People v. Zapata CA4/3

Filed 6/20/22 P. v. Zapata CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060432

v. (Super. Ct. No. 05WF0647)

JESUS DAMIAN ZAPATA, OPI NION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steve Oetting, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent. * * *

The Three Strikes Reform Act of 2012 (the Act) created a resentencing procedure for inmates serving an indeterminate third-strike sentence, where the third 1 strike was not a serious or violent felony. (Penal Code, § 1170.126.) Section 1170.126, subdivision (b), provides a two-year window from the effective date of the statute to file a petition for resentencing. That period expired November 7, 2014. But it also provides that a petition may be filed “at a later date upon a showing of good cause . . . .” In 2012, Jesus Damian Zapata was convicted of a single count of false impersonation. (§ 529, subd. (a)(3).) In short, he was pulled over for not wearing a seat belt and claimed to be his brother, who owned the car. Normally, this is a wobbler — i.e. a crime punishable either as a misdemeanor or a felony, in the latter case carrying a punishment of 16 months, 2 years, or 3 years in prison. (§ 529, subd. (b).) However, because defendant had prior strikes, he was sentenced to 25 years to life in prison. On direct appeal from his conviction, we affirmed the judgment but remanded for the court to resentence defendant consistent with the Act. (People v. Zapata, G047277, Sept. 20, 2013 [nonpub. opn.].) Our decision was appealed to the California Supreme Court, who granted the petition and held the matter. In People v. Conley (2016) 63 Cal.4th 646, our high court held that a defendant is not entitled to automatic resentencing under the Act, but instead must file a petition pursuant to section 1170.126. (Id. at pp. 661-662.) The matter was remanded to us, and, in 2017, we remanded to the trial court with directions to accept a section 1170.126 petition within one year of the opinion becoming final. (People v. Zapata, G047277, Mar. 20, 2017 [nonpub. opn.] (Zapata II).) Defendant did not, however, file a petition within that year. Instead, he filed his petition in April 2021. The court summarily denied the petition without holding a hearing, describing the petition as “informal, ex parte communication on which the