Schinkel v. Superior Court CA3

Filed 1/22/16 Schinkel v. Superior Court CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

LARRY STEVEN SCHINKEL, JR., C073404

Petitioner, (Super. Ct. No. 99F03948)

v. OPINION ON TRANSFER THE SUPERIOR COURT OF SACRAMENTO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

Petitioner Larry Steven Schinkel, Jr. (defendant), who is serving an indeterminate life term under the “Three Strikes” law, filed a petition for resentencing under the Three Strikes Reform Act of 2012, passed by the voters as Proposition 36. The trial court denied the petition without a hearing because defendant’s current conviction for solicitation of murder necessarily included an intent to cause great bodily injury, which is

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a disqualifying factor for resentencing under the Three Strikes Reform Act of 2012. Based on its determination that defendant had a current conviction for a serious or violent felony (the solicitation of murder count), the trial court also found that defendant was not eligible for resentencing on other counts. Defendant appealed. After we filed an opinion finding no merit in defendant’s appellate contentions, the California Supreme Court granted review and eventually transferred the case back to this court for reconsideration in light of People v. Johnson (2015) 61 Cal.4th 674 (Johnson). We vacated our decision, and neither party filed a supplemental brief after the transfer. On reconsideration, we continue to hold that: (1) the trial court properly determined that defendant is ineligible for resentencing on the solicitation of murder count, under the Three Strikes Reform Act of 2012, because his conviction for solicitation of murder necessarily included the intent to cause great bodily injury and (2) defendant is not entitled to a jury trial on whether he is eligible for resentencing. However, in light of Johnson, (3) defendant may be eligible for resentencing on other current convictions, which must be determined on a count-by-count basis. We therefore reverse only the part of the trial court’s order denying resentencing on the current convictions other than for solicitation of murder and remand for the trial court to determine whether defendant is eligible for resentencing on those counts. BACKGROUND Defendant, who had prior strike convictions (specifically, he had six prior burglary convictions), engaged in sexual intercourse with a minor. After he was arrested on the charges related to the minor, he solicited another inmate to have the minor killed so that she could not testify against him. Convicted of four counts of sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c)) and solicitation of murder (Pen. Code, § 653f, subd. (b)), defendant was eventually sentenced under the Three Strikes law to an indeterminate term of 25 years to life for solicitation of murder with two consecutive 25-year-to-life