People v. Garner

Filed 2/16/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C079865

Plaintiff and Respondent, (Super. Ct. No. 62094750)

v.

DONALD KEITH GARNER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Placer County, Colleen Nichols, Judge. Affirmed as modified.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Ivan P. Marrs, Deputy Attorney General, for Plaintiff and Respondent.

1

Defendant Donald Keith Garner, who had received a third strike sentence based on the commission of knowing receipt of stolen property (Pen. Code, § 496, subd. (a)),1 unsuccessfully filed a Proposition 47 (the Safe Neighborhoods and Schools Act of 2014) petition to reduce his conviction to a misdemeanor, a petition denied after a hearing upon proof the property was worth over $950. However, the People advised the trial court that defendant was eligible for resentencing under Proposition 36 (the Three Strikes Reform Act of 2012), and conceded defendant posed no risk of danger to public safety, and therefore that he was entitled to resentencing under that act. The trial court granted defendant relief under Proposition 36, but resentenced him on all charges that had been pending against him including prior prison term enhancements (§ 667.5, subd. (b)), which purportedly had been stricken during the original sentencing proceeding in light of the third strike life sentence. On appeal, defendant contends the trial court, in recalculating his sentence, was limited to resentencing on the base offense, and could not impose any sentence for the previously stricken prison term enhancements. As we will explain, we disagree and affirm. We do, however, agree with both parties that defendant is entitled to custody credits earned in prison prior to resentencing. We will modify the judgment to award defendant the credits the parties agree he has earned. PROCEDURAL BACKGROUND As recounted in our prior unpublished opinion, “Pursuant to a plea bargain, defendant . . . pleaded no contest to a charge of receiving stolen property ([§] 496, subd. (a)) and admitted three prior prison terms and four prior „strike‟ convictions (under the three strikes law), in exchange for dismissal of the remaining charges (commercial burglary, petty theft with priors, and marijuana possession).” (People v. Garner (Oct. 4,