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People v. Carothers

California Court of Appeals, Third District, Sierra

July 12, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
BOBBY GENE CAROTHERS, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Sierra County, No. CR02153X John P. Kennelly, Judge. Reversed with directions.

          THREE STRIKES PROJECT, Stanford Law School, and Michael S. Romano, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Michael P. Farrell, Assistant Attorneys General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

          HOCH, J.

         Defendant Bobby Gene Carothers, currently serving a prison term of 25 years to life imposed in 2008 under the three strikes law, appeals from the denial of his petition for resentencing under Proposition 36, the Three Strikes Reform Act of 2012 (as approved by voters, Gen. Elec. (Nov. 6, 2012) (the Act)). He contends the trial court erred in finding he was not eligible for resentencing because he was convicted of murder in Texas in 1978. Under the Act, a prior conviction for a number of enumerated offenses, including “[a]ny homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5” of the Penal Code, renders an inmate ineligible for resentencing.[1] (§§ 667, subd. (e)(2)(C)(iv)(IV), 1170.126, subd. (e)(3).) Defendant's argument is two-fold: (1) only prior California convictions can render an inmate ineligible for resentencing under the Act; and (2) even if a prior out-of-state conviction can render an inmate ineligible for resentencing, the record of defendant's Texas murder conviction does not necessarily show he committed a murder as that crime is defined under California law.

         We conclude a prior out-of-state conviction will render an inmate ineligible for resentencing under the Act if the crime committed in the other state would have disqualified the inmate had that crime been committed in California. However, because the crime defendant was convicted of committing in Texas might not have been a murder here in California, an enumerated disqualifying offense, the trial court incorrectly concluded he was ineligible for resentencing. We shall therefore reverse the order denying defendant's petition for resentencing and remand the matter to the trial court for a determination as to whether or not resentencing him would pose an unreasonable risk of danger to public safety.

         BACKGROUND

         In 2008, defendant entered a plea of no contest to one count of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and admitted having two prior strike convictions, a 1975 robbery conviction in California (§ 211) and a 1978 murder conviction in Texas (Tex. Pen. Code, § 19.02, subd. (b)(2)). He was sentenced to state prison to serve an indeterminate term of 25 years to life.

         The facts of the current offense and prior robbery are not relevant to this appeal. The facts of the prior murder, as revealed in the record of conviction, are that defendant killed the victim by stabbing him with a knife and hitting him on the head with a blunt object, conduct that was found by a Texas jury to be “clearly dangerous to human life” and done with the “inten[t] to cause serious bodily injury.”

         In November 2012, California voters approved Proposition 36. “The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment” (§§ 667, 1170.12) and “also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168, italics added.)

         In November 2014, defendant filed a petition to recall his sentence and for resentencing under section 1170.126. The prosecution opposed the petition. Acknowledging defendant's commitment offense was not a serious or violent felony, the prosecution argued defendant was nevertheless ineligible for resentencing under section 1170.126, subdivision (e)(3), which provides that “[a]n inmate is noteligible for resentencing if he or she has a prior conviction for any offense appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv).” (People v. Thurston (2016) 244 Cal.App.4th 644, 655-656, italics omitted.) Among the enumerated offenses is “[a]ny homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.” (§ 667, subd. (e)(2)(C)(iv)(IV).) The prosecution argued defendant's Texas murder conviction therefore disqualified him from being resentenced under the Act.

         In reply, defendant argued (1) the plain language of section 667, subdivision (e)(2)(C)(iv)(IV), is “limit[ed] to murders defined by the California Penal Code” and therefore “does not contemplate convictions from other states, ” and (2) even if out-of-state convictions can be disqualifying, “the specific Texas statute under which [defendant] was convicted... is equivalent to California's manslaughter statute” and manslaughter is not a disqualifying offense.

         At the hearing on the petition, responding to the prosecution's argument that the Texas record of conviction established the crime committed in that state, i.e., “stabbing a victim, and hitting him on the head with a blunt object, ” was the functional equivalent of a California implied malice murder, defendant's attorney argued: “The records that we have from Texas don't tell us anything about the nature of the conviction. They tell us essentially two facts, which are contained within the indictment and the jury instructions. And that is that there was one stab wound and that there was a hit with a blunt object, according to the instructions. [¶] We don't know anything further about the facts. We don't know how many stab wounds. We don't know how many times he was hit or with what instrument or what the instrument consisted of, or what the victim's actions were or what [defendant's] actions were.” Because the facts were not established in the record of conviction, defendant's attorney argued, the trial court should compare the California and Texas murder statutes and conclude the crime defendant committed in Texas was not necessarily a murder under California law because the statutes require different mental states.

         After taking the matter under submission, the trial court concluded defendant's Texas murder conviction disqualified him from being ...


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