People v. Turnage CA3

Filed 4/15/15 P. v. Turnage CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C075153

Plaintiff and Appellant, (Super. Ct. Nos. CRF041665, CRF065019) v.

BARRY TURNAGE,

Defendant and Respondent.

This is an appeal by the People. The sole issue is whether a defendant who was originally sentenced to an indeterminate term under the “three strikes” law as it stood prior to November 7, 2012, the operative date of the Three Strikes Reform Act of 2012 (the Act), and whose sentence is vacated on appeal and the matter remanded for resentencing after November 7, is entitled to be resentenced to a determinate term as provided by the Act’s amendment to the three strikes law. The trial court herein concluded defendant was so entitled because this court’s having vacated his sentence rendered him an unsentenced defendant within the meaning of the Act and therefore imposed a determinate sentence.

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For reasons we explain, we conclude that, consistent with the intent of the Act, it is the date upon which the defendant’s sentence was originally imposed that determines whether the defendant is entitled to be sentenced under the Act. Because defendant herein was originally sentenced prior to November 7, he was not entitled to be sentenced under the Act. Accordingly, we shall vacate defendant’s sentence and remand the matter for resentencing. THE ACT On November 6, 2012, the voters passed the Act and it became operative on November 7, 2012. The Act consisted of two parts, one prospective and the other retrospective. The prospective part amended the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 to provide second-strike sentencing to defendants who were to be sentenced on or after November 7, who had two or more prior serious or violent felony convictions but whose present felony was neither serious nor violent nor were the defendants excluded because they came within the scope of other specified circumstances (§ 667, subd. (e)).2 The retrospective part of the Act added section 1170.126 to the Penal Code. This section permitted defendants who were serving indeterminate three-strike sentences imposed prior to November 7, 2012, to petition the trial court for resentencing as second- strike offenders if the felony for which they were serving the indeterminate term was not a serious or violent felony and they were not excluded from such sentencing because they came within the scope of other specified circumstances. Defendants meeting these