People v. Clapham CA1/3

Filed 10/8/14 P. v. Clapham CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A138849 v. RICHARD ALLEN CLAPHAM, (Sonoma County Super. Ct. No. SCR-499844) Defendant and Appellant.

Defendant Richard Clapham appeals from an order denying his motion for resentencing under Penal Code section 1170.126, the Three Strikes Reform Act of 2012 (the Reform Act).1 He contends the court erred when it determined that one of his prior strike convictions disqualified him from resentencing under the Reform Act. We agree with the trial court that Clapham’s prior conviction for assault with the intent to commit a lewd or lascivious act on a child under age 14 makes him ineligible for resentencing under section 1170.126, so we affirm. BACKGROUND In 2007, Clapham entered a no contest plea to indecent exposure and admitted prior strikes that include a 1995 conviction for assault with intent to commit a lewd and lascivious act on a child under the age of 14 (§§ 220, 228). He received an indeterminate sentence of 25 years to life in prison.

1 Unless otherwise noted, further statutory references are to the Penal Code. 1

On January 3, 2013, defendant moved to vacate his sentence and for resentencing under the Reform Act. After a hearing, the court denied his motion because his 1995 strike conviction was a sexually violent offense as specified by Welfare and Institutions Code section 6600.1, and therefore Clapham was disqualified from resentencing under the Reform Act. The court alternatively found that a post-sentence probation report related to the 1995 conviction supported a finding that the offense was forcible, and for that reason as well found Clapham ineligible for resentencing. Clapham filed this timely appeal. DISCUSSION I. The Reform Act Voters approved the Reform Act in 2012, thereby amending the “Three Strikes” law so that an indeterminate prison term of 25 years to life may be imposed as a third strike only where the conviction is a serious or violent felony or the prosecution pleads and proves other specified factors. (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) The Act also added section 1170.126, which allows felons sentenced under the previous version of the Three Strikes law to petition for resentencing if they would not have received an indeterminate life sentence under the Reform Act. (§ 1170.126, subds. (a)-(b).) Consideration of a request for resentencing under the Reform Act is a two-step process. First, the court determines whether the inmate is eligible for resentencing under section 1170.126, subdivision (e), which depends on both the nature of the offense for which he or she was sentenced to life (§ 1170.126, subd. (e)(1)-(2)) and the nature of his or her other crimes that qualified as strikes (§ 1170.126, subd. (e)(3)).2 A defendant who