People v. Duncan CA2/1

Filed 5/29/15 P. v. Duncan CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B259091

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA026890) v.

CHESTER DUNCAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed. Chester Duncan, in pro. per.; Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. __________________________________

On July 30 1997, the trial court in this matter sentenced Chester Duncan to 35 years to life in prison after a jury found him guilty of arson of an inhabited structure (Pen. 1 Code, § 451, subd. (b)). After finding Duncan had sustained two or more prior serious felonies (robberies), the court imposed a term of 25 years to life under the “Three Strikes” law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), plus two consecutive five- year terms under the prior serious felony enhancement (§ 667, subd. (a)(1)). On or about August 14, 2014, Duncan filed a petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36. (§ 1170.126.) Under section 1170.126, an “inmate is eligible for resentencing if” the inmate “is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).) Although Duncan styled this petition as a “Petition for Writ of Habeas Corpus,” and referenced claims of factual innocence and miscarriage of justice in connection with his arson conviction, he made clear he was seeking recall of his sentence and a resentencing hearing under section 1170.126. On August 15, 2014, the trial court issued a memorandum of decision dismissing Duncan’s petition (which the court characterized as a petition for reconsideration) without a hearing on the following grounds: “Defendant [Duncan] previously submitted a petition for recall of sentence pursuant to Penal Code section 1170.126, which was denied with prejudice on March 13, 2013. Defendant’s current conviction is for arson (Penal Code section 451(b)), which is a violent felony pursuant to Penal Code section 667.5(c)(10), making Defendant ineligible for resentencing pursuant to Penal Code 2 section 1170.126(e)(2).” The court’s August 15, 2014 decision also states: “With