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People v. Franco

California Court of Appeals, Fifth District

December 22, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT LUNA FRANCO, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION [*]]

Page 832

APPEAL from a judgment of the Superior Court of Kern County No. SC072462A. Michael B. Lewis, Judge.

COUNSEL

Michael Satris, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

INTRODUCTION

The Three Strikes Reform Act of 2012 (hereafter the Act) created a postconviction release proceeding for third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies. If such

Page 833

an inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he or she will be resentenced as a second strike offender unless the court determines such resentencing would pose an unreasonable risk of danger to public safety.[1] (§ 1170.126, subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168 [151 Cal.Rptr.3d 901].)

After the Act went into effect, Robert Luna Franco (defendant), an inmate serving a term of 25 years to life following conviction of a felony that was 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 and resentencing under the Act. Following a hearing addressing the facts pertaining to risk of danger, the petition was denied.

In the published portion of this opinion, we explain that while a trial court has the authority to obtain a supplemental probation officer’s report at the stage of the proceedings at which it must determine whether resentencing a petitioner would pose an unreasonable risk of danger to public safety, it is not required to do so. In the unpublished portion, we reject defendant’s claims that denial of his petition constituted an abuse of discretion because the trial court failed to make the requisite finding, relied on facts unsupported and contradicted by the record, and misapprehended the scope of its discretion. We also explain the standard of proof applicable to a trial ...


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