California Court of Appeals, Second District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from an order of the Superior Court of Los Angeles County, No. YA038015 William C. Ryan, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Noah P. Hill and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Timothy Wayne Johnson appeals from an order denying his petition for recall of his sentence pursuant to Penal Code section 1170.126. The superior court found Johnson was ineligible for resentencing because his current offense, attempting to dissuade a witness, is a serious felony. Johnson urges that because dissuading a witness was not defined as a serious felony when he committed his crimes in 1998, he is eligible for resentencing regardless of the fact the offense was later added to section 1192.7’s serious felony list. In the published portion of this opinion, we conclude that, for purposes of section 1170.126’s resentencing procedure, the determination of whether a defendant’s current crime qualifies as a serious or violent felony must be based on whether the crime was so defined as of November 7, 2012, Proposition 36’s effective date. Accordingly, Johnson’s contention that he is eligible for resentencing under section 1170.126 lacks merit. In the unpublished portion of the opinion, we hold that a trial court’s order finding a defendant ineligible for resentencing under section 1170.126 is appealable.
In 1998, a jury convicted Johnson of two counts of attempting to dissuade a witness (§ 136.1, subd. (a)(2)). At the time Johnson committed the crimes, attempting to dissuade a witness in violation of section 136.1 was not defined as a serious or violent felony for purposes of the Three Strikes law.
Because the jury also found Johnson had suffered three prior convictions for “strike” offenses––robbery (§ 211), residential burglary (§ 459), and assault with personal use of a firearm or infliction of great bodily injury (§ 245, subd. (a)(2))––the trial court sentenced him to a term of 28 years to life pursuant to the Three Strikes law. This court affirmed the judgment in a nonpublished opinion (People v. Johnson (Sept. 15, 2000, B128901)).
Effective November 7, 2012, the electorate enacted Proposition 36, the Three Strikes Reform Act of 2012 (the Act). (People v. Yearwood (2013) 213 Cal.App.4th 161, 167, 169-170 [151 Cal.Rptr.3d 901]; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285 [155 Cal.Rptr.3d 856] (Kaulick).) Among other things, Proposition 36 added section 1170.126, which provides that certain eligible inmates serving indeterminate life sentences under the Three Strikes law may petition the trial courts for reductions in their sentences. (Yearwood, at p. 170.)
On May 10, 2013, Johnson filed a petition for recall of his sentence in the Los Angeles County Superior Court pursuant to section 1170.126. Johnson acknowledged that his current offense, witness intimidation, was at the time of the petition listed as a serious felony, but argued this fact did not make him ineligible for resentencing because the offense was not listed as a serious or violent felony when he committed the crimes in 1998. On June 12, 2013, the superior court denied Johnson’s petition with prejudice, on the ground his current convictions for witness intimidation ...