California Court of Appeal Jul 24, 2015 No. E061922Unpublished
Filed 7/24/15 P. v. Thrash CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061922
v. (Super.Ct.No. BLF004730)
WILLIAM LEONARD THRASH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Allison
V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
In October 2010, defendant William Leonard Thrash was sentenced under the
“Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 to 25 years to life in
prison for one of two current felony convictions for assaulting a correctional officer by
The Act also added section 1170.126 to the Penal Code. (People v. Yearwood,
supra, 213 Cal.App.4th at p. 170.) Section 1170.126 allows inmates serving a life term
under the former Three Strikes law, for a nonserious or nonviolent felony, to petition the
trial court that imposed the sentence to recall the sentence and resentence the defendant
under the Act. (§ 1170.126, subd. (b).) If the defendant meets the statutory criteria for
resentencing listed in section 1170.126, subdivision (c)—that is, (1) the defendant is
currently serving a life term for a felony or felonies that are neither serious nor violent,
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(2) the defendant’s current offense was not a disqualifying offense listed in sections 667,
subdivision (e)(2)(C)(i) to (iii) and 1170.12, subdivision (c)(2)C)(i) to (iii), and (3) the
defendant does not have a prior disqualifying conviction listed in sections 667,
subdivision (e)(2)(C)(iv) and 1170.12, subdivision (c)(2)(C)(iv)—then the court is
required to resentence the defendant as a second strike offender under the Act, “unless
the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
B. The Resentencing Proceedings
In 2013, defendant petitioned the trial court to recall his 25-year-to-life sentence
for the first of his two section 4501 convictions, and resentence him under the Act as if he
were only a second strike offender. (§ 1170.126, subd. (b).) Following a January 2014
hearing, the court denied the petition on the ground defendant was ineligible to be
resentenced under the Act because he was already serving a life sentence when he
committed the section 4501 offenses. Defendant petitioned for a rehearing. The court
granted a rehearing and set a “suitability” hearing to determine whether defendant would
pose an unreasonable risk of danger to public safety if resentenced under the Act.
(§ 1170.126, subds. (f), (g).)
The suitability hearing was held in September 2014, when defendant was 65 years
old. The hearing focused on whether defendant would pose an unreasonable risk of
danger to public safety if resentenced under the Act. (§ 1170.126, subds. (f), (g).) The
court found defendant was unsuitable for resentencing under the Act, based on his history
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of committing violent crimes, including his section 4501 assaults on the correctional
officers in 2007, when he was 57 years old, and because, in 2013, defendant was found in
possession of methamphetamine, heroine, morphine, and marijuana in his prison cell.
The court further found, as it had before, that defendant was ineligible to be resentenced
under the Act because he was serving a life term when he committed the section 4501
offenses.
IV. ANALYSIS
On several grounds, defendant challenges the court’s finding that he was ineligible
to be resentenced under the Act and the court’s additional finding that he was unsuitable
for resentencing because he posed “an unreasonable risk of danger to public safety” if
resentenced under the Act.2 It is unnecessary to address defendant’s several claims of
error because any errors in the court’s reasons for denying his petition for resentencing
were necessarily harmless. (People v. Watson (1956) 46 Cal.2d. 818, 836.)
As the People point out, defendant was statutorily ineligible to be resentenced
under the Act, simply because the section 4501 conviction for which he was serving a life
term under the former Three Strikes law was a serious felony conviction. (§ 1192.7,
2 Defendant claims the trial court (1) misconstrued section 1170.126 in finding he was ineligible for resentencing because he was serving a life sentence when he committed his current offenses in 2007, (2) erroneously shifted the burden to him to show he was eligible for resentencing under the Act, (3) applied an incorrect legal standard in finding he posed “an unreasonable risk of danger to public safety” if resentenced under the Act, and should have applied the same standard that applies under Proposition 47, and (4) as applied, the Act denied him equal protection of the laws because he did not receive the benefit of a lower sentence based solely on the date he was sentenced.
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subd. (c)(12).) A defendant is eligible to be resentenced under the Act only if the
defendant is serving a life term “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).) Indeed, a defendant is
statutorily ineligible even to file a petition to be resentenced under the Act, if the
defendant is serving a life term for a serious or violent felony conviction. (§ 1170.126,
subd. (b).)3
An assault by an inmate on the person of another, by means of force likely to
produce great bodily injury, and while the inmate is serving a state prison sentence, is a
serious felony if the inmate is serving a life sentence when he or she commits the assault.
(§ 1192.7, subd. (c)(12) [listing as a serious felony, for purposes of the Three Strikes law,
“assault by a life prisoner on a noninmate” (italics added)].) Defendant was serving a life
term for his 1996 Orange County conviction for violating section 245, subdivision (a)(1),
when he committed the two section 4501 offenses against the two correctional officers in
2007.
3 Section 1170.126, subdivision (b) states: “Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, 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, may file a petition for a recall of sentence, within two years after the effective date of the [Act] or at a later date upon a showing of good cause, before the trial court that entered the judgment of conviction in his or her case, to request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amended by the [Act].”
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Defendant claims his section 4501 convictions were not serious felonies because
they were not section 4500 convictions. We disagree. Nothing in sections 4500 or 45014
indicates that a violation of section 4501 by an inmate who is serving a life sentence, is
not a serious felony. In plain language, section 1192.7, subdivision (c)(12), lists “an
assault by a life prisoner on a noninmate” as a serious felony. Though serving a life
sentence and malice aforethought are not necessary elements of a section 4501 violation,
and are necessary elements of a section 4500 violation, that does not mean that an inmate
who violates section 4501, while serving a life sentence, does not commit a serious
felony. Simply put, section 1192.7, subdivision (c)(12) does not specify that the “assault
by a life prisoner on a noninmate” must be a violation of section 4500 and involve malice
aforethought. Plainly, the wording of the statute encompasses violations of section 4501
by inmates serving life sentences.
V. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
4 Section 4500 provides: “Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole. . . .” (Italics added.) In contrast, section 4501 provides: “(b) Except as provided in Section 4500, every person confined in a state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony . . . .”
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KING J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was statutorily ineligible for resentencing under the Three Strikes Reform Act because his underlying conviction for assault by a life prisoner was a serious felony.
Issues
Whether the defendant was eligible for resentencing under the Three Strikes Reform Act of 2012.
Whether an assault by a life prisoner under Penal Code section 4501 constitutes a serious felony under Penal Code section 1192.7, subdivision (c)(12).
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Plainly, the wording of the statute encompasses violations of section 4501 by inmates serving life sentences.”