People v. Flores CA2/6

Filed 5/20/15 P. v. Flores CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B251551 (Super. Ct. No. CR42976) Plaintiff and Respondent, (Ventura County)

v.

PHILIP EDWARD FLORES,

Defendant and Appellant.

Philip Edward Flores appeals the order denying his petition for resentencing under the Three Strikes Reform Act of 2012 (the Act). (Pen. Code,1 §§ 667, 1170.12, 1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).) Appellant challenges the trial court's finding that he was ineligible for resentencing because his sentence was imposed for a crime in which he "intended to cause great bodily injury to another person." (§§ 667, subd. (e)(2)(C)(iii), 1170.126, subd. (e)(2), 1170.12, subd. (c)(2)(C)(iii).) We affirm. BACKGROUND Appellant is serving an indeterminate term of 25 years to life under the three strikes law for assault with force likely to produce great bodily injury (§ 245, subd.

1 All further statutory references are to the Penal Code.

(a)(4)). His prior strike convictions are for kidnapping (§ 207) and attempted voluntary manslaughter (§§ 192, 664). In 2013, appellant petitioned for resentencing as a second-strike offender under section 1170.126. The People opposed the petition on the ground that appellant posed an unreasonable risk of danger to public safety, as provided in subdivision (f) of section 1170.126. The People stated the facts of appellant's current offense as follows:2 "[Appellant] picked up a . . . prostitute and drove her to a nearby house. As they entered the house and without provocation [appellant] began punching her repeatedly in the face and arms. [Appellant] was wearing something sharp on his fingers and used these to cut into her right lower arm, severing her tendons. . . . The victim tried to crawl away and [appellant] continued to punch her. She was finally able to get to the door and escape. She was found by a citizen lying on a sidewalk, bleeding profusely from her arm, with a bloody nose and a large bump on her left cheekbone. . . ." At the hearing on appellant's petition, the trial court tentatively found appellant was not eligible for resentencing under subdivision (e)(2) of section 1170.126, because his current offense of assault by means of force likely to produce great bodily injury was committed with the intent to cause great bodily injury. Although appellant's intent in that regard was not pled or proved, the court reasoned that "the cursory review of the jury instructions shows that committing that act requires only general intent; therefore, if you acted, one could be presumed to have intended to cause the damage and injuries it [sic] did, i.e., great bodily injury whether it's alleged or proven or not." The court then referred to the victim's preliminary hearing testimony that "[t]he veins [in her arm] were sticking out" and "[t]here was blood everywhere" after appellant "stabbed" her with a knife or a similar weapon. In light of this evidence, the court concluded, "we don't