California Court of Appeals, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Appeal from an order of the Superior Court of Orange County, No. 95SF0237, Gary S. Paer, Judge.
[Copyrighted Material Omitted]
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant James Galvan appeals from the dismissal of his petition for resentencing under Penal Code section 1170.126 (all undesignated statutory references are to this code). He argues the trial court
erred in ruling he was ineligible for resentencing under section 1170.126 because the crime for which he was given the indeterminate life sentence – assault with a firearm – was not considered a serious or violent felony at the time of the final judgment on his conviction, and thus it cannot be treated as such for purposes of evaluating his present eligibility for resentencing. He also claims that the separate finding that he committed his crime while armed with a firearm cannot be relied upon as a basis for denying him resentencing because his sentence on that finding was stayed pursuant to section 654, and consequently his current sentence “was not imposed” for an offense appearing in section 667, subdivision (e)(2)(C)(iii) or section 1170.12, subdivision (c)(2)(C)(iii).
The Attorney General’s initial response is to claim the dismissal is not an appealable order because it does not affect defendant’s “‘substantial rights.’” Although this may have been an arguable assertion when the Attorney General’s brief was filed, our Supreme Court has since rejected it and concluded such dismissals are appealable. (Teal v. Superior Court (2014) 60 Cal.4th 595 [179 Cal.Rptr.3d 365, 336 P.3d 686].)
The issue of whether the classification of an inmate’s prior conviction must be determined as of the time his judgment of conviction became final, rather than under the sentencing law in effect when section 1170.126 was enacted, is currently pending before the Supreme Court. (Braziel v. Superior Court, review granted July 30, 2014, S218503.) However, as the court has not yet issued an opinion resolving the issue, we address it here and reject defendant’s contention. Section 1170.126, subdivision (e) sets forth the specific eligibility requirements for resentencing under the statute. Among other things, it states that an eligible inmate is one who is serving an indeterminate sentence for a felony or felonies “that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1), italics added.) This present tense reference to the statutes defining which felonies qualify as “serious” or “violent” makes clear that the pertinent classification for purposes of establishing eligibility for resentencing was based on current law in existence when section 1170.126 went into effect. And even assuming the alternative language relied upon by defendant, taken from subdivision (a) of section 1170.126, could be read as supporting a different interpretation of eligibility, we would disregard it under the well-settled rule that in the case of inconsistency between statutory provisions, the more specific provision controls over the more general one. Under a proper reading of section 1170.126, defendant is ineligible for resentencing because his conviction for assault with a firearm qualifies as a serious felony for purposes of that statute. Hence, the trial court properly dismissed his petition and we affirm its order.
Defendant was convicted of assault with a firearm (§ 245, subd. (a)(2)), and related allegations that he used a firearm in the commission of the offense and inflicted great bodily injury were also found true. The court found that defendant had committed three prior felonies and sentenced him to an indeterminate term of 25 years to life, plus an additional five-year term pursuant to section 667, subdivision (a)(1), which applies to “any person convicted of a serious felony who previously has been convicted of a ...