People v. Herrera CA5

Filed 4/20/16 P. v. Herrera 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070531 Plaintiff and Respondent, (Super. Ct. No. 95CM7163) v.

CARLOS HERRERA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Brandie Devall, 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, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Carlos Herrera petitioned the trial court to be resentenced pursuant to the Three Strikes Reform Act of 2012 (the Act). The trial court denied the petition finding Herrera was ineligible for resentencing under the terms of Penal Code section 1170.126.1 We affirm the trial court’s order. FACTUAL AND PROCEDURAL SUMMARY In 1994, Herrera was an inmate in Corcoran State Prison serving a 13-year sentence for two counts of voluntary manslaughter. In October of that year, Herrera and his cell were searched. During the search, correctional officers observed a dark object in Herrera’s nose. The object was removed in the prison hospital and found to be a razor blade encased in a piece of paper. Herrera was tried and convicted of violating section 4502, subdivision (a), possession of a sharp instrument by a prisoner. He was sentenced to a third strike term of 25 years to life.2 In 2014, Herrera filed a petition seeking resentencing pursuant to section 1170.126. This petition focused primarily on Herrera’s numerous positive accomplishments while incarcerated, but failed to focus on the issue in this case, whether Herrera was eligible for resentencing under the terms of the statute. The trial court determined Herrera was ineligible for resentencing because he possessed a deadly weapon when he committed the act that led to his conviction for violating section 4502. DISCUSSION Section 1170.126, enacted as part of the Act, defines those eligible for resentencing as inmates serving an indeterminate third strike sentence and: (1) not serving a sentence for a crime that is listed as a serious or violent felony (§§ 667.5, subd. (c) & 1192.7, subd. (c));