People v. Buck CA3

Filed 6/25/15 P. v. Buck CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE, C076569

Plaintiff and Respondent, (Super. Ct. No. CH024889)

v.

GREGORY ALLEN BUCK,

Defendant and Appellant.

Defendant Gregory Allen Buck appeals from the trial court’s denial of his petition for resentencing under the Three Strikes Reform Act of 2012 (the Act) based on the court’s finding that resentencing would pose an unreasonable risk of danger to public safety. (Pen. Code, § 1170.126.)1 He contends that he has a right to a jury trial on the danger to public safety issue. In a supplemental brief, he contends that the definition of unreasonable risk of danger to public safety found in the resentencing provision of

1 Undesignated statutory references are to the Penal Code.

1

Proposition 47, section 1170.18, applies to the determination of whether resentencing would pose such a risk. We affirm. FACTUAL AND PROCEDURAL BACKGROUND We take the facts of defendant’s current crime from this court’s opinion affirming his conviction and sentence. (See People v. Guilford (2014) 228 Cal.App.4th 651, 660- 661 [prior appellate opinion admissible to prove ineligibility in a section 1170.126 proceeding].) Defendant, an inmate at High Desert State Prison, and another inmate attacked a third inmate, causing the victim to sustain puncture wounds to his chest and right side. (People v. Buck (June 25, 2010, C061898) [nonpub. opn.] slip opn. at pp. 2-3 (Buck).) A jury convicted defendant of assault with a deadly weapon or by force likely to cause great bodily injury by an inmate serving less than a life sentence. (§ 4501; Buck, at p. 1.) The trial court found two strike allegations true and sentenced defendant to 25 years to life, consecutive to the term he had been serving at the time of the assault. (Buck, at pp. 1-2.) On November 8, 2013, defendant filed a petition for resentencing pursuant to section 1170.126. The trial court found defendant was potentially eligible for resentencing and ordered a hearing on the matter. Harold Wagner, a deputy warden at High Desert State Prison, was the sole witness. Deputy Wagner recited defendant’s criminal record, which consisted of the following convictions: vandalism in 1981; misdemeanor petty theft in 1982; misdemeanor petty theft with a prior in 1986; unlawful taking of a vehicle, receiving stolen property, and giving false identification to a police officer in 1987; assault with a deadly weapon, unlawfully taking a vehicle, and second degree robbery in 1988; misdemeanor petty theft with a prior in 1990; misdemeanor possession of dangerous drugs without a prescription and misdemeanor possession of a controlled substance in 1991; being under the influence of a controlled substance, misdemeanor hit and run