People v. Fullbright CA2/5

Filed 10/2/15 P. v. Fullbright CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B260389

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA028554) v.

DEREK FULLBRIGHT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of the County of Los Angeles, William C. Ryan, Judge. Reversed and remanded. California Appellate Project, Jonathan B. Steiner, Executive Director, Jill Ishida, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Derek Todd Fullbright (appellant), was convicted in 1998 of dissuading a witness (Pen. Code,1 § section 136.1, subd. (c)(1), Count I), criminal threats (§ 422, Count II), and battery on a peace officer (§ 243, subd. (c), Count III). The allegation that appellant suffered two prior strike convictions was found to be true (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d) (“Three Strikes” law). The trial court sentenced appellant to a total term of 50 years to life in prison, comprised of consecutive terms of 25-years-to-life on Counts I and III, pursuant to the Three Strikes law. The trial court imposed and stayed a term of 25-years-to-life on Count II, the criminal threats count. Appellant filed a petition under section 1170.126 (Proposition 36) for recall of sentence in the trial court asking it to resentence him on Count III—the battery of a peace officer count. The trial court denied the motion on the ground that appellant was ineligible for relief because one of his current convictions was listed as a serious felony. (§ 1192.7, subd. (c)(37).) On appeal, appellant contends that he is eligible for resentencing on Counts I and III. We hold that because appellant’s dissuading a witness conviction was listed as a serious felony on the date of the enactment of Proposition 36, appellant is ineligible for relief on Count I. We remand the matter to the trial court to make a discretionary determination as to whether appellant poses an unreasonable risk of danger to public safety under section 1170.126, subdivision (f) as to the battery of a peace officer conviction—Count III, which is not listed in section 667.5, subdivision (c) or section 1192.7, subdivision (c) as a serious or violent felony.