Filed 5/24/17 P. v. Melger CA3
NOT TO BE PUBLISHED



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS JOSEPH MELGER,

Defendant and Appellant.
C083647

(Super. Ct. No. 62-144616)






In 2016, defendant Thomas Joseph Melger pleaded no contest to identity theft (Pen. Code, § 530.5, subd. (a)) and admitted a strike (§§ 1170.12, 667, subd. (b)) and a prior prison term (§ 667.5, subd. (b)). (People v. Melger (Jan. 24, 2017, C082751) [nonpub. opn.] at p. 1.) He was sentenced to a stipulated state prison term of three years eight months. (Id. at p. 2.) Defendant filed numerous appeals from his conviction in that case.
On October 31, 2016, while his appeals were pending, defendant filed a combined section 1170.18 petition for “de novo review” and a Code of Civil Procedure section 107.1 motion to disqualify the trial court for bias. The trial court denied the motions, finding the disqualification motion was untimely and the matter was currently pending on appeal in this court.
Defendant appeals. Appointed counsel filed an opening brief asking us to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) for any arguable issues.
An order resolving a motion to disqualify is not appealable. The exclusive means for appellate review of a determination on the disqualification of a judge or other bench officer is by petition for writ of mandate in accordance with Code of Civil Procedure section 170.3, subdivision (d). (See Curle v. Superior Court (2001) 24 Cal.4th 1057, 1059.) Since defendant’s appeal from his conviction was pending at the time, the trial court lacked jurisdiction to consider his section 1170.18 petition. (People v. Scarbrough (2015) 240 Cal.App.4th 916, 929.) We therefore decline to apply Wende review and will dismiss the appeal.
 
DISPOSITION
Defendant’s requests to file a fourth and fifth supplemental brief are denied. The appeal is dismissed.



NICHOLSON , Acting P. J.



We concur:



HULL , J.




HOCH , J.