[REVIEW GRANTED BY CAL. SUPREME COURT]
Santa Clara County Superior Court No. 179647 Honorable Linda R. Clark, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
William Robinson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris Attorney General, Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler, Assistant Attorney General Eric D. Share and Huy T. Luong Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Max Henry Denize is currently serving two consecutive “Three Strikes” life sentences for 1996 convictions for grand theft (Pen. Code, §§ 484, 487, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)) with a true finding on an allegation of personal use of a deadly weapon (§ 1192.7, subd. (c)(23)). In 2013, an attorney employed by the Santa Clara County Public Defender’s Office filed a petition under section 1170.126 on defendant’s behalf seeking appointment of counsel and a finding that defendant was eligible for “possible resentencing.” The attorney declared that she was “informed and believe[d] that Mr. Denize’s third qualifying conviction was for a non violent non serious offense” and that there were no disqualifying enhancements or factors. The superior court denied the petition without appointing counsel. Its order stated: “According to the Information, forms of verdict and abstract of judgment, Defendant’s third conviction was assault with a deadly weapon with the further allegation that defendant personally used a dangerous and deadly weapon in the commission of that offense (PC §245(a)(1)/667-1192.7). Defendant is ineligible for resentencing because his current conviction is a serious felony as defined in Penal Code §1192.7[, subdivision (c)](23).”
Defendant contends that the superior court erred in denying his petition without appointing counsel. He also claims that the denial of his
petition was erroneous because his Three Strikes sentence for grand theft was eligible for resentencing under section 1170.126. We conclude that he was not entitled to appointment of counsel because his petition failed to state a prima facie case. We also conclude that an inmate serving two Three Strikes life sentences, one for a serious offense and one for a nonserious offense, is not eligible for resentencing under section 1170.126.
In December 1994, defendant went to a Sunnyvale Home Depot, placed several “very expensive” items in his cart, removed the “sensormatic” theft-detection tags from the items, and pushed his cart past a closed register without making any attempt to stop and pay for the items in the cart. His conduct was observed by Home Depot employees. As he headed for an exit, a Home Depot cashier approached him and asked to see his receipt. Defendant became “mad and upset” and “started talking real loud.” A Home Depot assistant manager intervened and told defendant that he could not leave with the merchandise without a receipt. Defendant “took off, ” abandoned the cart along with the merchandise near the exit, and ran into the parking lot.
The assistant manager pursued defendant and told defendant that he was “under arrest for shoplifting.” Defendant opened his car door and got into the driver’s seat. Defendant tried to punch the assistant manager in the face, but the assistant manager deflected the blows. With the assistant manager standing between the open car door and the car and reaching into the car to try to pull defendant out of the car, defendant looked the assistant manager “straight in the eyes, ” “put the car in reverse and peeled out backwards.” The car moved backward with “[g]reat acceleration, ” and the car door “slammed” into the assistant manager’s back. The car door was bent backward by the force of its contact. Defendant “[s]lammed his car into ...