Opinion
2d Crim. No. B292080
12-19-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID MARSHALL, Defendant and Appellant.
Jonathan B. Steiner, Executive Direct, Richard B. Lennon, Staff Attorney under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill, Nancy Lii Ladner, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5. (Super. Ct. No. 1026041)
(Santa Barbara County)
David Marshall appeals a postjudgment order denying his Proposition 36 petition (Pen. Code, § 1170.126, subd. (b)) to recall his third-strike life sentences for attempted mayhem, assault with intent to commit mayhem, and assault by means likely to produce great bodily injury. Appellant contends, and the Attorney General agrees, that the petition makes a preliminary showing that appellant is serving a concurrent, life term for a non-serious felony, i.e., assault by means likely to produce great bodily injury. (See § 1170.126, subd. (e)(1); Couzens & Bigelow, Cal. Three Strikes Sentencing (The Rutter Group 2018) § 14:3, pp. 14-4 to 14-5.) We reverse and remand with directions.
All statutory references are to the Penal Code.
Procedural History
In 2001, a jury convicted appellant of attempted mayhem (§§ 664/205), assault with intent to commit mayhem (§ 220), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and simple battery (§ 242). Appellant was sentenced as a third strike offender to state prison for 46 years to life based on the following sentence calculation: 25 years to life for assault with intent to commit mayhem, plus four consecutive five-year terms for his prior serious felony convictions (§ 667, subd. (a)), plus one year on a prior prison term enhancement (§ 667.5, subd. (b)). The trial court imposed a concurrent term of 25 years to life on the count for assault by means likely to produce great bodily injury, and imposed and stayed (§ 654) a life term on the count for attempted mayhem. We affirmed the judgment in an unpublished opinion but modified the judgment to reflect that appellant was awarded 389 days presentence custody credit. (B154776.)
Petition for Resentencing
On June 25, 2018, appellant filed a petition for resentencing pursuant to section 1170.126. The trial court denied the petition on the ground that appellant's "life sentence was based on a serious or violent felony." The court was half right. The conviction for assault with intent to commit mayhem is a serious felony, which renders appellant ineligible for resentencing on that count.
"There are two stages to recall and resentencing under Proposition 36. First, the [trial] court makes a threshold determination whether the life inmate is eligible for resentencing - that is, his or her current offense is neither serious or violent nor one of the enumerated disqualifying offenses, and the first or second strike is not one of the enumerated disqualifying priors. Pen. C § 667(e). Second, the [trial] court determines whether the petitioner, although eligible, would 'pose an unreasonable risk of danger to public safety.' Pen. C § 1170.126(f)." (Cal. Criminal Law Procedure and Practice (Cont.Ed.Bar 2018) § 37.33A, p. 1094.) --------
Appellant, however, received a concurrent life sentence for assault by means likely to produce great bodily injury, which the Attorney General concedes is not a serious or violent felony. (See § 1170.126, subd. (e)(1).) "[A]n inmate is eligible for resentencing with respect to a [count] that is neither serious nor violent despite the presence of another current offense that is serous or violent." (People v. Johnson (2015) 61 Cal.4th 674, 695.) Although appellant is serving a life sentence for assault with intent to commit mayhem (a serious felony; § 1192.7, subd. (c)(29)), appellant may petition for resentencing on the life term for assault with intent to produce great bodily injury (a non-serious felony). (§ 1170.126, subd. (e)(1).)
We reverse but note that resentencing is not automatic. Appellant may be ineligible for resentencing if the trial court finds that appellant personally inflicted great bodily injury on a person (§ 1192.7, subd. (c)(8); see People v. Johnson (2016) 244 Cal.App.4th 384, 389-390), if appellant suffered a prior "super strike" conviction (see §§ 667, subd. (e)(2)(C)(iv); 1170.12, subd. (c)(2)(C)(iv); People v. Johnson, supra, 61 Cal.4th at pp. 681-682 [describing "super strikes"]; People v. Estrada (2017) 3 Cal.5th 661, 672 [prosecution and trial court may look at the record of conviction]), if the trial court finds that appellant poses an unreasonable risk of danger to public safety (§ 1170.126, subd. (f); People v. Frierson (2017) 4 Cal.5th 225, 240), or the trial court finds lack of good cause for not timely filing the petition (§ 1170.126, subd. (b)). Although Proposition 36's effective date was November 7, 2012 and the deadline to file a resentencing petition was November 7, 2014, late filing is allowed for good cause. (§ 1170.126, subd. (b); see Cal. Criminal Law Procedure and Practice, supra, § 41.17A, p. 1281.)
Disposition
The postjudgment order denying appellant's petition for resentencing is reversed and remanded with directions to determine appellant's eligibility for resentencing, whether appellant poses an unreasonable risk of danger to public safety (§ 1170.126, subd. (f)), and whether there was good cause for the late filing of the petition (§ 1170.126, subd. (b)).
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
PERREN, J.
John McGregor, Judge
Superior Court County of Santa Barbara
Jonathan B. Steiner, Executive Direct, Richard B. Lennon, Staff Attorney under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill, Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.