Filed 5/28/14 P. v. Diaz CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B251397

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA023829)
         v.

AUGUSTIN DIAZ,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County.
William C. Ryan, Judge. Affirmed.


         California Appellate Project, Jonathan B. Steiner, Executive Director, James A,
Uyeda, Staff Attorney, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Jessica C.
Owen, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       Defendant Augustin Diaz appeals from the denial with prejudice of his petition for
recall of sentence pursuant to the Three Strikes Reform Act of 2012. Defendant suffered
convictions in 1996 for three counts of residential burglary (Pen. Code, § 459)1 and one
count of receiving stolen property (§ 496, subd. (a)). The trial court found that defendant
had suffered two prior strike convictions for first degree burglary within the meaning of
the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior
serious felony convictions within the meaning of section 667, subdivision (a).
       On appeal, this court reversed one of the residential burglary counts and vacated
the sentence on that count. We affirmed the trial court’s imposition of two consecutive
terms of 25 years to life for the other two burglary convictions and the two consecutive
five-year terms for the two prior serious felony enhancements. We modified defendant’s
two-year consecutive term for receiving stolen property to a third consecutive term of
25 years to life, resulting in a total sentence of 85 years to life.
       Defendant appeals on the ground that he is entitled to a Proposition 36 recall and
resentencing of the 25-years-to-life sentence imposed on his conviction for receiving
stolen property because that crime is not a serious or violent felony.
                                        DISCUSSION
I. Relevant Authority
       “On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended sections 667 and 1170.12 and added section
1170.126 (hereafter the Act). The Act changes the requirements for sentencing a third
strike offender to an indeterminate term of 25 years to life imprisonment. Under the
original version of the three strikes law a recidivist with two or more prior strikes who is
convicted of any new felony is subject to an indeterminate life sentence. The Act diluted
the three strikes law by reserving the life sentence for cases where the current crime is a
serious or violent felony or the prosecution has pled and proved an enumerated



1      All further references to statutes are to the Penal Code unless stated otherwise.


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disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike
offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding
whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the
three strikes law for a crime that is not a serious or violent felony and who is not
disqualified, may have his or her sentence recalled and be sentenced as a second strike
offender unless the court determines that resentencing would pose an unreasonable risk of
danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th
161, 167-168.)
       Section 1170.126, subdivision (b) provides: “Any person serving an indeterminate
term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section
667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by
trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies
by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a
petition for a recall of sentence, within two years after the effective date of the act that
added this section or at a later date upon a showing of good cause, before the trial court
that entered the judgment of conviction in his or her case, to request resentencing in
accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of
Section 1170.12, as those statutes have been amended by the act that added this section.”
II. Arguments
       Defendant argues that he is eligible for recall and resentencing of the third strike
sentence he received for his nonserious felony conviction, even though he suffered two
convictions and third strike sentences for two serious felonies at the same proceeding.
He argues that nothing in the recall statute precludes him from having the sentence for
the nonserious felony recalled, and any other result would be incongruous. The statute
specifically provides that “[a]ny person serving an indeterminate term of life
imprisonment imposed . . . upon conviction . . . of a felony or felonies that are not defined
as serious . . . may file a petition for recall . . . .” (§ 1170.126, subd. (b).) Under the
usual and ordinary meaning of the words of the statute, it is clear that the intent of the
statute was to allow defendants who are presently serving third strike indeterminate

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sentences for both serious and nonserious offenses to petition for resentencing on the
nonserious felonies.
       Respondent first notes that the issue of whether a defendant has the right to appeal
a trial court’s determination that he is statutorily ineligible for resentencing under section
1170.126 is currently being considered by the California Supreme Court. Respondent
asserts that because defendant is currently serving an indeterminate life sentence for
serious felonies, his petition for recall of sentencing should not have been filed in the first
instance. The trial court’s denial of his petition does not affect his substantial rights and
does not constitute an appealable order. According to respondent, this appeal should be
dismissed and defendant should seek relief, if at all, by way of extraordinary writ.
Respondent also contends that defendant does not qualify for resentencing because
allowing him to reap the benefits of the Act would be contrary to the Legislature’s intent.
III. Analysis
       A. Appealability
       Courts of Appeal are split on the issue of whether a person who is found to be
ineligible for resentencing under section 1170.26 may appeal from an order denying a
petition to recall a sentence. The Supreme Court has granted review to consider whether
such an order may be appealed. (See, e.g., Teal v. Superior Court (2013) 217
Cal.App.4th 308 (Teal), review granted Jul. 31, 2013, S211708 [an order denying a
§ 1170.126 petition is not appealable, but appellate court may treat the appeal as a
petition for writ of mandate or habeas corpus]; People v. Hurtado (2013) 216
Cal.App.4th 941, review granted Jul. 31, 2013, S212017 [an order denying a § 1170.126
petition is appealable under § 1237, subd. (b) as an order after judgment affecting a
party’s substantial rights]; People v. Leggett (2013) 219 Cal.App.4th 846, review granted
Dec. 18, 2013, S214264 [“an order denying relief under § 1170.126 is not appealable if it
denies a petition that was erroneously filed by an individual whose indeterminate three
strikes sentence is based on a conviction for any serious or violent felony. In all other
instances, an order denying a petition for recall of sentence is appealable, whether based
on a determination of ineligibility or an exercise of the trial court’s discretion to deny

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resentencing”]; People v. Wortham (2013) 220 Cal.App.4th 1018, review granted Jan. 15,
2104, S214844 [an order denying a § 1170.126 petition is appealable]; In re Martinez
(2014) 223 Cal.App.4th 610, review granted May 14, 2014, S216922 [exercising
discretion to treat appeal as a petition for writ of habeas corpus rather than contribute to
the debate].) The Supreme Court has designated Teal as the lead case and deferred
briefing in Hurtado, Leggett, Wortham and Martinez, pending further order of the court.
       In Braziel v. Superior Court (2014) 225 Cal.App.4th 933 (Braziel), the same court
that decided Teal deemed the notice of appeal a petition for writ of mandate and issued an
order to show cause. In a very recent case, People v. Haynes (2014) 225 Cal.App.4th 997
(Haynes), the court determined that a trial court’s denial of a request for resentencing,
even at the initial determination of eligibility, is an order made after judgment affecting
the substantial rights of the party and is appealable under section 1237, subdivision (b).
(Haynes, at p. 1005.)
       Thus, were we to conclude the order was not appealable, we could nevertheless
consider defendant’s appeal to be a petition for writ of habeas corpus or petition for writ
of mandate and address its merits in the interest of judicial economy and due to
uncertainty in the law. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating
appeal from an order asserted to be nonappealable by the Attorney General as a petition
for writ of habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 853
[treating untimely appeal as petition for writ of mandate due to uncertainty in the law
respecting appealability of the orders in question].) In the instant case, we agree with the
Haynes court and conclude that the trial court’s order is appealable in that it affects the
defendant’s substantial rights, and we address the merits of the appeal.
       B. Defendant Is Not Eligible to Petition
       “[O]ur interpretation of a ballot initiative is governed by the same rules that apply
in construing a statute enacted by the Legislature. [Citations.] We therefore first look to
‘the language of the statute, affording the words their ordinary and usual meaning and
viewing them in their statutory context.’ [Citations.] Once the electorate’s intent has
been ascertained, the provisions must be construed to conform to that intent. [Citation.]

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‘[W]e may not properly interpret the measure in a way that the electorate did not
contemplate: the voters should get what they enacted, not more and not less.’
[Citation.]” (People v. Park (2013) 56 Cal.4th 782, 796.) “If the statutory language is
not ambiguous, then the plain meaning of the language governs. [Citation.]” (People v.
Lopez (2005) 34 Cal.4th 1002, 1006.) “‘“If, however, the statutory language lacks
clarity, we may resort to extrinsic sources, including the ostensible objects to be achieved
and the legislative history. [Citation.] In such situations, we strive to select the
construction that comports most closely with the Legislature’s apparent intent, with a
view to promoting rather than defeating the statute[’s] general purposes. [Citation.] We
will avoid any interpretation that would lead to absurd consequences. [Citation.]”
[Citation.]’ [Citation.]” (People v. Elliot (2005) 37 Cal.4th 453, 478.)
       Section 1170.126, subdivision (e) provides for three criteria to determine if an
inmate is eligible for resentencing. First, the inmate must be serving an indeterminate
term of life imprisonment imposed pursuant to section 667, subdivision (e)(2) or section
1170.12, subdivision (c) for a conviction of a felony or felonies that are not defined as
serious and/or violent felonies.2 Second, the inmate’s current sentence must not have
been imposed for any offense listed in section 667, subdivision (e)(2)(C)(i)-(iii).3 Third,
the inmate must not have a prior conviction for any of the offenses in section 667,
subdivision (e)(2)(c)(iv) or section 1170.12, subdivision (c)(2)(C)(iv), which list eight




2      The statute refers to the definitions of violent and serious felonies contained in
section 667.5, subdivision (c) and section 1192.7, subdivision (c), respectively.
3      These subsections include additional penalties for any controlled substance charge
involving specified quantities of heroin or cocaine or specified volumes or weights of
other controlled substances; certain felony sex offenses and certain felony offenses that
resulted in mandatory registration as a sex offender; and any felony in which the
defendant used a firearm, was armed with a firearm or deadly weapon, or intended to
cause great bodily injury.


                                              6
serious or violent felonies.4 In the instant case, the viability of defendant’s petition
hinges on the first criterion.
       A recent case, Baziel, cited ante, disagreed with defendant’s argument that he is
entitled to recall and resentencing on his one nonserious felony conviction even though
he is serving two indeterminate terms for serious felonies. In that case, the court held that
the language of section 1170.126 suggests that a defendant is not eligible for recall of a
sentence if any of the offenses for which he is serving a three strikes sentence is a serious
or violent felony. (Braziel, supra, 225 Cal.App.4th at pp. 946-947.) The Braziel court
stated that the fact the statute requires the petitioner to list all current felonies resulting in
an indeterminate life sentence supports the conclusion that the court must consider all
current felonies in determining eligibility. (Ibid.) The court also relied on the evidence
of voter intent in the ballot pamphlet arguments, which state that Proposition 36 limits
eligibility for resentencing to third strikers whose current offense is nonserious,
nonviolent and who have not committed specified current and prior offenses. (Ibid.)
According to Braziel, this language means that the court must consider all felonies in
determining eligibility for resentencing.
       Braziel is on point. Section 1170.126 by its terms applies to any person serving an
indeterminate term of life imprisonment of a felony or felonies that are not defined as
serious or violent. (§ 1170.126, subd. (b).) Defendant does not fall into this category.
The statute also provides that its provisions are intended to apply “exclusively” to
persons presently serving an indeterminate term of imprisonment whose sentence under
the Act would not have been an indeterminate life sentence.5 (§ 1170.126, subd. (a).)



4      The eight felonies precluding eligibility are a sexually violent offense (Welf. &
Inst. Code, § 6600, subd. (b)); sexual offenses against minors; a violation of section 288;
homicide or attempted homicide; solicitation to commit murder; assault with a machine
gun on a peace officer or firefighter; possession of a weapon of mass destruction; and any
serious or violent felony punishable in California by life imprisonment or death.
5      Section 1170.126, subdivision (a) provides in pertinent part: “The resentencing
provisions under this section and related statutes are intended to apply exclusively to

                                                7
Again, defendant does not fit this description. As Braziel pointed out, section 1170.126,
subdivision (d) provides that a petition for a recall of sentence “shall specify all of the
currently charged felonies, which resulted in the [indeterminate life] sentence . . . and
shall also specify all of the prior convictions alleged and proved . . . .” Defendant was
therefore required to list all of his offenses that resulted in his life sentence so that the
court could consider all of these felonies in assessing defendant’s petition. (See Braziel,
supra, 225 Cal.App.4th at p. 947.) We believe this consideration should take place at the
initial, eligibility stage rather than at the ultimate stage, which requires the trial court to
exercise its discretion to deny resentencing to an inmate who otherwise qualifies under
the statute. Just like the defendant in Braziel, defendant’s current convictions for two
burglaries, which triggered his indeterminate life sentences, rendered him ineligible for
resentencing under section 1170.126, subdivision (e)(1), since he is serving two
indeterminate terms of life for conviction of felonies defined as serious by section 667.5,
subdivision (c) and section 1192.7, subdivision (c).6 Thus, the court properly denied his
petition for resentencing.




persons presently serving an indeterminate term of imprisonment pursuant to paragraph
(2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section
1170.12, whose sentence under this act would not have been an indeterminate life
sentence.” (§ 1170.126, subd. (a).)
6      Section 1170.126, subdivision (e) provides in pertinent part: “An inmate is
eligible for resentencing if: [¶] (1) The inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.”


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                                  DISPOSITION
     The order appealed from is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                      BOREN, P.J.
We concur:


     ASHMANN-GERST, J.


     CHAVEZ, J.




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