People v. Melchionne CA4/3

Filed 4/25/14 P. v. Melchionne CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049233

v. (Super. Ct. No. 96SF0967)

MARIO ANTHONY MELCHIONNE, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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A jury convicted defendant Mario Anthony Mechionne in 1997 of receiving stolen property, possessing a firearm while a felon, and possessing a controlled substance. The trial court sentenced defendant to an indeterminate 76 years to life in state prison. We affirmed the judgment in an unpublished opinion (People v. Melchionne (Dec. 30, 1999, G022815) [nonpub. opn.]). Subsequently in 2005, defendant pleaded guilty to first degree murder and was sentenced to an indeterminate 75 years to life, to run consecutive to the sentence imposed in the present case. In November 2012, the electorate passed Proposition 36, also known as the Three Strikes Reform Act. Among other things, Proposition 36 permits persons currently serving an indeterminate life term under the “Three Strikes” law to petition to be resentenced to a determinate term as a second striker if the court determines, in its discretion, that the defendant meets the criteria of Penal Code section 1170.126, subdivision (e) (all further statutory references are to this code). As relevant here, defendants are eligible for resentencing if their “current sentence was not imposed for” certain crimes including a violent or serious felony as defined under sections 667.5, subdivision (c) or 1192.7, subdivision (c). (§ 1170.126, subd. (e)(2), italics added.) Murder is both a violent and serious felony under sections 667.5, subdivision (c)(1) and 1192.7, subdivision (c)(1). Defendant petitioned to be resentenced under section 1170.126, contending his convictions in this case were not classified as violent or serious felonies. The court denied his petition on the ground defendant’s murder conviction made him ineligible for resentencing because the murder sentence had been “imposed.” In doing so, the court rejected defendant’s argument that the sentence on the murder did not qualify as a current sentence because he had not begun serving it. Defendant timely appealed, and we appointed counsel to represent him. Counsel filed a brief summarizing the facts of the case and, while not arguing against defendant, advised this court he could find no issues to argue on defendant’s behalf.