People v. Diaz CA2/2

Filed 5/28/14 P. v. Diaz CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B251397

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA023829) v.

AUGUSTIN DIAZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, James A, Uyeda, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Augustin Diaz appeals from the denial with prejudice of his petition for recall of sentence pursuant to the Three Strikes Reform Act of 2012. Defendant suffered convictions in 1996 for three counts of residential burglary (Pen. Code, § 459)1 and one count of receiving stolen property (§ 496, subd. (a)). The trial court found that defendant had suffered two prior strike convictions for first degree burglary within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions within the meaning of section 667, subdivision (a). On appeal, this court reversed one of the residential burglary counts and vacated the sentence on that count. We affirmed the trial court’s imposition of two consecutive terms of 25 years to life for the other two burglary convictions and the two consecutive five-year terms for the two prior serious felony enhancements. We modified defendant’s two-year consecutive term for receiving stolen property to a third consecutive term of 25 years to life, resulting in a total sentence of 85 years to life. Defendant appeals on the ground that he is entitled to a Proposition 36 recall and resentencing of the 25-years-to-life sentence imposed on his conviction for receiving stolen property because that crime is not a serious or violent felony. DISCUSSION I. Relevant Authority “On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended sections 667 and 1170.12 and added section 1170.126 (hereafter 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. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated