People v. Guevara CA2/6

Filed 4/7/16 P. v. Guevara CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262954 (Super. Ct. No. 1183843) Plaintiff and Respondent, (Santa Barbara County)

v.

EDGARDO GUEVARA,

Defendant and Appellant.

Edgardo Guevara appeals an order denying his petition to recall his third strike sentence pursuant to Proposition 36, the Three Strikes Reform Act of 2012 ("Act"). (Pen. Code, § 1170.126.)1 Guevara is serving a sentence of 28 years to life in prison following his conviction by jury of corporal injury to the mother of his child. (§ 273.5.) He contends the trial court abused its discretion when it determined that, if resentenced, he would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) We affirm. BACKGROUND Guevara hit his girlfriend, Maria D., in the face with a closed fist while she was holding their infant. He broke Maria D.’s nose and knocked her unconscious. She

1 All statutory references are to the Penal Code.

fell to the pavement and the infant landed on top of her. (People v. Guevara (Sept. 13, 2010, No. B218153) [nonpub. opn.].) In 2009, a jury convicted Guevara of felony corporal injury to the mother of his child (§ 273.5) and misdemeanor child endangerment (§ 273a, subd. (b)). Guevara admitted he had prior convictions for robbery in 1992 and for possessing a sawed-off shotgun for the benefit of a street gang in 1999. (§§ 211, 186.22, subd. (b), former § 12020.) The trial court sentenced Guevara to 28 years to life in state prison pursuant to the three strikes law. The court refused to strike a prior strike conviction because “[Maria D.] was unconscious. She could have been killed. [Guevara] left her there, took the child. The child could have been killed." It said that Guevara has “not demonstrated a course of responsible conduct at any real period of his life, other than a couple of years." (People v. Guevara, supra, B218153.) We affirmed. In 2013, Guevara petitioned the trial court to resentence him pursuant to the Act. The court denied the petition after an evidentiary hearing. It concluded that resentencing Guevara would create an unreasonable risk of danger to the public. DISCUSSION Guevara argues he is not dangerous because he acted violently only once in his adult life, he will remain in custody for several years if he is resentenced, and he is subject to deportation when released. The trial court did not abuse its discretion when it determined that Guevara poses an unreasonable risk of danger to the public. Under the three strikes law as it existed before Proposition 36, a defendant convicted of two prior serious or violent felonies was subject to a minimum sentence of 25 years to life upon conviction of any third felony. Proposition 36 reduces punishment for certain offenders whose current convictions are not serious or violent. Prisoners who are currently serving an indeterminate sentence for a third felony conviction, which was not a serious or violent felony, may seek resentencing as a second strike offender to a determinate term. (§ 1170.126.)