California Court of Appeal May 21, 2014 No. E058936Unpublished
Filed 5/21/14 P. v. Vicario CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E058936
v. (Super.Ct.No. FCH07176)
ALFRED VICARIO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
So’Hum Law Center of Richard Jay Moller and Richard Jay Moller, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton, and Heather
M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
On July 16, 2008, a jury found defendant and appellant Alfred Vicario guilty of
appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we
will review defendant’s appeal.”
B. The Act
“The Act changes the requirements for sentencing a third strike offender to an
indeterminate term of 25 years to life imprisonment. Under the original version of the
three strikes law a recidivist with two or more prior strikes who is convicted of any new
felony is subject to an indeterminate life sentence. (Yearwood, supra, 213 Cal.App.4th at
pp. 167.) “However, the Act altered the previous three strikes law and limits three strikes
sentences to current convictions of serious or violent felonies and a limited number of
other felonies [footnote omitted] unless the offender has a prior strike conviction that
falls within one of the several enumerated categories. [Footnote omitted.] If these
exceptions do not apply to a defendant, then the court is to sentence the defendant as a
second strike offender. (See Yearwood, supra, 213 Cal.App.4th at p. 168; §§667,
1170.12.)” (In re Martinez, supra, 223 Cal.App.4th at pp. 615-616.) “Section 1170.126
also establishes a procedure for qualified inmates serving indeterminate life sentences
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under the three strikes law to seek resentencing under the terms of the amended law.”
(Id. at p. 616.)
In this case, defendant was convicted for shooting at an inhabited dwelling under
section 246 (count 1) and possession of a firearm by a felon under section 12021,
subdivision (a)(1) (count 2). While defendant concedes that his sentence for count 1 is
ineligible for resentencing, he claims that “[b]ecause possession of a firearm by a felon is
not a serious or violent felony, [defendant] was presumptively eligible for resentencing
on this offense.” This precise issue was decided recently in In re Martinez, supra, 223
Cal.App.4th 610.
In In re Martinez, supra, 223 Cal.App.4th 610, the defendant was convicted of
inflicting corporal injury on his wife (count 1); attempted forcible sodomy (count 3);
attempted forcible sexual penetration (count 4); and spousal rape (count 5). The jury
found true that the defendant had two prior strike convictions for robbery, both serous
and violent felonies. The court struck his two previous strikes as to counts 3 and 4. The
court then sentenced the defendant as a third strike offender to an indeterminate term of
50 years to life in prison, consisting of an indeterminate term of 25 years to life for count
1 and a consecutive 25 years to life for count 5. The court also sentenced the defendant
to prison for four years under count 3 and four years under count 4, both to run
concurrently to his sentence for count 1. (Id. at p. 614.)
After the Act went into effect, the defendant filed a motion under section
1170.126. The trial court “summarily denied the petition, finding [the defendant] was
disqualified from seeking relief under the statute because his ‘current commitment
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offenses include PC289(a)(1) and PC262 and PC664/286(c)(2) are serious and violent
felonies making [the defendant] ineligible for re-sentencing under PC1170.126.’” (In re
Martinez, supra, 223 Cal.App.4th at p. 614.) The issue on appeal in that case was
identical to the issue on appeal here: “[W]hether a court, in considering a petition for
resentencing under section 1170.126, must consider all the offenses on which the
petitioner was sentenced or consider each offense and related term of imprisonment
separately.” (Id. at p. 617.)
The court of appeal concluded that the trial court correctly found that the
defendant was not eligible for resentencing under section 1170.126 because one of his
convictions was a violent and serious felony. The court stated: “We interpret section
1170.126 as requiring the superior court to consider all felonies that led to any
indeterminate life sentence under the previous version of the three strikes law. If one of
those felonies is a serious or violent felony or is otherwise disqualifying under the Act,
section 1170.126 does not apply. . . . The Act clearly was not intended to apply to a
certain type of dangerous criminal.” (In re Martinez, supra, 223 Cal.App.4th at p. 620.)
Defendant, however, argues that “[i]t would be inappropriate for this Court to rely
on In re Martinez, supra, slip opn. at 8-13, as the state has summarily urged, because the
Martinez court improperly conflated the eligibility requirements for resentencing under
section 1170.126, and the no ‘unreasonable risk of danger to public safety,’ requirement.”
Notwithstanding defendant’s disagreement with the recently-published opinion in In re
Martinez, supra, 223 Cal.App.4th 610, we agree with the court that section 1170.126
requires the trial court “to consider all felonies that led to any indeterminate life sentence
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under the previous version of the three strikes law. If one of those felonies is a serious or
violent felony or is otherwise disqualifying under the Act, section 1170.126 does not
apply.” (Id. at p. 620.)
In this case, defendant was convicted of shooting at an inhabited dwelling in count
1 and possession of a firearm by a felon in count 2. Defendant concedes “that his
conviction for shooting at an inhabited dwelling [is] a strike.” Under In re Martinez,
supra, 223 Cal.App.4th 610, 620, because of defendant’s conviction in count 1, defendant
is not eligible for resentencing under section 1170.126.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
HOLLENHORST Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is ineligible for resentencing under the Three Strikes Reform Act if any of the current commitment offenses that led to an indeterminate life sentence is a serious or violent felony.
Issues
Whether a trial court must consider all offenses leading to an indeterminate life sentence or each offense separately when determining eligibility for resentencing under Penal Code section 1170.126.
Whether the trial court's denial of a petition for resentencing under Penal Code section 1170.126 is an appealable order.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We interpret section 1170.126 as requiring the superior court to consider all felonies that led to any indeterminate life sentence under the previous version of the three strikes law.”
“If one of those felonies is a serious or violent felony or is otherwise disqualifying under the Act, section 1170.126 does not apply.”