Filed 10/2/15 (unmodified opn. attached)
                                  CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   THIRD APPELLATE DISTRICT
                                           (Sacramento)
                                               ---




THE PEOPLE,

                 Plaintiff and Respondent,                          C073336

        v.                                                  (Super. Ct. No. 97F05802)

GARYON TRACY NETTLES,                                     ORDER MODIFYING OPINION
                                                           AND DENYING PETITION
                 Defendant and Appellant.                     FOR REHEARING

                                                          [NO CHANGE IN JUDGMENT]


THE COURT:
        The opinion filed September 11, 2015, in the above cause is modified in the
following respects:
        In the last paragraph of page six that continues to the top of page seven,
change the following sentence and citation from: “The choice of verb tense is considered
significant in construing a statute.” (People v. Dunckhurst (2014) 226 Cal.App.4th 1034,
1041-1042.) to read as follows: “In construing statutes, the use of verb tense . . . is




                                                1
considered significant.” (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th
763, 776.)
      This modification does not change the judgment.
      Appellant’s petition for rehearing is denied.




      /s/              ,
HULL, Acting P.J.




       /s/                 ,
DUARTE, J.



             /s/           ,
HOCH, J.




                                            2
Filed 9/11/15 (unmodified version)
                          CERTIFIED FOR PARTIAL PUBLICATION*




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                            (Sacramento)
                                                ---



THE PEOPLE,

                 Plaintiff and Respondent,                           C073336

        v.                                                  (Super. Ct. No. 97F05802)

GARYON TRACY NETTLES,

                 Defendant and Appellant.


       APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M.
Earl, Judge. Affirmed.

      Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.

      Kamala D. Harris, Attorney General, Eric L. Christoffersen and Ivan P. Marrs,
Deputy Attorneys General, for Plaintiff and Respondent.




*       Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of parts II and III.


                                                 1
       Defendant Garyon Tracy Nettles, an inmate serving an indeterminate life sentence
imposed pursuant to the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667,
subds. (b)-(i))1, appeals from the trial court’s denial of his petition to recall his sentence
and for resentencing under section 1170.126, which became effective November 7, 2012,
after the voters approved Proposition 36, the Three Strikes Reform Act of 2012 (§§ 667,
1170.12, 1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012))
(Proposition 36 or the Act).
       Section 1170.126 “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.”
(People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 (Yearwood), italics added.)
The trial court concluded defendant was disqualified because two of his prior strike
convictions were for assault with intent to commit rape, a “sexually violent offense”
under Welfare and Institutions Code section 6600, subdivision (b). (See §§ 1170.126,
subd. (e)(3), 667, subd. (e)(2)(C)(iv)(I), 1170.12, subd. (c)(2)(C)(iv)(I).) Defendant
argues: (1) he is eligible for resentencing under the Act because the crime of assault with
intent to commit rape was not listed as a sexually violent offense in 1998 when he was
sentenced to serve the present indeterminate life term under the three strikes law; (2) the
record is insufficient to establish defendant’s prior strike offenses were sexually violent
in nature; and (3) defendant is entitled to a jury trial on the question of whether these
strikes qualify as sexually violent offenses.




1      Undesignated statutory references are to the Penal Code.


                                                2
       We disagree and affirm. As we explain in the published portion of this opinion,
under section 1170.126, “[a] prisoner is eligible for resentencing as a second strike
offender if all of the following are shown: (1) the prisoner is serving an indeterminate
life sentence for a crime that is not a serious or violent felony; (2) the life sentence was
not imposed for any of the offenses appearing in sections 667, subdivision (e)(2)(C) and
1170.12, subdivision (c)(2)(C); and (3) the inmate has no prior convictions for any of the
offenses appearing in clause (iv) of section 667, subdivision (e)(2)(C) or clause (iv) of
section 1170.12, subdivision (c)(2)(C).” (Yearwood, supra, 213 Cal.App.4th at p. 170.)
In People v. Johnson (2015) 61 Cal.4th 674 (Johnson), our Supreme Court recently held
the classification of the current offense as a serious or violent felony is determined as of
the date the Act became effective, relying on “section 1170.126’s use of the present verb
tense in describing the character of the current offense, the parallel structure of the
[Act’s] sentencing and resentencing provisions, and the ballot arguments in support of
Proposition 36.” (Id. at p. 683.) We similarly conclude the determination of whether or
not an inmate is disqualified from resentencing under section 1170.126,
subdivision (e)(3), because he or she has a prior conviction for an offense “appearing” in
clause (iv) of sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C), is
to be determined as of the date the Act became effective. “A ‘sexually violent offense’ as
defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code” appears
in clause (iv) of these subdivisions (§§ 667, subd. (e)(2)(C)(iv)(I); 1170.12, subd.
(c)(2)(C)(iv)(I)), and so appeared on the date the Act became effective. Moreover, on
that determinative date, Welfare and Institutions Code section 6600 defined “sexually
violent offense” to include assault with intent to commit rape. Because defendant has
two prior convictions for this crime, the trial court correctly ruled he was disqualified
from resentencing.




                                              3
       We also conclude in the nonpublished portion of the opinion that the record is
more than sufficient to establish defendant’s prior assault with intent to commit rape
convictions are sexually violent in nature. Nor is defendant entitled to a jury trial on the
question.
                                      BACKGROUND
       In 1998, defendant was convicted by jury of delivering checks with insufficient
funds (§ 476a) and petty theft with a prior (§ 666). Finding true allegations defendant
was previously convicted of three strike offenses, the trial court sentenced defendant to
serve an indeterminate term of 25 years to life plus a determinate term of one year in state
prison. (People v. Nettles (Aug. 28, 2000, C029790) [nonpub. opn.].)2 Two of
defendant’s prior strike convictions were for assault with intent to commit rape. (§ 220.)
Defendant pled guilty to these crimes in 1985. As we described the crimes in our prior
opinion: “In December 1984 [defendant] attacked a 23-year-old clerk in a convenience
store, repeatedly striking her with his fists, feet, bottles and cans in an attempt to rape her.
The victim suffered, among other things, a fractured skull and a collapsed lung, was
rendered unconscious and had to be hospitalized for 10 days. Also in December 1984,
defendant sexually assaulted a 29-year-old woman in a separate convenience store,
striking her with his fists, feet and bottles. She suffered a fractured skull, fractured ribs,
torn ear lobes, was rendered unconscious and spent four days in the hospital.” (Nettles,
supra, C029790.)
       On November 6, 2012, California voters approved Proposition 36. “The Act
changes the requirements for sentencing a third strike offender to an indeterminate term


2     We have incorporated the record in defendant’s prior appeal (Nettles, supra,
C029790) into the record in the present appeal. We also take judicial notice of our
unpublished opinion in the prior appeal. (Evid. Code, § 452, subd. (d)(1); Mendoza v.
Wichmann (2011) 194 Cal.App.4th 1430, 1433, fn. 2.)


                                               4
of 25 years to life imprisonment” (§§ 667, 1170.12) and “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.)” (Yearwood, supra, 213
Cal.App.4th at pp. 167-168.) The same month, defendant filed a petition to recall his
sentence and for resentencing under section 1170.126. The trial court denied the petition,
concluding defendant’s prior convictions for assault with intent to commit rape
disqualified him from receiving the benefits of section 1170.126.
                                       DISCUSSION
                                               I
                    Disqualifying Nature of Defendant’s Prior Strikes
       Under section 1170.126, “[a] prisoner is eligible for resentencing as a second
strike offender if all of the following are shown: (1) the prisoner is serving an
indeterminate life sentence for a crime that is not a serious or violent felony; (2) the life
sentence was not imposed for any of the offenses appearing in sections 667,
subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C); and (3) the inmate has no prior
convictions for any of the offenses appearing in clause (iv) of section 667, subdivision
(e)(2)(C) or clause (iv) of section 1170.12, subdivision (c)(2)(C).” (Yearwood, supra,
213 Cal.App.4th at p. 170, citing § 1170.126, subd. (e).)
       This case involves the third disqualifying circumstance. One category of offense
appearing in clause (iv) of sections 667, subdivision (e)(2)(C), and 1170.12, subdivision
(c)(2)(C), is “[a] ‘sexually violent offense’ as defined in subdivision (b) of Section 6600
of the Welfare and Institutions Code.” (§§ 667, subd. (e)(2)(C)(iv)(I), 1170.12,
subd. (c)(2)(C)(iv)(I).) Welfare and Institutions Code section 6600, subdivision (b),


                                               5
provides: “ ‘Sexually violent offense’ means 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, and that are committed on, before, or after the effective date of this
article and result in a conviction or a finding of not guilty by reason of insanity, as
defined in subdivision (a): a felony violation of Section . . . 220 . . . , committed with
the intent to commit a violation of Section 261 . . . .” Thus, section 1170.126,
subdivision (e)(3), disqualifies those three strike offenders who, like defendant herein,
have a prior conviction for assault with intent to commit rape that is committed by force
or violence.
       Nevertheless, defendant argues section 1170.126 is ambiguous as to whether
disqualification applies in this case because the crime of assault with intent to commit
rape was not listed as a sexually violent offense in 1998 when he was sentenced to his
present indeterminate life term under the three strikes law. In these circumstances, he
argues, the rule of lenity should operate in his favor. We disagree. The rule of lenity
generally requires that “ambiguity in a criminal statute should be resolved in favor of
lenity, giving the defendant the benefit of every reasonable doubt on questions of
interpretation. But . . . ‘that rule applies “only if two reasonable interpretations of the
statute stand in relative equipoise.” [Citation.]’ [Citations.]” (People v. Soria (2010) 48
Cal.4th 58, 65; In re M.M. (2012) 54 Cal.4th 530, 545.) On this issue, there is no
ambiguity in the language of section 1170.126. While the crime of assault with intent to
commit rape was added to the definition of “sexually violent offense” in 2006 (compare
Stats. 2000, ch. 643, § 1, pp. 4192-4194 with Stats. 2006, ch. 337, § 53, pp. 2660-2663),
section 1170.126, subdivision (e), clearly states an inmate is ineligible for resentencing if
he or she has a prior conviction “for any of the offenses appearing” in clause (iv) of
sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C). (Italics added.)


                                               6
“The choice of verb tense is considered significant in construing a statute.” (People v.
Dunckhurst (2014) 226 Cal.App.4th 1034, 1041-1042.) “Appearing” is the present
participle of “appear.” For purposes of resentencing, the “present” is the date Proposition
36 became effective, November 7, 2012. (See Johnson, supra, 61 Cal.4th at pp. 689-
690.) On that determinative date, a “ ‘sexually violent offense’ as defined in subdivision
(b) of Section 6600 of the Welfare and Institutions Code” appeared in sections 667,
subdivision (e)(2)(C)(iv)(I), and 1170.12, subdivision (c)(2)(C)(iv)(I), and Welfare and
Institutions Code section 6600 defined “sexually violent offense” to include assault with
intent to commit rape. Had the electorate intended this restriction on resentencing under
the Act to apply only to offenses that appeared in the definition of sexually violent
offense at the time the inmate was sentenced to his or her indeterminate life term under
the three strikes law, as defendant asserts, the electorate would have so specified. We
cannot, under the guise of statutory interpretation, rewrite the statute. (See, e.g., Wells
Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099; People v. Eckard (2011) 195
Cal.App.4th 1241, 1248; People v. Hill (1995) 37 Cal.App.4th 220, 226.)
       This conclusion is bolstered by our Supreme Court’s recent decision in Johnson,
supra, 61 Cal.4th 674. There, one of the defendants argued the classification of the
current offense as a serious or violent felony should be determined as of the date that
offense was committed, rather than the date Proposition 36 became effective. Our
Supreme Court disagreed, explaining, “section 1170.126’s use of the present verb tense
in describing the character of the current offense, the parallel structure of the sentencing
and resentencing provisions, and the ballot arguments in support of Proposition 36 lead
us to conclude that the classification of an offense as serious or violent for purposes of
resentencing is based on the law as of November 7, 2012, the effective date of
Proposition 36.” (Johnson, supra, at p. 683.)




                                              7
       As we have already explained, section 1170.126, subdivision (e)(3), at issue here,
also uses the present verb tense. Moreover, the other factors considered by the court in
Johnson, supra, 61 Cal.4th 674 also confirm the same result should obtain in this case.
With respect to the parallel structure of the Act’s sentencing and resentencing provisions,
the court explained this structure “reflects an intent that sentences imposed on individuals
with the same criminal history be the same, regardless of whether they are being
sentenced or resentenced.” (Johnson, supra, 61 Cal.4th at p. 686.) Had defendant herein
committed his current offense on or after the effective date of Proposition 36, and was
being sentenced under section 1170.12, rather than seeking resentencing under section
1170.126, there could be no doubt his prior assault with intent to commit rape convictions
would disqualify him from the new sentencing scheme. (See §§ 1170.12, subd.
(c)(2)(C)(iv)(I) [same disqualification], 1170.125 [“for all offenses committed on or after
November 7, 2012, all references to existing statutes in Sections 1170.12 and 1170.126
are to those sections as they existed on November 7, 2012”].)3 Applying our Supreme
Court’s reasoning to this case, because “the Act is more cautious with respect to
resentencing,” containing a safety valve for those seeking resentencing where the trial
court “‘determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety,’” “it would be incongruous to require a court, absent an
unreasonable risk of danger, to resentence an inmate such as [defendant]” where he
would be disqualified if he were “being sentenced in the first instance” under section
1170.12 with the same prior convictions. (Johnson, supra, at p. 686.) Finally, our



3       Our Supreme Court also explained section 1170.125’s reference to
section 1170.126 “makes no sense” because “section 1170.125 concerns only offenses
committed after Proposition 36 became effective, and section 1170.126 concerns the
recall of sentences imposed before Proposition 36 revised the Three Strikes sentencing
scheme.” (Johnson, supra, 61 Cal.4th at p. 685.)


                                             8
Supreme Court’s interpretation of the ballot arguments in support of Proposition 36 also
confirms our conclusion in this case. “Those arguments reflect an intent to ‘make the
punishment fit the crime’ and ‘make room in prison for dangerous felons.’ [Citation.]
Given that [defendant’s prior assault with intent to commit rape convictions] are now
considered [disqualifying offenses], the intent reflected in the ballot arguments to ‘keep
violent felons off the streets’ [citation] and ‘prevent[] dangerous criminals from being
released early’ [citation] would not be served by interpreting the Act to authorize a
reduction in his [or her] sentence.” (Johnson, supra, at p. 686.)
       We conclude defendant’s prior convictions for assault with intent to commit rape
qualify as sexually violent offenses and therefore disqualify him from having his sentence
recalled and from being resentenced as a second strike offender under section 1170.126.
                                             II
                                Sufficiency of the Evidence
       Defendant also claims the record is insufficient to establish his prior strike
offenses were sexually violent in nature. Specifically, he argues: “The trial court relied
on the plea colloquy to establish that the Strike convictions were sexually violent
felonies. This was improper, as the determination of what constitutes a ‘sexually violent
felony’ must be made on the basis of the Legislature’s statutory categories alone, without
assistance from the record of the Strike convictions.” He is mistaken.
       Generally, “in determining the truth of a prior-conviction allegation, the trier of
fact may look to the entire record of the conviction.” (People v. Guerrero (1988) 44
Cal.3d 343, 345.) The record of conviction includes a defendant’s guilty plea and “[a]
prosecutor’s comments occurring immediately before a court accepts a defendant’s guilty
plea.” (People v. Sample (2011) 200 Cal.App.4th 1253, 1261; People v. Roberts (2011)
195 Cal.App.4th 1106, 1120.)




                                              9
       Here, defendant pled guilty to two counts of assault with intent to commit rape in
1985. At the change of plea hearing, the prosecutor stated the factual basis of the plea as
follows: “The defendant repeatedly assaulted [the first victim] with fists, feet, bottles,
and during the assault defendant inflicted injuries of fractured skull, fractured ribs,
collapsed lung, torn ear lobes and unconsciousness and bruises at numerous locations on
her body. Additionally, [the first victim’s] pants and underpants were removed during
the assault. . . . Defendant repeatedly struck [the second victim] with feet, bottles and
cans. During the assault, defendant inflicted injuries of a fractured skull, fractured ribs,
torn ear lobes, unconsciousness and bruises at numerous locations of her person.
Defendant attempted to remove the pants from [the second victim] but was interrupted by
the arrival of a customer.” The trial court asked defendant whether he agreed that
happened. Defendant answered: “Yeah.” The trial court then asked whether defendant
admitted inflicting the injuries described by the prosecutor. Defendant answered: “Yes.”
After defense counsel agreed the prosecutor’s statement of the factual basis of the plea
was reasonably accurate, defendant pled guilty to two counts of assault with intent to
commit rape.
       Defendant does not dispute he was convicted of assault with intent to commit rape.
Assuming this crime can ever be committed other than by force, violence, duress, et
cetera, the plea colloquy provides more than sufficient evidence defendant’s crimes were
committed by force and violence. Nor does defendant persuade us the general rule
allowing the fact finder to look to the entire record of conviction should be abandoned in
the context of section 1170.126 determinations. We reached the same conclusion in
People v. Guilford (2014) 228 Cal.App.4th 651, and decline to belabor the point here.
(Id. at p. 660.) The trial court properly looked to the record of conviction in determining
defendant’s prior convictions for assault with intent to commit rape qualified as sexually
violent offenses.


                                              10
                                              III
                                     Right to Jury Trial
       Finally, defendant asserts he is entitled to a jury trial on the question of whether
his convictions for assault with intent to commit rape qualify as sexually violent offenses.
Not so.
       “The Sixth and Fourteenth Amendments to the United States Constitution preclude
a trial court from imposing a sentence above the statutory maximum based on a fact,
other than a prior conviction, not found true by a jury.” (People v. Lopez (2012) 208
Cal.App.4th 1049, 1064; see Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct.
2348, 147 L.Ed.2d 435; Blakely v. Washington (2004) 542 U.S. 296, 303, 124 S.Ct. 2531,
159 L.Ed.2d 403; Cunningham v. California (2007) 549 U.S. 270, 274-275, 127 S.Ct.
856, 166 L.Ed.2d 856.) In the context of resentencing under section 1170.126, “[t]he
maximum sentence to which [the petitioning inmate] is subject [is] the indeterminate life
term to which he [or she] was originally sentenced. While Proposition 36 presents him
[or her] with an opportunity to be resentenced to a lesser term, unless certain facts are
established, he [or she] is nonetheless still subject to the third strike sentence based on the
facts established at the time he [or she] was originally sentenced.” (People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303, italics added.) Accordingly, like the
situation in Dillon v. United States (2010) 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d
271, where the Supreme Court held sentence-reduction proceedings authorized by title 18
of the United States Code, section 3582(c)(2), “do not implicate the Sixth Amendment
right to have essential facts found by a jury beyond a reasonable doubt” (id. at pp. 828-
829), section 1170.126 “provides for a proceeding where the original sentence may be
modified downward. Any facts found at such a proceeding, . . . do not implicate Sixth
Amendment issues.” (Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305.)




                                              11
                                   DISPOSITION
     The judgment is affirmed.



                                                 HOCH   , J.



We concur:



        HULL          , Acting P. J.



       DUARTE        , J.




                                       12
