California Court of Appeals, Second District, First Division
Order Filed 6/17/14
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA036692 William C. Ryan, Judge. Reversed with directions.
Larry Pizarro, 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, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, Noah P. Hill and Jonathan Kline, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
It is ordered that the opinion filed herein on May 30, 2014, be modified as follows.
At the end of the first paragraph on page 10, after “his second degree burglary conviction, ” add as footnote 2 the following footnote:
2 Based upon our analysis of the language of section 1170.126 set forth herein, as well as our analysis of the apparent voters’ intent in enacting Proposition 36, as set forth in the next section, respectfully, we do not agree with Braziel v. Superior Court (2014) 225 Cal.App.4th 933, 946–948. We further note Braziel relied in part on the provisions of section 1170.126, subdivision (e)(2), which, by reference to sections 667, subdivision (e)(2)(C)(i)–(iii) and 1170.12, subdivision (c)(2)(C)(i)–(iii), sets forth particular types of offenses, enhancements, and aspects of offenses, such as being armed with a deadly weapon during the commission of the offense. (Braziel, at p. 947.) Although Mr. Braziel apparently fell within the scope of section 1170.126, subdivision (e)(2) because he committed assault with a deadly weapon, a knife, many inmates petitioning for resentencing, including Mr. Machado, do not. Accordingly, the facts of Braziel are also distinguishable.
There is no change in the judgment.
Respondent’s petition for rehearing is denied.
MILLER J. [*]
Defendant Oscar Machado appeals from an order denying his petition for Proposition 36 resentencing pursuant to Penal Code section 1170.126 with respect to one of the two 1998 commitment offenses for which he received consecutive third-strike terms of 25 years to life.
Although defendant recognizes he is ineligible for resentencing with respect to his first degree burglary conviction because it was a “serious” offense, he contends the trial court erred by concluding he was ineligible with respect to his second degree burglary conviction. We agree. Although section 1170.126 does not address eligibility for resentencing where a petitioner’s commitment offenses include both a felony categorized as serious or violent and a felony that is not so categorized, a conclusion that nonserious/nonviolent offenses are eligible for resentencing (absent other disqualifying factors) is consistent with the language of the statute and would advance the voters’ intent in enacting Proposition 36.
According to defendant’s petition for resentencing, a jury convicted him in 1998 of one count of first degree burglary and one count of second degree burglary. Defendant waived a jury trial on two strike allegations, both robberies, and the court found these allegations true. The court sentenced defendant to consecutive third-strike terms of 25 years to life.
Defendant filed a petition for resentencing, listing his current and prior offenses, and requesting resentencing on both of his commitment offenses. The trial court denied the petition, stating defendant’s first degree burglary conviction rendered him ineligible for resentencing.
The Attorney General contends the trial court’s order was not appealable. The appellate courts have reached conflicting conclusions on this issue, which is pending before the California Supreme Court in Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708, and In re Martinez (2014) 223 Cal.App.4th 610, review granted May 14, 2014, S216922. This division concluded in People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017, an order denying a petition for resentencing was appealable. We decline to revisit this issue, and instead proceed to the merits because if the trial court’s order were not appealable, it would be reviewable by a petition for a writ of habeas corpus. No purpose would be served by requiring defendant to refile this matter as a writ petition. Because the issue remains open, we treat the instant appeal as a petition for a writ of habeas corpus.
B. Eligibility for resentencing under the Three Strikes Reform Act of 2012
On appeal, defendant concedes he is not eligible for resentencing on his first degree burglary conviction, which is categorized as a “serious” felony. (§ 1192.7, subd. (c)(18).) The sole issue is whether he is nonetheless eligible for resentencing with respect to his other commitment offense, the ...