[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Tulare County No. VCF036841-95. Joseph A. Kalashian, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Tim Ward, District Attorney, Anthony Fultz, Assistant District Attorney, Jill Icenhower, Douglas Rodgers, and Samantha Arnerich, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Michael B. Sheltzer, Public Defender, Lisa Bertolino, Assistant Public Defender, and Angela Marie Krueger, Deputy Public Defender, for Real Party in Interest.
“On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act). The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 [151 Cal.Rptr.3d 901].)
Shortly after the Three Strikes Reform Act of 2012 (the Act or Proposition 36) went into effect, real party in interest Alfredo Cervantes, an inmate serving a 50-years-to-life term following conviction of felonies that were not
violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for recall of sentence, seeking resentencing under the Act. The trial court determined Cervantes qualified (was eligible) for resentencing and set the matter for further hearing on the issue of whether resentencing Cervantes would pose an unreasonable risk of danger to public safety. The People now seek review of the trial court’s eligibility determination.
In the published portion of this opinion, we hold that an inmate serving an indeterminate life term under the three strikes law may be found to have been “armed with a firearm” in the commission of his or her current offense(s), so as to be disqualified from resentencing under the Act, even if he or she did not carry the firearm on his or her person. In the unpublished portion, we hold the People are entitled to writ review of the trial ...