People v. Poor CA3

Filed 8/21/15 P. v. Poor CA3 NOT TO BE PUBLISHED/ California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C074830

Plaintiff and Respondent, (Super. Ct. No. CM009321)

v.

RODNEY QUINCY POOR,

Defendant and Appellant.

Defendant Rodney Quincy Poor appeals from the trial court’s orders denying his petition for resentencing pursuant to Penal Code section 1170.126 (unless otherwise stated, statutory references that follow are to the Penal Code) based on the court’s finding that resentencing would pose an unreasonable risk of danger to public safety. He contends he was deprived of his right to have the petition heard by the judge who initially sentenced him. In a supplemental brief, he contends that the definition of danger to public safety found in the resentencing provision of the recently enacted Proposition 47,

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section 1170.18, applies to the danger to public safety finding under section 1170.126. We affirm the orders.

FACTS AND PROCEEDINGS

Defendant was caught with evidence showing that he was manufacturing methamphetamine in his trailer. A jury later convicted him of manufacturing methamphetamine. (Health & Saf. Code, § 11379.6.) The trial court found four strike allegations to be true and sentenced him to 25 years to life in state prison. We affirmed his conviction in January 1999. Defendant filed a petition for recall of sentence pursuant to section 1170.126 in November 2012. He was appointed counsel in December 2012. At defendant’s first appearance in court on May 23, 2013, the prosecutor asked whether the court would be hearing defendant’s petition. The court, Judge Lucena, believed so. Defense counsel said defendant was originally sentenced by Judge Patrick. The court replied, “Yes, Judge Patrick. He does handle assigned cases from time to time in this court.” The prosecutor added, “I have another one of these that he’s intending to handle himself.” Defense counsel told the court, “I don’t mind putting this on in a week such that that can be explored through the administrative avenues.” The court continued the matter to May 30, 2013, informing the parties, “I’ll confer with the presiding judge as to whether he will be having the sentencing judge hear this matter.” On May 30, 2013, Judge Lucena informed the parties that she would conduct the hearing and rule on the petition because Judge Patrick had retired. She then moved on to other matters with the parties. Following a contested hearing, the trial court denied defendant’s petition after finding that resentencing him posed an unreasonable risk of danger to public safety.