People v. Hewitt CA2/6

Filed 10/20/14 P. v. Hewitt CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B253447 (Super. Ct. No. F230079) Plaintiff and Respondent, (Santa Barbara County)

v.

EDDIE JOE HEWITT,

Defendant and Appellant.

Eddie Joe Hewitt appeals the denial of his petition to recall a Three Strikes indeterminate sentence and be resentenced as a second strike offender pursuant to Penal 1 Code section 1170.126, also known as Proposition 36. The superior court denied the petition on the ground that appellant poses an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) We affirm. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303.) Appellant's Three Strikes commitment is for conspiracy (§ 182, subd. (a)) and possession of marijuana in a prison facility (§ 4573.6), both nonserious and nonviolent offenses. In 1995 appellant conspired with his wife to smuggle marijuana into the prison facility where he was housed. The trial court imposed a Three Strikes sentence of 25 years to life.

1 All statutory references are to the Penal Code.

Appellant petitioned for resentencing pursuant to section 1170.126. Appellant is 50 year old and has the following violent criminal history: A 1991 robbery conviction resulting in a seven year prison sentence. Appellant and an accomplice robbed a BMW car salesman at gunpoint during a test drive. A 1994 double homicide conviction in which appellant and an accomplice kidnapped and executed two people. Appellant agreed to testify against his accomplice and was allowed to plead guilty to two counts of voluntary manslaughter and two counts of kidnapping. He was sentenced as a two strikes offender to 19 years 8 months state prison. In 1995, while serving the prison sentence, appellant conspired with his wife to smuggle marijuana into prison. He was convicted of conspiracy and possession of marijuana in a prison facility and sentenced as a three strikes offender to 25 years to life state prison. Unreasonable Risk of Danger Proposition 36 creates a postconviction release procedure whereby a qualifying prisoner serving a Three Strikes indeterminate life sentence may have his or her sentence recalled and be resentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (People v. Yearwood (2013) 213 Cal.App.4th 161, 168.) Appellant argues that there is no nexus between the commitment offense, possession of .7 grams of marijuana, and the court's finding of current dangerousness. He claims that Proposition 36 was enacted to assure that only the most dangerous remain in prison. Public safety, however, is a paramount concern. (Id., at p. 175.) The superior court may deny a section 1170.126 petition if, after examination of the prisoner's criminal history, disciplinary record while incarcerated, and other relevant evidence, it determines that the prisoner poses "an unreasonable risk of danger to public safety." (§ 1170.126, subd. f); see People v. Flores (2014) 227 Cal.App.4th 1070, 1076-1076; People v. Yearwood, supra, 213 Cal.App.4th at p. 176.) The court here denied appellant's petition on the following grounds: "Petitioner, despite having done and accomplished a number of positive things while in prison, as established by the certificates, letters of commendation and offers of employment,