People v. High CA2/6

Filed 8/26/14 P. v. High CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B253668 (Super. Ct. No. CR 39910) Plaintiff and Respondent, (Ventura County)

v.

JONATHON BURDETT HIGH,

Defendant and Appellant.

On November 6, 2012, voters approved Proposition 36, the Three Strikes Reform Act of 2012 amending Penal Code sections 667 and 1170.12, and adding section 1170.126 (the Act).1 "Under the 'three strikes' law . . . as it existed prior to Proposition 36, a defendant convicted of two prior serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a third felony. Under the Act, however, a defendant convicted of two prior serious or violent felonies is subject to the 25–years–to– life sentence only if the third felony is itself a serious or violent felony. If the third felony is not a serious or violent felony, the defendant will receive" a second strike sentence. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285-1286, fn. omitted (Kaulick).)

1 All further undesignated statutory references are to the Penal Code.

This case concerns section 1170.126 of the Act, which provides retroactive relief "whereby 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," receive a downward modification to a second strike sentence. (Kaulick, supra, 215 Cal.App.4th at p. 1286.) Section 1170.126 further provides, however, that a current inmate is not entitled to resentencing if the court in its discretion finds that doing so would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f); Kaulick, at p. 1286.) Jonathon Burdett High appeals from the order denying his petition for resentencing under the Act. He contends that the trial court erred in finding that resentencing him would pose an unreasonable risk of danger to public safety. We conclude the trial court did not abuse its discretion in so finding, and affirm. PROCEDURAL BACKGROUND2 In 1997, a jury convicted appellant of transportation of a controlled substance and possession of cocaine for sale (Health & Saf. Code, §§ 11352, subd. (a), 11351.5). Neither of these offenses was a serious or violent felony. He had two prior felony strikes. The trial court sentenced him to serve 25 years to life in prison, pursuant to the three strikes law.3 On February 6, 2013, appellant filed a petition with the trial court requesting that it recall his three strike sentence and resentence him as a second strike offender, pursuant to section 1170.126 of the Act. The prosecution opposed the petition. The court conducted a hearing and, in the exercise of its discretion, determined "that resentencing [appellant] would pose an unreasonable risk of danger to public safety" and denied his petition. (§ 1170.126, subd. (f).)