People v. Fairly CA3

Filed 5/15/15 P. v. Fairly CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C076914

Plaintiff and Respondent, (Super. Ct. No. 96F07797)

v.

CHISI RAY FAIRLY,

Defendant and Appellant.

In August 1997, defendant Chisi Ray Fairly was sentenced to 50 years to life plus 10 years, following his conviction for first degree burglary (Pen. Code, § 459)1 and two counts of petty theft with a prior (§ 666) with two strikes and two serious felonies.2

1 Undesignated statutory references are to the Penal Code.

2 Defendant received two consecutive 25-year-to-life terms (first degree burglary and one count of petty theft with a prior) plus 10 years for the serious felony enhancements, for an aggregate sentence of 60 years to life in state prison. Sentencing on the other count of petty theft with a prior was stayed pursuant to section 654.

1

Defendant filed a petition for resentencing pursuant to section 1170.126 in June 2014. The trial court denied the petition, finding defendant ineligible for resentencing because the 1997 burglary conviction was a serious felony, which therefore disqualified him from resentencing.

On appeal, defendant contends he was eligible for resentencing for the crime that was not a serious or violent felony or otherwise disqualified him from section 1170.126 resentencing.3 We shall affirm.

DISCUSSION4

Section 1170.126 is not transparent about its application to a defendant who is presently sentenced to a hybrid indeterminate life sentence composed of indeterminate life terms for both qualifying and disqualifying felonies. It declares its intent to apply “exclusively to persons presently serving an indeterminate term of imprisonment . . . whose sentence . . . would not have been an indeterminate life sentence” under the 2012 amendments to section 667. (§ 1170.126, subd. (a).) It then authorizes “[a]ny person serving an indeterminate term of life imprisonment” under former section 667 “upon conviction . . . of a felony or felonies that are not defined as serious and/or violent felonies” to file a recall petition for resentencing under the present provisions. (§ 1170.126, subd. (b).) The petition must include “all of the currently charged [sic] felonies [that] resulted in the sentence” presently served, along with all the findings of prior serious or violent felony convictions. (§ 1170.126, subd. (d).) The inmate is