People v. Dunckhurst

Filed 5/30/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C074341

Plaintiff and Respondent, (Super. Ct. No. 05F1322)

v.

STEPHEN CHRISTOPHER DUNCKHURST,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Shasta County, William D. Gallagher, Judge. Affirmed.

Deanna Lamb, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Kevin L. Quade, Deputy Attorney General, for Plaintiff and Respondent.

1

Stephen Christopher Dunckhurst appeals from the denial of his petition to recall his sentence under the Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, 1170.12, 1170.126;1 Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); hereafter the Act). He contends the trial court erred in finding him ineligible to have his sentence for vehicle theft recalled. The trial court’s finding of ineligibility was based on Dunckhurst’s commission of a disqualifying offense, assault upon an inmate with a deadly weapon or force likely to cause great bodily injury (§ 4500), while in prison. Dunckhurst argues it was error to use his 2010 prison offense to disqualify him from recall of his 2005 sentence because the 2010 offense was not a “prior conviction,” as required under section 1170.126, subdivision (e)(3). We find Dunckhurst was ineligible for recall of his sentence and affirm the judgment. BACKGROUND In 2005, the trial court sentenced Dunckhurst to an aggregate term of 33 years to life in prison. The sentence consisted of a three strikes (§§ 667, subds. (b)-(i), 1170.12) sentence of 25 years to life for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) in case No. 05F1322, and an eight-year sentence (the three-year upper term doubled plus two years for two prior prison term enhancements) for possession of a deadly weapon by a prisoner (§ 4502) in case No. 05F4161. In 2010, the Kings County Superior Court sentenced Dunckhurst to a consecutive term of 30 years to life for assault on an inmate with a deadly weapon or by means of force likely to cause great bodily injury, with two strikes, and a great bodily injury enhancement (§ 12022.7, subd. (a)). The sentence consisted of nine years to life tripled plus three years for the enhancement.