Opinion
A145536
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. ALVIN SMART, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC042607A)
In 2006, Alvin Smart was sentenced to a prison term of 75 years to life on convictions of indecent exposure and presenting false identification. In 2014, he petitioned for resentencing under the Three Strikes Reform Act (Reform Act), which had been adopted by initiative in 2012. He now appeals from the denial of that petition. He argues that the trial court had authority to strike a prior rape conviction that rendered him ineligible for resentencing, and failed to exercise an informed discretion in failing to do so. We affirm.
STATEMENT OF THE CASE
In 1998, appellant was charged with three counts of indecent exposure (Pen. Code, § 314.1) and one count of falsely identifying himself to authorities (§ 148.9, subd. (a)), with allegations that he had suffered three prior strike convictions (§ 1170.12) and served two prior prison terms (§ 667.5, subd. (b)). One of the alleged priors was a 1992 conviction of forcible rape (§ 261, subd. (a)(2)).
Further statutory references will be to the Penal Code except as otherwise specified.
Appellant requests us to take judicial notice of the record in his prior appeal, A113111. Respondent opposes the request and, because we find it unnecessary to review the record of the prior appeal in order to decide the present one, we deny the request for judicial notice. However, on our own motion, we take judicial notice of this court's unpublished opinion on the prior appeal. (Evid. Code, § 452.)
Over the next several years, appellant was twice found incompetent to stand trial (§ 1367) and committed to the Department of Mental Health, on the first occasion placed at Atascadero State Hospital and on the second at Napa State Hospital. In 2003, he was found competent to stand trial, his insanity defense was bifurcated and a jury found him guilty as charged and found the prior conviction allegations true. After several continuances, in 2006, the jury in the sanity phase of the trial found he was sane when he committed the offenses. On February 24, 2006, the trial court refused a request to dismiss the prior strikes and sentenced appellant to a total prison term of 25 years to life. This court affirmed the judgment, as well as the denial of a pro. per. petition for writ of habeas corpus (A119279) appellant had filed prior to the commencement of trial. The California Supreme Court denied petitions for review of both the appeal and the writ.
The writ petition sought dismissal of the charges and institution of civil commitment proceedings.
In 2012, the California electorate adopted Proposition 36, the Reform Act, as part of which section 1170.126 was added to the Penal Code. Section 1170.126 provides for the resentencing of individuals serving three-strike indeterminate prison terms for offenses not defined as serious and/or violent felonies. (Prop. 36, § 6, approved Nov. 6, 2012, eff. Nov. 7, 2012.) In the specified circumstances, such individuals would instead receive two-strike sentences. (§§ 1170.126, subd. (b), (e); 1170.12, subd. (c)(2)(C).) As relevant here, individuals with prior convictions for certain offenses, including rape committed by "force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person. . . ." (Welf. & Inst. Code, § 6600, subd. (b)) are ineligible for resentencing. (§§ 1170.126, subd. (e)(3), 667, subd. (e)(2)(C)(iv)(I), section 1170.12, subd. (c)(2)(C)(iv)(I).)
On October 24, 2014, appellant filed a pro. per. petition for recall of sentence under the Reform Act. He alleged that his 1992 rape conviction did not "automatically" preclude eligibility for resentencing, apparently on the theory that the jury's finding that the prior conviction existed did not entail a finding that the rape was committed by force, violence or duress. The prosecutor opposed the petition, arguing that the rape conviction disqualified appellant from resentencing and, in the alternative, the court should exercise its discretion to deny resentencing. On December 9, 2014, the court appointed the private defender to represent appellant, designating Steven Chase, the attorney who had represented appellant at the 2006 trial. Counsel filed a memorandum of points and authorities conceding that the prior conviction was for a disqualifying felony but arguing that the court had discretion under section 1385 to dismiss the prior in the interest of justice, and urging it to do so because the three strikes sentence was imposed for an offense that consisted of misdemeanor conduct that was elevated to a felony only due to a prior conviction for the same conduct, and appellant had been incarcerated since 1997, was in poor health and had been an exemplary inmate. After the prosecution opposed the section 1385 argument, defense counsel filed a supplemental memorandum arguing that appellant's 75-year-to-life sentence constituted cruel and unusual punishment.
At a hearing on February 20, 2015, defense counsel addressed the background of the case, stating that during the periods when appellant was found incompetent to stand trial, he appeared to counsel to be "floridly psychotic"; that the evidence of the present offenses did not support the convictions; that the underlying conduct would have been a misdemeanor if not for appellant's prior convictions; and that appellant was 74 years old, suffered from Parkinson's Disease, chronic obstructive pulmonary disease and other conditions, wrote country music, had publishing companies interested in his work and was the leader of a band at the prison church. Appellant addressed the court personally and mentioned that the judge had been a deputy district attorney in this case in March 1998, at which point the judge recused himself and reassigned the case.
The facts of the underlying offenses are not relevant to the issue on appeal and are described in our opinion on the prior appeal. In brief, in the first incident of indecent exposure, a woman observed a naked man masturbating by her car in the underground garage of her condominium complex; he approached her window, continuing to masturbate, as she drove away. In the second incident, approximately 10 months later, a woman observed a man masturbating outside her ground floor apartment at 2:00 a.m.; he motioned for her to come outside, then fled after she called 911. In the third incident, about 7:30 a.m. on the same day, the woman from the first incident saw the same man, nude and crouched down by a car in the garage, a red scarf covering his face. The man repeatedly apologized, said he was going to the bathroom and asked to be left alone, but the woman did not see him relieving himself and saw no urine or feces after he walked away. In all three incidents, the witnesses stated that the man's genital area was "completely shaved" and his penis was "shiny," as though lubricated; in two, the man's face was reported to have been covered by a red scarf and in the third he had "something like a shirt" covering the top of his head. After the third, incident, he was observed running into a field. Police found appellant in the field, lying under brush and leaves as though trying to avoid detection. His hands were greasy and looked shiny, and a jar of Vaseline and a red T-shirt were found nearby. The woman in the second incident identified him as the man who had been outside her window, recognizing his shoes, pants and the T-shirt he was wearing.
In a handwritten letter stamped "received" by the court on March 12, 2015, appellant asked to have his appointed attorney removed from his case, complaining about the attorney's competence and relationship with the originally assigned judge. The letter was treated as a Marsden motion and set for hearing. On the date of the hearing, appellant filed written motions for substitution of counsel and to proceed in pro. per.; the former was denied and the latter granted. On May 1, 2015, however, appellant requested appointed counsel on the ground that his poor health prevented him from representing himself. The court appointed the Private Defender and appellant was thereafter represented by James Thompson. Counsel filed supplemental points and authorities arguing that appellant's sentence violated the cruel and unusual punishment prohibitions of the federal and state constitutions and the court had inherent authority under those provisions to correct it; that appellant's 1992 rape conviction was not disqualifying under section 1170.126 because the evidence did not establish it was for a "sexually violent offense" within the meaning of Welfare and Institutions Code section 6600, subdivision (b); and the court had authority to dismiss the prior under section 1385.
As indicated above, a rape conviction is disqualifying under section 1170.126, subdivision (e)(3), if it was committed "by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person" (§§ 1170.12, subd. (c)(2)(C)(iv), 667, subd. (e)(2)(C)(iv), Welf. & Inst., § 6600, subd. (b) [italics added]). The transcript of appellant's 1992 plea reflects that the offense was described as having been committed "by force, violence, duress, menace or fear," without further specification by the language italicized above.
After a hearing on June 19, 2015, the trial court found appellant ineligible for resentencing, further stating that while it "perhaps" made findings to allow appellant some relief, it declined to do so because it did not believe "the equities lie in his favor."
Defense counsel stated at the outset of the hearing that the court had discretion to dismiss the prior rape conviction under section 1385, but the only argument actually discussed at the hearing was the claim that the transcript of appellant's plea did not establish the conviction was for a "sexually violent offense" as required for it to be disqualifying. After defense counsel urged the court to look to the record of conviction to determine whether the conviction of section 261, subdivision (a)(2), was a "sexually violent offense" as defined by Welfare and Institutions Code section 6600, subdivision (b), the court stated, "You know in terms of the equities, I'm not prepared to go down that road. I'm not prepared. I'm gonna start with the question of eligibility and the way I read the statute and when we get down to Welfare and Institutions Code Section 6600 . . . to me it leaves no question that the defendant is not eligible and I need not go further. [¶] I know that the court could, perhaps, make some findings to somehow, you know, allow him some relief, but I'm not prepared to do that. I don't think the equities lie in his favor. So based on the evidence before me, I find that [appellant] is not eligible. There was a prior 261(a)(2) conviction and based on the record and the plea from that conviction, it fall[s] squarely within the criteria that would make him not eligible for sentencing."
Appellant filed a timely notice of appeal on June 26, 2015.
DISCUSSION
Prior to the adoption of Proposition 36, a defendant who had previously been convicted of two or more serious or violent felonies was subject to an indeterminate sentence of 25 years to life upon conviction of any new felony. (People v. Chubbuck (2014) 231 Cal.App.4th 737, 740 (Chubbuck); People v. White (2014) 223 Cal.App.4th 512, 517 (White); People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285.) "The Reform Act prospectively changed the Three Strikes law by reserving indeterminate life sentences for cases where the new offense is also a serious or violent felony, unless the prosecution pleads and proves an enumerated disqualifying factor. In all other cases, a recidivist defendant will be sentenced as a second strike offender, rather than a third strike offender." (Chubbuck, at pp. 740-741; Kaulick, at p. 1286; People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 (Yearwood).)
"The Reform Act also created a ' "post-conviction release proceeding" ' whereby a Three Strikes prisoner who is serving an 'indeterminate life sentence' for a crime that was not a serious or violent felony—and who is not otherwise disqualified—may have his or her sentence recalled and be resentenced as a second strike offender, unless the court 'determines that resentencing . . . would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subds. (a), (f), (m); see Yearwood, supra, 213 Cal.App.4th at p. 168.)" (Chubbuck, supra, 231 Cal.App.4th at p. 741; White, supra, 223 Cal.App.4th at p. 517.)
Under section 1170.126, subdivision (e)(3), an inmate is not eligible for resentencing if he or she has a prior conviction for any offense appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv). As relevant here, the referenced offenses include a " 'sexually violent offense' as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§§ 1170.12, subdivision (c)(2)(C)(iv)(I); 667, subdivision (e)(2)(C)(iv)(I).) Welfare and Institutions Code section 6600, subdivision (b), defines " '[s]exually violent offense' " as meaning "the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person . . . : a felony violation of Section 261. . . ."
The provisions of section 667, subdivision (e)(2)(C)(iv), and section 1170.12, subdivision (c)(2)(C)(iv), are identical, the latter referring to the "Three Strikes" law adopted by initiative in 1994 (Proposition 184) and the former to the legislative version of the law (Stats. 1994, ch. 12, § 1 (AB 971)).
On its face, appellant's 1992 conviction renders him ineligible for resentencing under section 1170.126, as the conviction is for violation of section 261, subdivision (a)(2)—"an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." Appellant contends that the trial court had authority under section 1385 to strike this prior conviction in order to make him eligible for resentencing. Section 1385 provides that "[t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." "[T]he power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) Appellant argues that in a proceeding under section 1170.126, a disqualifying prior conviction must be pleaded and proved, and the allegation is therefore subject to the court's power to dismiss under section 1385.
Appellant ignores the many cases—including our own—that have rejected the premise of his argument, holding that there is no pleading and proof requirement for factors that disqualify a defendant from resentencing under the Reform Act. (People v. Thurston (2016) 244 Cal.App.4th 644, 656-658 (Thurston); Chubbuck, supra, 231 Cal.App.4th at p. 748; People v. Brimmer (2014) 230 Cal.App.4th 782, 805 (Brimmer); People v. Elder (2014) 227 Cal.App.4th 1308, 1314-1315 (Elder); People v. Osuna (2014) 225 Cal.App.4th 1020, 1038; People v. Blakely (2014) 225 Cal.App.4th 1042, 1058; White, supra, 223 Cal.App.4th at pp. 526-527.) He recognizes that his overall argument was squarely rejected in People v. Brown (2014) 230 Cal.App.4th 1502 (Brown), which held that trial courts do not have authority to dismiss prior convictions under section 1385 in order to make defendants eligible for resentencing under section 1170.126, but argues that Brown was wrongly decided.
As we explained in Thurston, supra, 244 Cal.App.4th 644, with respect to initial sentencing under the Reform Act, " 'there is a clear statutory pleading and proof requirement with respect to factors that disqualify a defendant with two or more prior strike convictions from sentencing as a second strike offender.' ([Osuna, supra,] 225 Cal.App.4th [at p.] 1033.) The Three Strikes law provides: 'If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a felony described in [the Three Strikes law], the defendant shall be sentenced [as if a second strike offender] unless the prosecution pleads and proves any of the following: [¶] . . . [¶] (iv) The defendant suffered a prior conviction [as defined in the Three Strikes law] for any of the following serious and/or violent felonies: [¶] (I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.' (§ 1170.12, subd. (c)(2)(C)(iv)(I), italics added; see § 667, subd. (e)(2)(C)(iv)(I).)" (Thurston, at p. 656, some italics omitted.)
" '[S]ection 1170.126 does not impose the same requirements in connection with the procedure for determining whether an inmate already sentenced as a third strike offender is eligible for resentencing as a second strike offender.' (Osuna, supra, 225 Cal.App.4th at p. 1033.) Section 1170.126, subdivision (e), provides: 'An inmate is eligible for resentencing if: . . . [¶] . . . [¶] (3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.' Clause (iv) of each of the referenced statutes, as indicated above, provides, 'The defendant suffered a prior conviction, as defined in [the Three Strikes law], for any of the following serious and/or violent felonies: [¶] (I) A "sexually violent offense" as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code.' (§ 1170.12, subd. (c)(2)(C)(iv); see § 667, subd. (e)(2)(C)(iv).) Section 1170.126, subdivision (e)(3), thus cross-references only 'the offenses appearing in' the specified clauses and 'not the text preceding them that specifies the procedural prerequisite of pleading and proof.' ([Elder, supra,] 227 Cal.App.4th [at p.] 1315, some italics omitted; see White, supra, 223 Cal.App.4th at pp. 526-527.)" (Thurston, supra, 244 Cal.App.4th at pp. 656-657.)
"The 'pleading and proof requirement plainly is a part of only the prospective part of the Reform Act, which governs the sentencing of a defendant with "two or more prior serious and/or violent felony convictions" who has suffered a third felony conviction; it is not a part of section 1170.126, the retrospective part of the Reform Act that governs a petition for resentencing brought by an inmate already serving a life sentence under the Three Strikes law.' (White, [supra, 223 Cal.App.4th] at p. 527; see Brimmer, [supra, 230 Cal.App.4th] at p. 802.) 'No pleading and proof language appears in the part of the [Reform] Act addressing relief to persons previously sentenced under the Three Strikes law. (§ 1170.126, subd. (e).) The retrospective relief under section 1170.126 is conditioned upon an eligible commitment offense, which "the [trial] court shall determine" on "receiving a petition for recall of sentence under this section." (§ 1170.126, subd. (f), italics added.)' [Citation.]" (Thurston, supra, 244 Cal.App.4th at p. 657.) "There is no provision for the People to plead or prove anything, the burden falls on the trial court to make the determination whether a defendant meets the prima facie criteria for recall of sentence." (People v. Guilford (2014) 228 Cal.App.4th 651, 657.)
To the extent appellant suggests that failure to imply a pleading and proof requirement into section 1170.126 would violate constitutional equal protection guarantees, Thurston also rejected this argument. (Thurston, supra, 244 Cal.App.4th at pp. 658-659.)
As appellant's section 1385 argument is constructed entirely upon his assumption that disqualifying prior convictions must be pleaded and proved by the prosecution, the failure of this premise is fatal. Moreover, as Brown explained, the argument is unavailing for other reasons.
As we have said, section 1385 gives the trial court power to dismiss an entire action or to "strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions." (Romero, supra, 13 Cal.4th at p. 504.) " 'Because the power is statutory, the Legislature may eliminate it,' " but a statute will not be interpreted as eliminating the power absent " 'clear legislative direction.' " (Id. at p. 518; People v. Williams (1981) 30 Cal.3d 470, 482 ["[s]ection 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent"].) An "express reference to section 1385 is not required," and the "clear expression of intent may be found either in the relevant statutory language or in the statute's legislative or initiative history." (People v. Fuentes (2016) 1 Cal.5th 218, 227.)
Appellant argues that section 1170.126 does not contain a clear direction that the court lacks power to dismiss a prior conviction under section 1385 in order to make a defendant eligible for resentencing and, in fact, demonstrates the opposition. He points to section 1170.12, subdivision (d)(2)— "[n]othing in this section shall be read to alter a court's authority under Section 1385"—and section 1170.126, subdivision (k)—"[n]othing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the defendant." Section 1170.12, subdivision (d), of course, pertains to original sentencing proceedings on a current offense, when the trial court is free to exercise its discretion under section 1385 absent clear legislative direction to the contrary. " '[I]t is well established that a court may exercise its power to strike under section 1385 "before, during or after trial," up to the time judgment is pronounced. [Citations.]' " (Brown, supra, 230 Cal.App.4th at p. 1511, quoting Romero, supra, 13 Cal.4th at p. 524, fn. 11.) Resentencing is different, as Brown, recognized, because "[a] trial court does not have general jurisdiction to resentence a criminal defendant after execution of sentence has begun." (Id. at p. 1511.) For this reason, the cases appellant discusses concerning the trial court's authority to dismiss prior convictions at original sentencing do not compel a conclusion that the same power exists with regard to determining eligibility for resentencing under section 1170.126.
Statutory grants of authority can create exceptions to the general rule that the trial court loses jurisdiction to modify a sentence once execution has begun. (See People v. Howard (1997) 16 Cal.4th 1081, 1089.) But section 1385 does not itself grant trial courts general jurisdiction to resentence a defendant who has begun to serve his or her sentence. (Brown, supra, 230 Cal.App.4th at p. 1511.) And, as Brown determined, section 1170.126 cannot reasonably be construed as conferring authority upon trial courts to use section 1385 as a means to resentence inmates who do not meet the eligibility requirements of the Reform Act. (Brown, at pp. 1511-1514.) "Section 1170.126 grants a trial court the power to determine an inmate's eligibility to be resentenced under the Reform Act only if the inmate satisfies the three criteria set out in subdivision (e) of the statute, as previously noted, and contains no provision authorizing a trial court to disregard the required criteria. (§ 1170.126, subd. (e).) Rather, the plain language of subdivision (e) clearly provides that an inmate must first satisfy each criteria set out in subdivision (e) of section 1170.126 before he or she can be resentenced under the Reform Act, and gives the trial court no discretion to depart from the three-step requirement. In other words, if the inmate does not satisfy one or more of the criteria, section 1170.126 grants the trial court no power to do anything but deny the petition for recall of sentence." (Brown, at pp. 1511-1512.) By contrast, section 1170.126, subdivision (f), expressly gives the trial court discretion to deny resentencing if it determines that an eligible prisoner would pose an unreasonable risk of danger to public safety—discretion that may be exercised "only after an inmate satisfies the [eligibility] criteria set out in subdivision (e), and only in determining whether granting that relief would pose an unreasonable risk of danger even if the petitioner satisfies the criteria in subdivision (e)." (Brown, at p. 1512.)
Ballot materials concerning Proposition 36 support the conclusion that trial courts do not have authority to strike a prior conviction pursuant to section 1385 in determining an inmate's eligibility for resentencing. The legislative analysis of Proposition 36 described how certain current third strikers would be resentenced, but explained that the Reform Act " 'limits eligibility for resentencing to third strikers whose current offense is nonserious, non-violent, and who have not committed specified current and prior offenses, such as certain drug-, sex-, and gun-related felonies.' " (Brown, supra, 530 Cal.App.4th at p. 1514, quoting Voter Information Guide, Gen. Elec. (Nov. 6, 2012), analysis of Prop. 36, by Legis. Analyst, at p. 50 (Voter Information Guide), italics in Brown.) "The legislative analysis also explain[ed] that trial courts 'conducting these resentencing hearings would first determine whether the offender's criminal history makes them eligible for resentencing[,]' " but "[n]owhere in the legislative analysis does it state that a trial court has discretion to determine eligibility nothwithstanding the three-part criteria in subdivision (e) of section 1170.126." (Brown, at p. 1514.) Brown concluded that it is "clear the electorate's intent was not to allow a trial court to retain its section 1385 discretionary authority when determining whether an inmate is eligible for resentencing under the Reform Act." (Ibid., quoting Voter Information Guide, at p. 50, italics in Brown.) Indeed, giving trial court discretion to alter the criminal history of inmates seeking resentencing in order to be able to resentence them would undermine the very concept of "eligibility" for resentencing.
Appellant argues that the Brown court's analysis "proves too much" in that if Brown was correct that the voters' intent was to maintain life sentences for felons with prior convictions for rape, murder or child molestation "unconditionally and without exception," then the voters would have had to strip courts of the power to dismiss priors under section 1385 at original sentencing rather than reaffirming that power as they did in section 1170.12, subdivision (d)(2). Furthermore, appellant argues that because the ballot materials Brown relied upon in discerning the voters' intent were similar to those related to the original three strikes law, if Brown was correct, then Romero was wrong in deciding that courts have authority to dismiss such prior convictions pursuant to section 1385 at initial three strikes sentencing.
Appellant's unopposed motion request for judicial notice of ballot materials pertaining to the original three strikes initiative and to the initiative by which the Reform Act was adopted was granted by this court on September 15, 2016.
Appellant's assumption of equivalence between original sentencing and resentencing under the Reform Act has been rejected repeatedly by this and other courts. The provisions governing resentencing provide "similar, but not identical, relief for prisoners already serving third strike sentences in cases where the third strike was not a serious or violent felony" to the relief afforded by the provisions governing prospective, original sentencing. (Kaulick, supra, 215 Cal.App.4th at p. 1292.) Romero was concerned only with original three strikes sentencing, and refused to interpret the three strikes law as conditioning courts' power to dismiss prior convictions on prosecutors' consent not in order to effectuate voters' intent but to preserve the constitutionality of the statute, because the opposite interpretation would have violated the doctrine of separation of powers. (Romero, supra, 13 Cal.4th at pp. 509, 517-519.) Brown, on the other hand, considered language in the voter materials emphasizing that the proposed more lenient treatment with respect to third strike felonies would not lead to the release of inmates with particularly serious criminal histories and concluded the voters did not intend for trial courts to be able to bypass the eligibility criteria for resentencing of three strikes inmates.
Appellant stops short of arguing that disallowing trial courts' exercise of section 1385 discretion in determining eligibility for resentencing under section 1170.126, which discretion can be exercised at original sentencing, violates equal protection. This court and others have rejected equal protection challenges to other differences in treatment between original sentencing of three strikes defendants and resentencing of three strikes inmates. (Thurston, supra, 244 Cal.App.4th at pp. 658-659 [pleading and proof]; People v. Losa (2014) 232 Cal.App.4th 789, 793 [dangerousness].)
Appellant was ineligible for resentencing due to his prior conviction for forcible rape. The trial court did not have authority under section 1385 to dismiss the prior in order to make him eligible.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.