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People v. White

California Court of Appeal, Fourth District, First Division

January 28, 2014

The PEOPLE, Plaintiff and Respondent,
v.
Mark Anthony WHITE, Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed. (Super. Ct. No. ECR11231).

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[167 Cal.Rptr.3d 330] Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael Romano, San Francisco, and Emily Galvin for the Stanford Three Strikes Project as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson, Michael Pulos and Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

NARES, J.

Page 517

INTRODUCTION

Overview of the Three Strikes Reform Act of 2012

On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act), which amended Penal Code [1] sections 667 and 1170.12 and added section 1170.126. ( People v. Yearwood (2013) 213 Cal.App.4th 161, 167, 151 Cal.Rptr.3d 901 ( Yearwood ).) Under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) as it existed prior to Proposition 36, a defendant convicted of two prior serious or violent felonies was subject as a third strike offender to a sentence of 25 years to life upon conviction of any third felony. ( People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279, 1285, 155 Cal.Rptr.3d 856 ( Kaulick ).) Now, under the prospective provisions of the Reform Act (set forth in §§ 667, 1170.12), a defendant convicted of two prior serious or violent felonies is subject to the 25-year-to-life sentence only if the current third felony is a serious or violent felony. ( Kaulick, at pp. 1285-1286, 1292-1293, 155 Cal.Rptr.3d 856.) Thus, if the third felony is not a serious or violent felony and none of four enumerated disqualifying exceptions or exclusions applies, the defendant will be sentenced as a second strike offender. ( Id. at pp. 1286, 1293, 155 Cal.Rptr.3d 856.)

Of particular importance here, the retrospective part of the Reform Act provides a means whereby, under three specified eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the Three Strikes law for a third felony conviction that was not a serious or violent felony may be eligible for resentencing as if he or she only had one prior serious or violent felony conviction. ( Kaulick, supra, 215 Cal.App.4th at pp. 1285, 1293, 155 Cal.Rptr.3d 856; [167 Cal.Rptr.3d 331] Yearwood, supra, 213 Cal.App.4th at p. 170, 151 Cal.Rptr.3d 901, citing § 1170.126, subd. (e) (hereafter section 1170.126(e)).) However, even if the resentencing eligibility criteria are satisfied and none of the disqualifying exceptions or exclusions applies, the prisoner is not entitled to resentencing relief under the Reform Act as a second strike offender if the trial court, in its discretion, determines that such resentencing " would pose [167 Cal.Rptr.3d 332] an unreasonable risk of danger to public safety." ( Kaulick, at p. 1286, 155 Cal.Rptr.3d 856; § 1170.126, subd. (f) (hereafter section 1170.126(f)).)

Page 518

Nature of this Case and Contentions on Appeal

In this case, Mark Anthony White is an inmate serving a 25-year-to-life sentence as a third strike offender under the pre-Proposition 36 version of the Three Strikes law following his current conviction of possession of a firearm by a felon (§ 12021, subdivision (a), hereafter section 12021(a)).[2] For purposes of the Three Strikes law as amended by the Reform Act, this felony offense is not a violent felony within the meaning of section 667.5, subdivision (c), or a serious felony within the meaning of section 1192.7, subdivision (c).

White appeals an order denying a petition he filed under the Reform Act, in which he asked the trial court to recall his life sentence and resentence him as a second strike offender. In denying White's petition, the court found he was ineligible for resentencing relief because he was armed with a firearm during the commission of his current offense— possession of a firearm by a felon— within the meaning of the " armed with a firearm" exclusion set forth in sections 667, subdivision (e)(2)(C)(iii) (hereafter section 667(e)(2)(C)(iii)) and 1170.12, subdivision (c)(2)(C)(iii) (hereafter section 1170.12(c)(2)(C)(iii)), both of which are referenced in section 1170.126, subdivision (e)(2) (hereafter section 1170.126(e)(2)).

White contends the court erred in denying his petition because (1) no sentence was ever imposed on him for being armed with a firearm; (2) the Reform Act " does not exclude the stand-alone offense of firearm possession because one is not ‘ armed’ with a firearm during the commission of possession of that firearm" ; [3] (3) rules of statutory construction " dictate" that possession of a firearm is not a disqualifying offense because the plain language and syntactic structure of the armed-with-a-firearm exclusion set forth in section 667(e)(2)(C)(iii) " does not include ‘ possession’ and it requires that the arming be anchored or tethered to an offense which does not include possession" ; (4) the court's " literal and expansive interpretation" of the armed-with-a-firearm exclusion is " contrary to the intent and purpose underlying [the Act]" ; and (5) " [a]nother significant reason to interpret the statute in favor of [White] is that the trial court still has discretion to deny

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relief if it determines that resentencing [him] would ‘ pose an unreasonable risk of danger to public safety’ ...


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