People v. Young CA1/2

Filed 1/26/16 P. v. Young CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A142000 v. GREGORY YOUNG, (Alameda County Super. Ct. No. 139666) Defendant and Appellant.

Defendant Gregory Young appeals from the minute order denying his petition for reduction of his Three Strike sentence under Penal Code section 1170.126.1 In 2001, defendant was convicted of assault with a firearm (§ 245, subd. (a)(2)) and being a past-convicted felon in possession of a firearm (former § 12021, subd. (a), now § 29800, subd. (a).) Because three of defendant’s five felony convictions qualified as serious or violent, he was sentenced under the Three Strikes statutes (§§ 667, 1170.12) to state prison for a term of 25 years to life. In 2002, on direct appeal, this court reversed the assault conviction, but affirmed the possession count. (People v. Young (Oct. 1, 2002, A094322) [nonpub. opn.].) In 2012, the voters adopted Proposition 36, the Three Strikes Reform Act, thereby amending the two Three Strike statutes to authorize terms of 25 years to life only where the “third strike” conviction is a serious or violent felony. The initiative also added section 1170.126, which establishes the procedure for persons already sentenced under

1 Statutory references are to this Code.

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the Three Strikes law to apply for a reduction of a term of 25 years to life. It also specifies how the court is to review that application. Thus: The inmate must first “file a petition for a recall of sentence, . . . to request resentencing.” (§ 1170.126, subd. (b).) Subdivision (e) of section 1170.126 establishes the criteria to determine whether “[a]n inmate is eligible for resentencing.” “Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced [as a second strike offender with a doubled term] pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” Defendant’s petition for resentencing under section 1170.126 was opposed by the Alameda County District Attorney on the ground that “defendant is ineligible for resentencing consideration under section 1170.126 because during the commission of the offense he was armed with a firearm.” The supposed ineligibility was compelled by the language of section 1170.126 excluding from resentencing a defendant whose “current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive of subparagraph (C) of Section 667 or . . . subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e)(2).) The incorporated by reference subdivisions thus preclude relief if “[d]uring the commission of the current offense, the defendant used a firearm, [or] was armed with a firearm.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) At the hearing held in May 2014, the brief argument focused on the issue of whether defendant was eligible for resentencing. Defendant’s counsel conceded: “I understand in light of the most recent cases that address this issue, People v. Blakely [(2014) 225 Cal.App.4th 1042], People v. White [(2014) 223 Cal.App.4th 512], and People v. Osuna [(2014) 225 Cal.App.4th 1020], . . . the court is bound by those appellate court decisions. So all I’ll say is, to protect Mr. Young’s rights going forward, I do think