People v. Escobedo CA2/6

Filed 8/11/14 P. v. Escobedo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, 2d Crim. No. B251093 (Super. Ct. No. CR38966) Plaintiff and Respondent, (Ventura County)

v.

LUPE GONZALES ESCOBEDO,

Defendant and Appellant.

Lupe Gonzales Escobedo appeals an order denying his petition for resentencing under Penal Code section 1170.1261 of the Three Strikes Reform Act of 2012 (§§ 667, 1170.12, 1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).) Escobedo contends that he is entitled to resentencing because the People did not prove beyond a reasonable doubt that he poses an unreasonable risk of danger to the public if released. We conclude that a lower sentence modification under section 1170.126 of the Three Strikes Reform Act does not implicate Sixth Amendment concerns. We affirm.

1 All statutory references are to the Penal Code unless otherwise stated.

FACTUAL AND PROCEDURAL HISTORY Escobedo is serving a term of 50 years to life under the three strikes law for a 1998 conviction upon plea of guilty to two counts of receiving stolen property. (§ 496, subd. (a).) Escobedo's criminal history include serious and violent felony convictions. Escobedo petitioned the trial court to recall his sentence and to resentence him as a second strike offender under section 1170.126. The People opposed the petition. The court conducted a hearing in which it received evidence of Escobedo's criminal history and his conduct while incarcerated. It also heard testimony from Escobedo and three other witnesses about his reform. The trial court found that Escobedo is eligible to be considered for resentencing because he is serving an indeterminate term under the three strikes law and his current sentence was not imposed for a serious or violent felony. (§ 1170.126, subd. (e).) But the court exercised its discretion not to resentence Escobedo because it found that he would pose an unreasonable risk of danger to public safety. (Id. subd. (f).) The court explained its reasons in a written decision. It expressed concern about Escobedo's serious and violent criminal conviction history and his lengthy record of discipline while incarcerated. The trial court concluded that, "the People have proven, by a preponderance of the evidence, that the defendant poses an unreasonable risk of danger to the public safety should he be released. If the correct standard of proof in a petition such as this is proof beyond a reasonable doubt, the court would not find that the People have met their burden." DISCUSSION The Three Strikes Reform Act Under the three strikes law as it existed before Proposition 36, a defendant convicted of two prior serious or violent felonies was subject to a sentence of 25 years to life upon conviction of any third felony. The Three Strikes Reform Act of 2012 reduces punishment for certain non-violent third-strike offenders. Prisoners such as Escobedo, who are currently serving an indeterminate sentence for a third felony conviction which