People v. Tuthill CA4/3

Filed 10/13/15 P. v. Tuthill CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, G050469

v. (Super. Ct. No. 96WF2856)

LESTER CLARENCE TUTHILL, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Richard Luesebrink, Judge. (Retired judge of the Orange County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed. Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Warren J. Williams and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Lester Clarence Tuthill appeals from an order dismissing, in its entirety, his petition for recall of his two indeterminate life sentences under Penal Code section 1170.126 (all further statutory references are to this code unless otherwise designated), which was enacted as part of the Three Strikes Reform Act. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, pp. 109-110.) Defendant argues the trial court erred because he remained eligible for resentencing on one of the two consecutive indeterminate life sentences imposed, even though he was ineligible for resentencing on the other. The Supreme Court has recently ruled this interpretation of section 1170.126 is correct. (People v. Johnson (2015) 61 Cal.4th 674.) Because defendant’s counsel did not make that split-eligibility argument in the trial court, he asks us to consider the point for the first time on appeal. He also argues, in the alternative, he is entitled to relief because his counsel was ineffective in failing to raise the issue below. He has made the ineffective assistance of counsel claim both in this appeal and by way of a separate petition for writ of habeas corpus. As defendant’s argument raises a pure issue of law on a clear record, we exercise our discretion to consider the point for the first time on appeal. And in light of the controlling Supreme Court authority, we reverse the order and remand the case to the trial court with directions to find defendant eligible for resentencing on his conviction for escape from the lawful custody of a peace officer without force (§ 4532), and to hold a hearing to determine whether “resentencing the petitioner [on that conviction] would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)