People v. Kimble CA3

Filed 7/14/14 P. v. Kimble CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C073819

Plaintiff and Respondent, (Super. Ct. No. CM026600)

v.

KELLY VAUGHN KIMBLE,

Defendant and Appellant.

Defendant Kelly Vaughn Kimble appeals from the trial court’s denial of his petition for resentencing under the Three Strikes Reform Act of 2012. He contends a jury was required to find him dangerous beyond a reasonable doubt for the trial court to deny his petition for resentencing and, barring that, the trial court should have made the dangerousness finding “upon a showing of clear and convincing evidence.” Following the decision of another appellate court (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 (Kaulick)), we affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND In 2008, a jury found defendant guilty of stalking his girlfriend and the court sentenced him to prison for 25 years to life under the three strikes law because he also had prior convictions for attempted kidnapping and criminal threats. The stalking trial included evidence that defendant slapped his girlfriend so hard she could not hear for three days and repeatedly threatened to kill her and then her parents. Four years after defendant’s three strikes sentence, the electorate passed the Three Strikes Reform Act. Under the Three Strikes Reform Act, “prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction.” (Kaulick, supra, 215 Cal.App.4th at pp. 1285, 1286.) If a defendant such as the one here satisfies certain criteria, “the petitioner shall be resentenced . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (Pen. Code,1 § 1170.126, subd. (f).) In the trial court, defendant argued in his written motion that his “sentence reduction . . . c[ould] only be denied following a hearing where the prosecution proves by a preponderance of the evidence that resentencing [him] . . . would pose a current, unreasonable risk to public safety.” “In determining whether resentencing [him] would pose an unreasonable risk to public safety, th[e trial] [c]ourt must assess [his] current danger to the community.” And “there [wa]s insufficient evidence for the court to make a finding that [he] presents a current, unreasonable danger to public safety.”