People v. Lucas CA2/6

Filed 11/19/24 P. v. Lucas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B328583 (Super. Ct. No. 1429694) Plaintiff and Respondent, (Santa Barbara County)

v.

KERMIT STEPHEN LUCAS, JR.,

Defendant and Appellant.

Kermit Stephen Lucas, Jr., appeals from the trial court’s order denying his petition for recall and resentencing pursuant to Penal Code section 1172.75.1 The trial court denied the petition on the erroneous belief that appellant had already served the invalid prior prison term enhancement. (§ 667.5, subd. (b).) However, because appellant is not presently eligible for relief, we affirm.

1 All further statutory references are to the Penal Code.

Procedural Background In 2008, appellant pleaded guilty to theft from an elder or dependent adult (§ 368, subd. (d)) and was sentenced to state prison for an indeterminate term of 25 years to life pursuant to the “Three Strikes” law. In 2013, while in prison, appellant assaulted an inmate. He pleaded no contest to battery with serious bodily injury and admitted the personal infliction of great bodily injury enhancement. (§§ 243, subd. (d), 1192.7, subd. (c).) He was sentenced to a consecutive, determinate term of 10 years, which included a one-year prior prison term enhancement. (§ 667.5, subd. (b).) In September 2022, the California Department of Corrections and Rehabilitation (CDCR) identified appellant as an inmate possibly eligible for resentencing pursuant to section 1172.75. The trial court appointed counsel for appellant and permitted briefing. In his briefing and at the eligibility hearing, appellant argued that his 2008 indeterminate sentence and his 2013 determinate sentence combined to form one aggregate sentence, and he was entitled to a full resentencing hearing as to the “aggregate term.” The prosecution argued that appellant was entitled to have his 2013 determinate sentence recalled and to have the one-year prison prior stricken but opposed reopening the 2008 conviction. The trial court denied the petition, stating: “It appears defendant does not qualify for relief under Senate Bill 483, as the sentencing in the [2013 case] is a determinate term that has already been served. [¶] Penal Code §§ 1172.7 and 1172.75 permit resentencing if the [CDCR] identifies a person in their