistant Attorney General, Gerald A. Engler, 

Senior Assistant Attorney General