California Court of Appeal Dec 9, 2015 No. D064935Unpublished
Filed 12/9/15 P. v. Bell CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064935
Plaintiff and Respondent,
v. (Super. Ct. No. SCD127984)
EDDIE BELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Warren Williams and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and
Respondent.
Eddie Bell appeals from an order denying his petition for recall of his sentence
pursuant to Penal Code section 1170.126. (Undesignated statutory references are to this
code.) The trial court denied Bell's petition on the ground that Bell's "current offense" of
making a criminal threat is a serious felony, rendering Bell ineligible for recall of his
sentence. Bell contends the trial court erred in denying his petition because: (1) making a
criminal threat was not a serious felony at the time he committed the crime; and (2)
classifying his crime as a serious felony violates ex post fact principles. Based on our
high court's recent decision in People v. Johnson (2015) 61 Cal.4th 674 (Johnson), we
reject Bell's first argument. We also reject his ex post facto argument. Accordingly, we
affirm the trial court's order.
PROCEDURAL HISTORY
In 1997, a jury convicted Bell of making a criminal threat and misdemeanor
crimes of false imprisonment and battery. The court found true that Bell had at least two
prior strike convictions and four prison priors. The trial court sentenced him to an
indeterminate term of 25 years to life in prison for the threat conviction and a consecutive
term of four years for the prison prior, resulting in a total sentence of 29 years to life.
In 2013, Bell petitioned for recall of his sentence under section 1170.126, which
was part of the Three Strikes Reform Act of 2012 (Proposition 36 or the Act). The trial
court denied the petition, finding Bell was ineligible for resentencing under the Act
because making a criminal threat is a serious felony.
DISCUSSION
I. Serious Felony
Bell argues the trial court erred in denying his petition because making a criminal
threat was not classified as a serious felony when he committed his crime in 1997. We
reject this argument.
2
Preliminarily, we note that the parties dispute whether the denial of a petition to
recall a sentence under section 1170.126 is an appealable order. This issue was recently
resolved in Teal v. Superior Court (2014) 60 Cal.4th 595, 601, which concluded it is
appealable.
"The Act amended the Three Strikes law with respect to defendants whose current
conviction is for a felony that is neither serious nor violent. In that circumstance, unless
an exception applies, the defendant is to receive a second-strike sentence of twice the
term otherwise provided for the current felony, pursuant to the provisions that apply
when a defendant has one prior conviction for a serious or violent felony." (Johnson,
supra, 61 Cal.4th at pp. 681-682.) In addition, "the Act provides a procedure by which
some prisoners already serving third-strike sentences may seek resentencing in
accordance with the new sentencing rules. [Citation.] 'An inmate is eligible for
resentencing if . . . [¶] . . . [t]he inmate is serving an indeterminate term of life
imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or
felonies that are not defined as serious and/or violent . . . .' " (Id. at p. 682.)
Based on "the present verb tense in describing the character of the current offense,
the parallel structure of the sentencing and resentencing provisions, and the ballot
arguments in support of Proposition 36" our high court concluded that "the classification
of an offense as serious or violent for purposes of resentencing is based on the law as of
November 7, 2012, the effective date of Proposition 36." (Johnson, supra, 61 Cal.4th at
p. 683.)
3
Here, Bell's offense of making a criminal threat was not a serious felony at the
time Bell committed his offense, but was added to the list of serious felonies by
Proposition 21, effective March 8, 2000. (Manduley v. Superior Court (2002) 27 Cal.4th
537, 577; § 1192.7, subd. (c)(38).) Because making a criminal threat was classified as a
serious felony on the Act's effective date, Bell was ineligible for recall of his sentence
under section 1170.126, and the trial court did not err in denying his petition.
II. Alleged Ex Post Facto Violation
Bell argues the trial court's denial of his petition to recall his sentence violated his
constitutional right against ex post facto laws.
"[T]he ban on ex post facto legislation is narrow in scope. Recently, the United
States Supreme Court restructured its understanding of the ex post facto clause by
rejecting certain expansive formulations that had developed over the years, and by
returning the clause to its original meaning at the time the Constitution was framed.
[Citations.] [¶] As a result, the ex post facto clause prohibits only those laws which
'retroactively alter the definition of crimes or increase the punishment for criminal acts.'
[Citations.] The basic purpose of the clause is to ensure fair warning of the consequences
of violating penal statutes, and to reduce the potential for vindictive legislation.
[Citation.] The federal and state ex post facto clauses are interpreted identically.
[Citation.]" (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170.)
Here, at the time the Act became effective, Bell had already been sentenced for his
crime. The Act did not increase that punishment or make it greater than when it was
committed. "A finding an inmate is not eligible for resentencing under section 1170.126
4
does not increase or aggravate that individual's sentence; rather, it leaves him or her
subject to the sentence originally imposed." (People v. Osuna (2014) 225 Cal.App.4th
1020, 1040.) Moreover, the Act provides for a decreased punishment for certain eligible
defendants. Thus, the trial court's denial of Bell's petition to recall his sentence does not
raise ex post facto concerns.
DISPOSITION
The order is affirmed.
McINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is ineligible for resentencing under the Three Strikes Reform Act if their current offense was classified as a serious felony as of the Act's effective date, regardless of its classification at the time of the offense. The court further held that denying such a petition does not violate ex post facto principles because it does not increase the original sentence.
Issues
Whether a defendant is eligible for resentencing under Penal Code section 1170.126 if their offense was not a serious felony at the time of commission but was classified as one by the Act's effective date.
Whether the denial of a petition for recall of sentence under the Three Strikes Reform Act violates the ex post facto clause.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the classification of an offense as serious or violent for purposes of resentencing is based on the law as of November 7, 2012, the effective date of Proposition 36.”