Filed 12/28/15 P. v. Nava CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143516
v.
RUBEN NAVA,                                                          (San Mateo County
                                                                     Super. Ct. No. SC049871A)
         Defendant and Appellant.


         Ruben Nava was sentenced to an indeterminate life term of 25 years to life under
the “Three Strikes” law for failing to register as a sex offender. (Pen. Code, § 290, subd.
(g)(2).)1 He appeals from an order denying his petition for resentencing under the
Three Strikes Reform Act of 2012 (Reform Act), added by Proposition 36, effective
November 7, 2012. (§ 1170.126; see Teal v. Superior Court (2014) 60 Cal.4th 595, 601
[order denying § 1170.126 petition on eligibility grounds is appealable order].) Appellant
contends the trial court erred in ruling he was ineligible for resentencing based on his
prior conviction of lewd and lascivious conduct with a child under 14 years of age
(§§ 288, subd. (a), 1170.126, subd. (e)). He argues the trial court had the discretion to
strike that prior conviction for purposes of determining his eligibility, and suggests that to
hold otherwise would deprive him of equal protection because defendants with more
serious prior convictions are not barred from obtaining relief under section 1170.126.
We disagree and affirm.


         1
             Further undesignated statutory references are to the Penal Code.

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                                     BACKGROUND
       On March 28, 2002, a jury convicted appellant of failing to register as a sex
offender (a felony) and providing false information to a peace officer (a misdemeanor).
(§§ 148.9, 290, subd. (g)(2).) The trial court sentenced him to a term of 25 years to life
plus one year after it found true allegations he had served a prior prison term and had
suffered three prior convictions qualifying as strikes under the Three Strikes law: a 1984
conviction for aggravated assault, a 1991 conviction for aggravated assault, and a 1992
conviction for lewd and lascivious conduct with a child under 14 years of age. (§§ 245,
subd. (a), 288, subd. (a), 667.5, subd. (b), 1170.12.) The trial court denied appellant’s
motion to strike his prior convictions.
       This court affirmed the judgment on appeal, rejecting claims pertaining to the
propriety of the jury instructions and the constitutionality of the sentence against a
challenge that it amounted to cruel and unusual punishment. (U.S. Const., 8th Amend.;
Cal. Const., art. I, § 17; People v. Nava (Aug. 11, 2004, A102923 [nonpub. opn.]).) The
federal district court denied appellant’s petition for writ of habeas corpus on the same
grounds, and that order was affirmed by the Ninth Circuit Court of Appeals. (Nava v.
Adams (Dec. 28, 2007) C06-00392 MJJ, 2007 WL 4591739; Nava v. Haws (Jan. 31,
2011) 414 Fed.Appx. 23.)
       In 2012, the voters passed the Reform Act, which amended the Three Strikes law
to provide that subject to certain exceptions, an indeterminate life term may not be
imposed for a third strike when the current felony is neither serious nor violent. (People
v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 (Yearwood). The Reform Act also
added section 1170.126, which creates a postconviction procedure for resentencing
persons presently serving a third strike indeterminate life term for a nonserious,
nonviolent felony, subject to the same exceptions, and subject to the provision that the
defendant will not be resentenced if he or she poses an unreasonable risk of danger to
public safety. (Yearwood, at pp. 167-168.)
       On August 22, 2014, appellant filed a petition in propria persona for recall and
resentencing under section 1170.126. The petition acknowledged that appellant’s prior


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conviction for a violation of section 288 appeared to make him statutorily ineligible for
resentencing, but claimed that ineligibility would violate equal protection principles
because individuals with a prior conviction of section 288.7—punishing various sexual
acts with a child under 10—were not ineligible. The district attorney opposed the motion
to recall the sentence. On September 18, 2014, represented by counsel, appellant filed an
amended petition for recall and resentencing urging the court to strike his prior section
288 conviction in the interests of justice under section 1385. The district attorney argued
in response that the court lacked the power to strike a prior conviction for purposes of
determining eligibility for resentencing under section 1170.126.
       The trial court denied the section 1170.126 petition “based on the plain state of the
law” and noted, “[T]o the extent that I have the jurisdiction to entertain a 1385 motion,
I’m going to deny that request as well.”

                                       DISCUSSION
       The Reform Act amended the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12)
to provide that subject to certain exceptions, a defendant with two or more prior “strike”
convictions may be sentenced to an indeterminate life term in prison only when the
current offense is a serious or violent felony; if the current offense is not serious or
violent, only a lesser second-strike term may be imposed. (§§ 667, subd. (e)(2)(A) & (C),
1170.12, subd. (c)(2)(A) & (C).) With respect to defendants previously sentenced to a
life term under the Three Strikes law, section 1170.126 sets forth the substantive and
procedural requirements for seeking recall and resentencing as a second strike offender.
       A defendant is eligible for recall and resentencing under section 1170.126 if (1) he
or she is serving an indeterminate term of life imprisonment under the Three Strikes law
for a felony that is not defined as serious or violent under sections 667.5, subdivision (c)
or 1192.7, subdivision (c); (2) the current sentence was not imposed for a controlled
substance offense with a specified weight enhancement, an enumerated sex offense, or an
offense during which the defendant used a firearm, was armed with a firearm or deadly
weapon, or intended to cause great bodily injury to another person; and (3) he or she has



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no prior convictions for specified felony offenses. (§ 1170.126, subd. (e); People v.
Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 988-989 (Martinez).) If a
defendant is eligible, he or she must be resentenced to a second strike term unless the trial
court, “ ‘in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ ” (§ 1170.126, subd. (f); see Yearwood,
supra, 213 Cal.App.4th at p. 170.)
       Appellant’s current commitment offense of failing to register as a sex offender is
not a serious or violent felony under section 667.5, subdivision (c) or section 1192.7,
subdivision (c). However, an inmate who is otherwise qualified for resentencing is only
eligible if “[t]he 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.”
(§ 1170.126, subd. (e)(3).) Both section 667, subdivision (e)(2)(C)(iv) and section
1170.12, subdivision (c)(2)(C)(iv) include the following as a disqualifying offense: “A
lewd or lascivious act involving a child under 14 years of age, in violation of Section
288.” (§§ 667, subd. (e)(2)(C)(iv)(III), 1170.12, subd. (c)(2)(C)(iv)(III).) Appellant’s
prior conviction of violating section 288 disqualifies him from obtaining relief under the
Reform Act.2


       2
          Both section 667, subdivision (e)(2)(C)(iv) and section 1170.12, subdivision
(c)(2)(C)(iv) list the following as disqualifying prior offenses: “(I) A ‘sexually violent
offense’ as defined by subdivision (b) of Section 6600 of the Welfare and Institutions
Code. [¶] (II) Oral copulation with a child who is under 14 years of age, and who is
more than 10 years younger than he or she as defined by Section 288a, sodomy with
another person who is under 14 years of age and more than 10 years younger than he or
she as defined by Section 286, or sexual penetration with another person who is under 14
years of age, and who is more than 10 years younger than he or she, as defined by Section
289. [¶] (III) A lewd or lascivious act involving a child under 14 years of age, in
violation of Section 288. [¶] (IV) Any homicide offense, including any attempted
homicide offense, defined in Sections 187 to 191.5, inclusive. [¶] (V) Solicitation to
commit murder as defined in Section 653f. [¶] (VI) Assault with a machine gun on a
peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
[¶] (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of

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       Appellant argues the trial court had the authority to strike his prior section 288
conviction in the interests of justice under section 1385 and People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero), and that the case should be remanded to allow
the court to exercise this discretion and resentence him under section 1170.126. The
short answer to this contention is that the trial court did not refuse to consider appellant’s
motion to strike the prior conviction for lewd conduct; rather, it indicated it would deny
the motion to the extent it had jurisdiction to consider it. Appellant has not carried his
burden of establishing an abuse of discretion in denying his motion on the merits. (See
People v. Carmony (2004) 33 Cal.4th 367, 376-379.)3
       We affirm for the additional reason that a trial court lacks the discretion to strike a
prior conviction for the purposes of determining eligibility for resentencing under section
1170.126. In this regard we follow People v. Brown (2014) 230 Cal.App.4th 1502, 1511-
1514 (Brown), whose reasoning we find persuasive. “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,
. . . and contains no provision authorizing a trial court to disregard the required criteria.
[Citation.] 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.” (Id. at pp. 1511-1512; see Martinez, supra, 225


subdivision (a) of Section 11418. [¶] (VIII) Any serious and/or violent felony offense
punishable in California by life imprisonment or death.”
       3
         After oral argument and submission of this appeal pursuant to rule 8.256(d)(1)
of the California Rules of Court, appellant submitted a request that this court take judicial
notice of hearings in other cases in which the same trial court indicated it did not have the
discretion to strike a prior conviction for purposes of determining eligibility for
resentencing under section 1170.126. Because the request is untimely, we decline to
consider it.


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Cal.App.4th at p. 989 [“[i]f 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”].)
          In reaching this result, the Brown court noted that section 1170.126, subdivision
(f) explicitly gives the court the discretion to determine whether the release of an inmate
who is eligible for resentencing “would pose an unreasonable risk of danger to public
safety.” “The plain language of subdivision (f) of the statute gives trial courts discretion
only after an inmate satisfies the criteria 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 set out in subdivision (e).” (Brown, supra, 230
Cal.App.4th at p. 1512.) “[T]he absence of discretionary authority in section 1170.126,
subdivision (e) shows the Legislature intended to withhold statutory power of a trial court
to exercise its discretion in the furtherance of justice under section 1385 in determining a
defendant’s eligibility to be resentenced under the Reform Act.” (Ibid.) This
interpretation was consistent with the Reform Act’s legislative history, in which the
legislative analysis included in ballot materials for Proposition 36 explained it would
“ ‘‘limit[] 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.’ ” (Id. at pp. 1513-1514, citing Voter
Information Guide, Gen. Elec. (Nov. 6, 2012), analysis of Prop. 36 by Legis. Analyst, at
p. 50.)
          Appellant argues that Brown was incorrectly decided. He submits that a
circumstance disqualifying an inmate from recall and resentencing under the Reform Act
must be pleaded and proved by the prosecution, and that consequently there is
“something” for the court to strike or dismiss under section 1385 in the context of an
eligibility determination. We disagree with appellant’s premise. While a prosecutor
must plead and prove a disqualifying circumstance to obtain a life sentence for a
defendant convicted of a nonviolent/nonserious offense in the first instance at the original
sentencing hearing (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)), there is no
pleading and proof requirement for the recall procedure under section 1170.126,


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subdivision (e). Rather, “the burden falls on the trial court to make the determination of
whether the defendant meets the prima facie criteria” for resentencing. (People v.
Guilford (2014) 228 Cal.App.4th 651, 657; see People v. White (2014) 223 Cal.App.4th
512, 526-527; People v. Osuna (2014) 225 Cal.App.4th 1020, 1033-1034.)
       Nor are we persuaded by appellant’s suggestion that a power to strike can be
gleaned from sections 667, subdivision (f)(2) and 1170.12, subdivision (d)(2), which
allow a court to dismiss a strike allegation before imposing sentence under the Three
Strikes law in the first instance. “[T]here are two parts to the [Reform] Act: the first part
is prospective only, reducing the sentence to be imposed in future three strike cases
where the third strike is not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the
second part is retrospective, providing 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 [citation].” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th
1279, 1292 (Kaulick).) Sections 667, subdivision (f)(2) and 1170.12, subdivision (d)(2)
concern the prospective application of the Reform Act to an original sentencing hearing,
whereas we are concerned only with the retrospective application of the Reform Act to a
petition for recall and resentencing.
       The factors that would render an inmate ineligible for recall and resentencing
under section 1170.12, subdivision (e) also render a defendant facing an initial sentencing
hearing eligible for an indeterminate life sentence under the Three Strikes law; in other
words, the Reform Act does not preclude a court from imposing an indeterminate life
term for a nonserious/nonviolent felony when those circumstances apply. (§§ 667, subd.
(e)(2)(C)(i)-(iv), 1170.12, subd. (c)(2)(C)(i)-(iv), 1170.126, subd. (e).) In making the
initial sentencing determination, a court retains the power under sections 667, subdivision
(f)(2) and 1170.12, subdivision (d)(2) to “strike a strike” under section 1385 in the
interests of justice. (See Romero, supra, 13 Cal.4th at p. 504.) But this power to employ
section 1385 when formulating the original sentence in the interests of justice does not
necessarily or logically confer the power to strike a prior conviction for the purposes of
determining eligibility for resentencing under the Reform Act.


                                              7
       Appellant argues his right to equal protection is violated if defendants seeking a
recall and resentencing under section 1170.126 are precluded from seeking dismissal of a
prior conviction to the same extent as defendants who are being initially sentenced under
the Three Strikes law. We disagree. “ ‘The concept of equal protection recognizes that
persons who are similarly situated with respect to a law’s legitimate purposes must be
treated equally. [Citation.] Accordingly, “ ‘[t]he first prerequisite to a meritorious claim
under the equal protection clause is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal manner.’ ” [Citation.]
“This initial inquiry is not whether persons are similarly situated for all purposes, but
‘whether they are similarly situated for purposes of the law challenged.’ ” [Citation.]’ ”
(People v. Losa (2014) 232 Cal.App.4th 789, 792.) Appellant’s claim does not prevail
because he is not similarly situated to persons being newly sentenced under the Reform
Act. (Id. at p. 793; see Kaulick, supra, 215 Cal.App.4th at p. 1306; Yearwood, supra, 213
Cal.App.4th at pp. 178-179 [prospective application of amended sections 667 and
1170.12 and different standard for inmates petitioning for recall and resentencing does
not unfairly discriminate against defendant or violate his right to equal protection under
the law].)
       Moreover, appellant brought a motion to strike his prior convictions at his original
sentencing hearing. Construing section 1170.126 in the manner suggested by appellant
would improperly permit him to relitigate that motion in violation of the general rule that
a trial court lacks the jurisdiction to modify a defendant’s sentence once execution of that
sentence has begun. (Brown, supra, 230 Cal.App.4th at p. 1511.)
       Finally, appellant argues it would violate equal protection principles to find him
ineligible for recall and resentencing based on a prior conviction of lewd conduct under
section 288, subdivision (a), when defendants with prior convictions for more serious
violations under section 288.7 are not ineligible. We reject the claim because inmates
with prior convictions under section 288.7 are also ineligible for resentencing under
section 1170.126.



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       Section 288.7 provides: “(a) Any person 18 years of age or older who engages in
sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a
felony and shall be punished by imprisonment in the state prison for a term of 25 years to
life. [¶] (b) Any person 18 years of age or older who engages in oral copulation or sexual
penetration, as defined in Section 289, with a child who is 10 years of age or younger is
guilty of a felony and shall be punished by imprisonment in the state prison for a term of
15 years to life.” Sections 667, subdivision (e)(2)(C)(iv) and 1170.12, subdivision
(c)(2)(C)(iv), which list the disqualifying prior convictions referenced in section
1170.126, subdivision (e), include “(VIII) Any serious and/or violent felony offense
punishable in California by life imprisonment or death.” A violation of section 288.7 is a
serious and violent felony because it is “punishable by death or life imprisonment in state
prison.” (§ 667.5, subd. (c)(7), 1192.7, subd. (c)(7).) It is, therefore, a serious and
violent felony punishable by “life imprisonment” that will disqualify an inmate from
recall and resentencing under the Reform Act. (See People v. Lopez (2005) 34 Cal.4th
1002, 1006-1011 [first degree murder, which required sentence of 25 years to life, was
offense “ ‘punishable by imprisonment . . . for life’ ” under gang enhancement provisions
of § 186.22].)
       Appellant claims that section 288.7 is not a serious or violent felony because it is
not “punishable by life imprisonment.” He relies on In re Jeanice D. (1980) 28 Cal.3d
210 (Jeanice D.), superseded by statute as stated in People v. King (1993) 5 Cal.4th 59,
65-68, in which the court concluded a defendant under 21 who was convicted of murder
and subject to a sentence of 25 years to life was not ineligible for commitment to the
former California Youth Authority (CYA) in lieu of prison as a person “sentenced to
death, [or] imprisonment for life.” (See former Welf. & Inst. Code, § 1731.5, subd. (a);
Stats. 1969, ch. 785, p. 1602, § 2.) The result in Jeanice D. was predicated on pre-1978
case law concluding that youths convicted of an offense carrying an indeterminate
sentence with a possible life imprisonment maximum under the former indeterminate
sentencing law (e.g., five years to life) were eligible for a CYA commitment even though



                                              9
defendants convicted of murder, which carried a “straight” life sentence, were ineligible.
(Jeanice D., at pp. 214-221.)
       The considerations at play in Jeanice D. do not apply to section 1170.126 and its
incorporation by reference of serious or violent felonies “punishable by life
imprisonment.” Section 1170.126’s restriction on eligibility is obviously intended to bar
the resentencing of defendants whose criminal histories makes them unsuitable for more
lenient treatment under the provisions of the Reform Act. It would produce an absurd
result to conclude that a prior conviction of section 288.7 is not punishable by “life
imprisonment” within the meaning of the Reform Act because it carries a penalty of
either 15 or 25 years to life, rather than a “straight” life sentence under which a defendant
may be considered for release on parole after only seven calendar years under section
3046, subdivision (a)(1). (See People v. Moore (2004) 118 Cal.App.4th 74, 78
[ambiguity in statute will not be construed in criminal defendant’s favor where to do so
would create absurd result].)

                                      DISPOSITION
       The judgment (order denying petition for recall and resentencing under section
1170.126) is affirmed.




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                           NEEDHAM, J.



We concur.




SIMONS, ACTING P.J.




BRUINIERS, J.




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