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Braziel v. Superior Court (People)

California Court of Appeals, Second District, Seventh Division

April 9, 2014

HOMER RAY BRAZIEL, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent THE PEOPLE, Real Party in Interest.

[REVIEW GRANTED BY CAL. SUPREME COURT]

[As modified Apr. 23, 2014.]

ORIGINAL PROCEEDINGS in mandate. No. BA183095 William C. Ryan, Judge.

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COUNSEL

Jonathan B. Steiner and Suzan E. Hier for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Real Party in Interest.

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OPINION

SEGAL, J.[*]

INTRODUCTION

Homer Ray Braziel filed a notice of appeal from an order by the trial court denying his petition for recall of his sentence under the three strikes law pursuant to Penal Code section 1170.126.[1] We deemed his notice of appeal a petition for writ of mandate and issued an order to show cause why we should not order the trial court to vacate its order denying the petition. We now deny his petition.

FACTUAL AND PROCEDURAL BACKGROUND

On May 6, 1999 the People charged Braziel by information with two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); counts 1 and 4); assault with a deadly weapon, a knife (ibid.; count 2), a serious felony within the meaning of section 1192.7, subdivision (c)(23); and making a terrorist threat (now criminal threat, see People v. Moore (2004) 118 Cal.App.4th 74, 78-79 [12 Cal.Rptr.3d 649]) (§ 422; count 3). The information alleged that Braziel had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and five prior convictions for which he had served prison terms (§ 667.5, subd. (b)). On August 4, 1999 the jury found Braziel guilty on counts 1 through 3 and found true all prior conviction allegations.

The trial court imposed three strikes sentences of 25 years to life on all three counts. The court ordered that Braziel serve the sentences on counts 1 and 3 concurrently and stayed sentence on count 2 pursuant to section 654. The court also imposed four years under section 667.5, subdivision (b), for a total term of 29 years to life.

On May 7, 2013 Braziel filed a petition for recall of his sentence pursuant to section 1170.126. The trial court denied his petition on the ground that one of his current offenses was a serious felony under section 1192.7, subdivision (c)(38), making him ineligible for resentencing.

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DISCUSSION

A. Introdu ...


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