Monterey County Superior Court Superior Court Nos.: SM110568, SM980600 Hon. Timothy P. Roberts
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Joseph Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Gregg E. Zywicke and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.
In 1999, defendant David Chubbuck was convicted of solicitation to commit assault with a deadly weapon (Pen. Code, § 653f, subd. (a)). The trial court found true two “strike” allegations (§ 1170.12) and sentenced defendant to a term of 25 years to life. This court affirmed defendant’s conviction and sentence in 2001. (People v. Chubbuck (Jan. 30, 2001, H020514) [nonpub. opn.].)
In 2013, defendant filed a petition for resentencing in the trial court, pursuant to section 1170.126, subdivision (b). The trial court denied defendant’s petition, finding that he was ineligible for resentencing under section 1170.126, subdivision (e)(2) because “[d]uring the commission of” the solicitation offense, defendant “intended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
On appeal, defendant contends the trial court erred by denying his petition for resentencing because the prosecution never pleaded and proved that he intended to cause great bodily injury during the commission of the solicitation offense. We disagree that a pleading and proof requirement applies to the disqualification factors referenced in section 1170.126, subdivision (e)(2), and we will therefore affirm the trial court’s order denying defendant’s petition.
A. The Three Strikes Reform Act of 2012
On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012 (hereafter, “Reform Act”), which amended sections 667 and 1170.12 and added section 1170.126. The Reform Act changes the requirements for sentencing a third strike offender to a prison term of 25 years to life. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 [151 Cal.Rptr.3d 901] (Yearwood).)
Under the Three Strikes law as it existed prior to the Reform Act (former §§ 667, subds. (b)-(i); 1170.12), a defendant who had previously been convicted of two or more serious or violent felonies was subject to an indeterminate sentence of 25 years to life upon his or her conviction of any new felony. The Reform Act prospectively changed the Three Strikes law by reserving indeterminate life sentences for cases where the new offense is also a serious or violent felony, unless the prosecution pleads and proves an enumerated disqualifying factor. In all other cases, a recidivist defendant will
be sentenced as a second strike offender, rather than a third strike offender. (Yearwood, supra, 213 Cal.App.4th at pp. 167-168; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286 [155 Cal.Rptr.3d 856].)
The Reform Act also created a “ ‘post-conviction release proceeding’ ” whereby a Three Strikes prisoner who is serving an “indeterminate life sentence” for a crime that was not a serious or violent felony-and who is not otherwise disqualified-may have his or her sentence recalled and be resentenced as a second strike offender, unless the court “determines that resentencing... would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subds. (a), (f), (m); see Yearwood, supra, 213 Cal.App.4th at p. 168.)
Under section 1170.126, subdivision (e)(2), a prisoner is not eligible for resentencing under the Reform Act if his or her current sentence was imposed for “any of the offenses appearing in” section 667, subdivision (e)(2)(C)(i)-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii). Section 667, subdivision (e)(2)(C)(iii) and section 1170.12, subdivision (c)(2)(C)(iii) both provide: “During the commission of the current offense, the defendant used a firearm, ...