Craig v. Superior Court CA2/6

Filed 7/22/14 Craig v. Superior Court CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

JAMES DAVID CRAIG, 2d Crim. No. B250309 2nd Crim. No. B249252 Petitioner, (Super. Ct. No. CR36454) (Ventura County) v. THE SUPERIOR COURT OF VENTURA COUNTY, Respondent, PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.

James David Craig seeks mandamus relief and purports to appeal from an order denying his post-judgment petition to recall a portion of a Three Strikes 55-year-to- life sentence imposed in 1995 after he was convicted of first degree residential burglary 1 (Pen. Code, § 459) and carrying a dagger (former § 12020, subd. (a), now § 21310). The petition to recall the sentence was filed pursuant to section 1170.126, also known as Proposition 36 or the Three Strikes Reform Act of 2012. (See People v. Yearwood (2013) 213 Cal.App.4th 161, 167.) The Attorney General argues that the order is nonappealable but Craig filed companion petitions for habeas (B249252) and mandamus relief. (See e.g., In re

1 All statutory references are to the Penal Code.

Martinez (2014) 223 Cal.App.4th 610, 615 [appeal treated as habeas writ].) We issued a writ of mandate directing respondent court to vacate its February 14, 2013 order and to determine, at a noticed hearing, whether imposition of a Two Strikes determinate term on count 2 for possession of a dagger would pose an unreasonable risk of danger to public safety. (§ 1170.126 subd. (f).) We deny the petition because of the armed-with- a-deadly weapon exclusion (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subdivision (c)(2)(C)(iii)) renders Craig ineligible for resentencing relief. (People v. White. (2014) 223 Cal.App.4th 512, petition for review denied April 30, 2014, S217030 (White).) Procedural History In 1995, Craig committed a residential burglary. He was arrested two weeks later with a double-edged knife, a dagger, on his person. He was convicted of first degree residential burglary (count 1; § 459) and possession of a dagger (count 2; § 12020, subd. (a)), with special findings that he suffered four prior strike burglary convictions and a prior serious felony conviction. (§ 667, subd. (a).) The trial court sentenced Craig to two consecutive 25-year-to-life terms plus five years on the serious felony enhancement (§ 667, subd. (a)), resulting in an aggregate sentence of 55 years to life state prison. In 1996, we affirmed the sentence in an unpublished opinion. (B098935 [Op. by Yegan, J., Stone, P.J., and Gilbert, J., concurring].) After the voters approved Proposition 36 on November 6, 2012, Craig filed a petition to recall the 25-year-to life sentence on count 2 only on the theory that possession of a dagger is not a violent/serious felony conviction. (§ 1170.126, subd. (b).) On February 14, 2013, the trial court denied the petition stating: "Mr. Craig was convicted of first degree burglary in this case, a 'strike' offense, and is therefore not eligible for resentencing under Penal Code section 1170.126. (See Pen. Code, section 1170.126(e)(1).)" Proposition 36 The Attorney General argues and, as indicated, the trial court ruled, that Craig is ineligible for section 1170.126 relief if one of the commitment offenses is a serious or violent felony. (See In re Martinez (2014) 223 Cal.App.4th 610, 620 [court