People v. Alvarez CA2/8

Filed 6/24/14 P. v. Alvarez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B255010

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA 079054) v.

ROY RIOS ALVAREZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court for the County of Los Angeles. James D. Otto, Judge. Affirmed.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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This case involves an inmate’s petition for recall of his sentence under Penal Code section 1170.126. (All statutory references are to the Penal Code.) In 2009, a jury convicted defendant Roy Rios Alvarez of assault with a deadly weapon (§ 245, subd. (a)(1)) and attempted criminal threat (§§ 422 & 664). In a bifurcated proceeding, the trial court found numerous prior conviction allegations to be true, including three convictions for serious felonies under the “Three Strikes” law. The court sentenced defendant to a total of 42 years to life: 25 years to life as a base sentence on each of the two counts, based on the prior strikes (§ 667, subd. (e)(2)(A)(ii)), the terms to run concurrently, plus 15 years consecutive for three prior serious felony convictions (§ 667, subd. (a)(1)), plus two additional years for prior prison terms (§ 667.5, subd. (b)). This court affirmed the judgment of conviction in an unpublished opinion, rejecting defendant’s contention that the evidence was insufficient to sustain his conviction for attempted criminal threat. (People v. Alvarez (May 25, 2010, B214382).) In November 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012 (the Act). The Act amended the Three Strikes law so that an indeterminate term of 25 years to life in prison is applied only “where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor”; otherwise, the recidivist is to be sentenced as a second strike offender. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168, citing §§ 667, 1170.12.) In addition, an inmate serving an indeterminate life sentence imposed under the Three Strikes law for a crime that is not a serious or violent felony, and who is not disqualified, may petition for recall of his or her sentence, and is eligible for resentencing as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.) On February 22, 2013, defendant filed a petition under section 1170.126 asking the trial court to recall his three strikes sentence and resentence him as a second striker. On February 14, 2014, the trial court denied defendant’s request with prejudice on the ground that his current conviction for attempted criminal threat (§§ 664 & 422) is a