People v. Ramirez CA5

Filed 6/17/16 P. v. Ramirez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070736 Plaintiff and Respondent, (Super. Ct. No. SC057756A) v.

TRINIDAD GARCIA RAMIREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. Rebecca P. Jones, 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, Daniel B. Bernstein and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Trinidad Garcia Ramirez contends the trial court erred in denying his petition for resentencing under Proposition 36, the Three Strikes Reform Act of 2012 1 (Pen. Code, § 1170.126). We reverse and remand for further proceedings. PROCEDURAL SUMMARY On June 24 1994, defendant was convicted by jury trial of felony driving under the influence (Veh. Code, § 23152). The jury found true allegations that he had suffered two prior convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Those two prior strike convictions were assault with intent to commit rape (§ 220) on August 4, 1969, and robbery (§ 211) on October 29, 1985. The trial court sentenced him to 25 years to life in prison. About 20 years later, on October 7, 2014, defendant filed a petition for resentencing pursuant to Proposition 36 (§ 1170.126). He listed his two prior strike convictions, including his conviction for assault with the intent to commit rape. In its opposing papers, the prosecution argued:

“The defense will likely argue that the People will have to prove force or fear in addition to the conviction. However, this is not true because the elements for assault with intent to commit rape already involve willfully applying force to a person. (See CALCRIM 890.) Moreover, the elements for rape include force or fear. (See CALCRIM 1000.) By definition, rape is having non-consensual intercourse with another person by means of force or fear. An assault to commit rape could not be committed without those features. If those features were lacking, it would not be a rape. Thus, the conviction alone is sufficient to prove that force and/or fear occurred in the case. Therefore, since the petitioner was convicted of this sexually violent offense, he is not eligible for resentencing pursuant to Penal Code section 1170.126.” On December 19, 2014, at the hearing on the motion, the following occurred: