The People v. Garner CA3

Filed 10/4/13 P. v. Garner CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C070240

Plaintiff and Respondent, (Super. Ct. No. 62-094750)

v.

DONALD KEITH GARNER,

Defendant and Appellant.

Pursuant to a plea bargain, defendant Donald Keith Garner pleaded no contest to a charge of receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted three prior prison terms and four prior “strike” convictions (under the three strikes law), in exchange for dismissal of the remaining charges (commercial burglary, petty theft with priors, and marijuana possession).1

1 Undesignated statutory references are to the Penal Code.

1

Sentenced under the three strikes law to 25 years to life, defendant appeals. He contends (1) Proposition 36, which the electorate passed in November 2012 to reform the three strikes law, applies to his case and he should be resentenced under the “two strikes law”; (2) alternatively, because the record shows that the conduct underlying three of his four strike convictions was not “serious felony” conduct, the imposition of a three strikes sentence was an abuse of discretion, even under pre-Proposition 36 law; and (3) a restitution fine was erroneously imposed (defendant has withdrawn this argument, having already obtained the relief sought).

We shall affirm the judgment. Given defendant‟s contentions on appeal, providing background facts is unnecessary.

DISCUSSION

I. Defendant Must Seek Resentencing Under Proposition 36 Through a Petition for a Recall of Sentence in the Trial Court Pursuant to Section 1170.126

Defendant contends this court should vacate his three strikes sentence and remand his case to the trial court for resentencing pursuant to amendments to sections 667 and 1170.12 of the three strikes law; the electorate enacted these amendments in November 2012 by passing Proposition 36.