People v. Burns CA5

Filed 9/2/15 P. v. Burns CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F069147 Plaintiff and Respondent, (Super. Ct. No. 240912) v.

MONROE WALTER BURNS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge. Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Peter H. Smith and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) created a postconviction release proceeding for third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies. If such an inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he or she will be resentenced as a second strike offender unless the court determines such resentencing would pose an unreasonable risk of danger to public safety.1 (§ 1170.126, subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.) After the Act went into effect, Monroe Walter Burns (defendant), an inmate serving two concurrent indeterminate terms of 25 years to life under the three strikes law, moved to have his sentence recalled and for resentencing under the Act. The trial court determined defendant was ineligible for resentencing and denied the petition.2 We hold defendant was ineligible for resentencing with respect to his conviction for assault with a deadly weapon, but was eligible for resentencing with respect to his conviction for petty theft with a prior conviction. Accordingly, we affirm in part and reverse in part, and remand the matter for further proceedings. FACTS AND PROCEDURAL HISTORY On August 8, 2000, a jury convicted defendant of assault with a deadly weapon (§ 245, subd. (a)(1)) and petty theft with a prior theft-related conviction (§§ 484, subd. (a), 666). He was found to have been previously convicted of robbery (§ 211) and kidnapping (§ 207), both of which constituted serious felonies under the three strikes law