People v. Hamilton CA5

Filed 12/28/15 P. v. Hamilton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069272 Plaintiff and Respondent, (Super. Ct. No. SC061057A) v.

LIONEL HAMILTON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Kane, Acting P.J., Detjen, J. and Smith, J.

-ooOoo- INTRODUCTION The Three Strikes Reform Act of 2012 (Proposition 36) permits third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies to petition for resentencing. (Pen. Code,1 § 1170.126 et seq.) If a petitioning offender satisfies the statute’s eligibility criteria, they are resentenced as a second strike offender “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Following the enactment of Proposition 36, defendant filed a petition for resentencing. After a hearing on the matter, the superior court found defendant posed an unreasonable risk to public safety, and denied the petition. On appeal, defendant contends (1) the language of Proposition 36 creates a presumption in favor of resentencing, (2) the superior court abused its discretion by denying defendant’s petition for resentencing, and (3) the definition of “unreasonable risk of danger to public safety” included in Safe Neighborhoods and Schools Act applies to Proposition 36. We affirm. FACTS On August 10, 1994, defendant was arrested after selling .25 grams of rock cocaine to a confidential informant. Following his arrest, a jury convicted defendant of selling cocaine base (Health & Saf. Code, § 11352) and possessing cocaine base (Health & Saf. Code, § 11351.5). At sentencing, the trial court found defendant to have two prior strikes for armed robbery and sentenced him as a third-strike offender to a term of 25 years to life in prison. On January 10, 2013, defendant filed a petition for recall of sentence pursuant to Proposition 36. At the hearing on defendant’s petition, the People did not dispute defendant’s statutory eligibility to be resentenced, but argued his release would pose an