California Court of Appeals, Fourth District, Third Division
Appeal from a order of the Superior Court of Orange County No. 99NF2770, Gary S. Paer, Judge.
[Copyrighted Material Omitted]
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Roland Alfred Berry appeals from the dismissal of his petition for recall of his indeterminate life sentence under Penal Code section 1170.126 (all further statutory references are to this code), which was enacted as part of the Three Strikes Reform Act of 2012
(Three Strikes Reform Act) (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, pp. 109-110; hereafter Voter Information Guide.) Defendant was sentenced to an indeterminate life term in 2000, following his guilty plea to counts alleging (1) possession of a fraudulent check (§ 476) and (2) possession of a forged driver’s license (§ 470, subd. (b)).
The court’s dismissal of defendant’s petition was based on a determination he was ineligible for resentencing relief because he was armed with a firearm during his commission of the offenses to which he pleaded guilty. Defendant contends this was error for several reasons, all stemming from the fact that the counts alleging he was in possession of a firearm had been dismissed in conjunction with his plea agreement. Among other things, defendant argues that the initial determination of an inmate’s eligibility for recall of his sentence under subdivision (e) of section 1170.126 must be based upon the convictions the indeterminate sentence is being served for (§1170.126, subd. (e)(1)), the offenses for which the “inmate’s current sentence was... imposed' (§ 1170.126, subd. (e)(2), italics added), and the inmate’s “prior convictions” (§ 1170.126, subd. (e)(3), italics added). None of those things can be established by reference to the evidence underlying dismissed counts.
The Attorney General’s initial response to this appeal is a claim the order dismissing defendant’s petition is not appealable because the dismissal does not affect his “‘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].)
On the merits, we agree with defendant. The resentencing provisions of section 1170.126 are “intended to apply exclusively to persons... whose sentence under this act would not have been an indeterminate life sentence.” (§ 1170.126, subd. (a), italics added.) Thus, the basic premise of section 1170.126 is that an inmate who is serving an indeterminate life sentence under prior versions of the “Three Strikes” law (§§ 667, 1170.12), but whose convictions and related factual findings would not have warranted such a sentence under the revised provisions of the Three Strikes Reform Act passed by the voters, is eligible to seek a recall of that earlier sentence. However, under the two-part analysis required by section 1170.126, an eligible inmate will not be granted resentencing relief if the court determines, in its discretion, that “resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) It is in making the latter determination that a trial court would properly expand its inquiry to factual
matters beyond the scope of defendant’s earlier convictions and the offenses for which the original sentence was imposed.
Because the trial court in this case relied on the evidence underlying the dismissed counts in assessing defendant’s eligibility for resentencingcounts on which defendant was neither convicted nor had a sentence imposedit erred in dismissing his petition. The case is remanded for the court to determine whether defendant would pose an unreasonable risk of danger to the public safety.
Defendant was originally sentenced to an indeterminate life term after he pleaded guilty to one count of possession of a fraudulent check (§ 476) and one count of possession of a forged driver’s license (§ 470, subd. (b)). His plea followed the dismissal of seven other counts, including some alleging his unlawful possession of a firearm.
In our earlier opinion affirming defendant’s sentence, we summarized the evidence underlying the counts alleged against defendant, and his plea: “While having a motel under surveillance, a police officer saw defendant walk to the rear of a Cadillac, open its trunk, ...