Filed 4/16/15 P. v. Bess CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049721

                   v.                                                  (Super. Ct. No. 96CF3190)

DANIEL EDWARD BESS,                                                    OPINION

     Defendant and Appellant.


                   Appeal from a postjudgment order after judgment of the Superior Court of
Orange County, Gregg L. Prickett, Judge. Affirmed.
                   Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton and Warren Williams, Deputy Attorneys General, for Plaintiff and
Respondent.


                                             *               *               *
              In 1997, a jury found defendant Daniel Edward Bess guilty of robbery
while armed with a firearm, plus second degree burglary and receiving stolen property.
The trial court subsequently determined he had suffered two prior convictions for robbery
and imposed two consecutive indeterminate terms of life imprisonment under the “Three
Strikes” law for the robbery and the burglary. (Pen. Code, §§ 667, subds. (b)-(i);
1170.12, all further statutory references are to this code.) It stayed punishment on the
receiving stolen property charge. This court affirmed his conviction and sentence in an
unpublished opinion. (People v. Bess (Mar. 30, 1999, G021682).)
              In 2014, defendant petitioned to have his indeterminate life term for the
burglary conviction recalled and to be resentenced under the Three Strikes Reform Act of
2012. (§§ 667, 1170.12, 1170.126; Voter Information Guide, Gen. Elec. (Nov. 6, 2012)
text of Prop. 36, § 6, pp. 109-110 (hereafter Reform Act).) The trial court granted the
prosecution’s motion to dismiss the petition, concluding defendant was not eligible for
relief. He appeals from this order. We conclude the trial court’s ruling was correct and
affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND


              We take the facts of defendant’s underlying conviction from our prior
opinion. One night, defendant and another person approached a man, pointed a gun at
him, and demanded money. The man gave them his wallet and the robbers drove off in a
Celica.
              Shortly thereafter a police officer on patrol saw defendant and another
person engaged in suspicious activity near a pickup truck. The two entered a nearby
Celica and, when the officer turned on his emergency lights, they sped away at a high rate
of speed. At some point, defendant and his confederate abandoned the Celica. The
police found defendant hiding nearby and discovered an automatic handgun in the same

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area. An inspection of the pickup truck determined that it had been forced open and was
missing two speakers. The speakers and the robbery victim’s wallet were found in the
Celica.


                                       DISCUSSION


1. The order dismissing defendant’s resentencing petition is appealable.
              When the parties prepared their appellate briefs, the question of whether an
order denying a petition for resentencing under section 1170.126 is appealable had not
been decided. The Supreme Court has now held the ruling is appealable as a
postjudgment order. (Teal v. Superior Court (2014) 60 Cal.4th 595, 601; § 1237, subd.
(b).) While here the trial court technically “dismissed” defendant’s petition, since its
decision was based on the conclusion he was not eligible for relief, the effect is the same
as a denial of the petition. We conclude the holding in Teal applies here as well.


2. Defendant is not entitled to resentencing on his burglary conviction.
              The trial court dismissed defendant’s resentencing petition on the two
grounds asserted by the prosecution; defendant received an indeterminate life sentence
for robbery, a serious and a violent felony, and he was armed in committing that crime.
On appeal, defendant concedes he is not eligible to be resentenced on the robbery
charge. Rather, he claims “the trial court erroneously concluded that the robbery
conviction . . . necessarily precluded it from granting [him] relief as to the second degree
burglary conviction.” We disagree.
              This case requires us to construe section 1170.126. In interpreting the
Reform Act’s provisions, it must be kept in mind that when construing voter-approved
laws “‘we apply the same principles that govern statutory construction.’” (Robert L. v.



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Superior Court (2003) 30 Cal.4th 894, 900; People v. Blakely (2014) 225
Cal.App.4th 1042, 1053.)
              “‘“[W]e turn first to the language of the statute, giving the words their
ordinary meaning.”’” (Robert L. v. Superior Court, supra, 30 Cal.4th at p. 901; People v.
Brimmer (2014) 230 Cal.App.4th 782, 790.) “‘We must give the statutory provisions at
issue a reasonable and common sense interpretation, consistent with the apparent purpose
and intention of the Legislature. If possible, we will give significance to the plain
meaning of every word, phrase, and sentence of a statute in pursuance of the legislative
purpose, harmonizing the various parts of an enactment by considering each particular
clause or section in the context of the statutory framework as a whole.’” (People v.
Brimmer, supra, 230 Cal.App.4th at p. 791; Robert L. v. Superior Court, supra, 30
Cal.4th at p. 903 [“‘Statutory language . . . must be construed in the context of the entire
statute of which it is a part, in order to achieve harmony among the parts’”].)
              Subdivision (e) of section 1170.126 lists three prerequisites that must be
shown to find an inmate “eligible for resentencing” under the Reform Act. The first
requirement is that the petitioner “is serving an indeterminate term of life imprisonment
imposed . . . for a conviction of a felony or felonies that are not defined as serious and/or
violent felonies.” (§ 1170.126, subd. (e)(1), italics added.) This subparagraph applies to
a person who has been convicted of more than one felony and requires that each of the
offenses for which a “term of life imprisonment” has been imposed does not constitute a
serious or a violent felony. (Italics added.)
              Defendant received two indeterminate life terms. One was for burglarizing
the pickup truck. Under the current “Three Strikes” law a conviction for this offense,
standing alone, would not justify imposing an indeterminate life term. But defendant’s
sentence included an indeterminate life term for the robbery. That offense was then and
is now both a serious and a violent felony. (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19).)



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The term imposed for the latter crime precludes defendant from satisfying subdivision
(e)’s first eligibility requirement.
               The same is true for the second requirement. It states an inmate is eligible
for resentencing only if his or her “current sentence was not imposed for any of the
offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2)
of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e)(2), italics
added.) The latter two statutes list factors that preclude a convicted person with two prior
serious or violent felony convictions from taking advantage of the Reform Act even
where he or she has been convicted of a nonqualifying third felony. One disabling factor
is where “the defendant used a firearm” or “was armed with a firearm” “[d]uring the
commission of the current offense.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd.
(c)(2)(C)(iii).)
               The meanings of the italicized word are important in interpreting the scope
of the Reform Act. In the criminal law context, the word “sentence” usually means the
entire punishment imposed on a convicted defendant. (Black’s Law Dict. (9th ed. 2009)
p. 1485, col. 1 [defining “sentence” to mean “[t]he judgment that a court formally
pronounces after finding a criminal defendant guilty; the punishment imposed on a
criminal wrongdoer”]; § 1237, subd. (a) [“sentence . . . shall be deemed to be a final
judgment” for purpose of appeal]; People v. McDonough (1961) 198 Cal.App.2d 84, 86
[“the words ‘sentence’ and ‘judgment’ are interchangeable” and “mean the same thing”],
italics added.) Applied to this case, defendant’s “current sentence” includes a term of
imprisonment imposed for a robbery the jury expressly found he committed while armed
with a firearm. (§ 1170.126, subd. (e)(2), italics added.) Defendant’s 1997 conviction
cannot satisfy section 1170.126, subdivision (e)’s second eligibility requirement.
               This construction of section 1170.126 is consistent with the statute’s
express intent. Subdivision (a) of the statute declares the “resentencing provisions . . . are

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intended to apply exclusively to persons presently serving an indeterminate term of
imprisonment . . ., whose sentence under this act would not have been an indeterminate
life sentence.” (Italics added; People v. Chubbuck (2014) 231 Cal.App.4th 737, 741
[section 1170.126 “create[s] 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”].) Because of his
robbery conviction, even under the current version of the Three Strikes law, defendant
would still have received “an indeterminate life sentence.” (§ 1170.126, subd. (a).)
Thus, section 1170.126 does not provide for relief in this case.
              We conclude the trial court did not err in dismissing defendant’s petition to
recall the 1997 sentence and consider resentencing him on the burglary.


                                      DISPOSITION


              The postjudgment order is affirmed.




                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



IKOLA, J.



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