Filed 2/9/15 P. v. Yost CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061731

v.                                                                       (Super.Ct.No. CR67330)

AARON CLAUDE YOST,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       Defendant and appellant Aaron Claude Yost appeals from an order denying his

petition for recall of his indeterminate life term under Penal Code section 1170.126,

subdivision (f).1 We will affirm the order.

                                               I

                                      BACKGROUND

       On May 2, 1997, a jury found defendant guilty of manufacturing

methamphetamine (Health & Saf. Code, § 11379.6, subd. (a); count 1) and possession of

pseudoephedrine (Health & Saf. Code, former § 11383, subd. (c); count 2). The jury also

found true that the amount of methamphetamine exceeded 10 gallons/three pounds

(Health & Saf. Code, § 11379.8, subd. (a)(2)) and 25 gallons/10 pounds (Health & Saf.

Code, § 11379.8, subd. (a)(3) [the weight enhancement]). In a bifurcated proceeding, the

trial court found true that defendant had suffered two prior serious and/or violent strike

convictions (former §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison

terms (§ 667.5, subd. (b)).

       On June 27, 1997, the trial court sentenced defendant to an indeterminate term of

25 years to life plus a determinate term of 10 years for the weight enhancement on

count 1 to state prison with credit for time served; count 2 was stayed pursuant to

section 654.




       1   All future statutory references are to the Penal Code unless otherwise stated.


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       Defendant subsequently appealed. In an unpublished opinion, this court ordered

the lesser weight enhancement stricken and remanded the matter to the trial court for

resentencing. On April 27, 1999, the trial court struck the lesser weight enhancement and

resentenced defendant to 25 years to life plus 10 years for the greater weight

enhancement on count 1.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act of 2012 (the Reform Act). Among other things, this ballot

measure enacted section 1170.126, which permits persons currently serving an

indeterminate life term under the “Three Strikes” law to file a petition in the sentencing

court seeking to be resentenced to a determinate term as a second striker. (§ 1170.126,

subd. (f).) If the trial court determines, in its discretion, that the defendant meets the

criteria of section 1170.126, subdivision (e), the court may resentence the defendant.

(§ 1170.126, subds. (f), (g).)

       On July 7, 2014, defendant filed a petition for resentencing under

section 1170.126 with supporting exhibits. The trial court denied the petition on

July 17, 2014, finding defendant ineligible for resentencing under section 1170.126,

subdivision (e), due to the weight enhancement. Defendant filed a timely notice of

appeal on August 15, 2014.




                                               3
                                              II

                                       DISCUSSION

       We appointed counsel to represent defendant on appeal. After examination of the

record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a

summary of the facts and potential arguable issues, and requesting this court conduct an

independent review of the record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so.

       As previously stated, on November 6, 2012, the voters approved Proposition 36,

the Reform Act, which amended sections 667 and 1170.12, and added section 1170.126.

The Reform Act changes the requirements to sentence a third strike offender to 25 years

to life in prison. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood).)

Under the Three Strikes law as it existed prior to the Reform Act (former §§ 667,

subds. (b)-(i); 1170.12), 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 his or her conviction of any new felony. The Reform Act 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. (Yearwood, at pp. 167-168,



                                              4
citing §§ 667, 1170.12; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,

1286.)

         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); Yearwood, supra, 213 Cal.App.4th at p. 168.)

         As the court explained in Yearwood, 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).) If the

prisoner satisfies these criteria, “the prisoner shall be resentenced as a second strike

offender ‘unless the court, in its discretion, determines that resentencing the petitioner

would pose an unreasonable risk of danger to public safety.’ (§ 1170.126, subd. (f).)”

(Yearwood, at p. 170.)




                                               5
       It is undisputed that defendant’s current offenses are “not defined as serious

and/or violent felonies” and that he otherwise meets the eligibility requirements of

subdivision (e)(1) of section 1170.126. The eligibility criterion in subdivision (e)(3) and

the dangerousness finding under subdivision (f) of section 1170.126 are likewise not at

issue in this case. The only eligibility criterion at issue is the second criterion set forth in

subdivision (e)(2) of section 1170.126, which provides in relevant part: “An inmate is

eligible for resentencing if: [¶] . . . [¶] (2) The inmate’s 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.”

In other words, if defendant’s third strike sentence was imposed for one of the

offenses listed in section 667, subdivisions (e)(2)(C)(i)-(iii) or section 1170.12,

subdivisions (c)(2)(C)(i)-(iii), he is ineligible for resentencing under section 1170.126.

       Section 667, subdivision (e)(2)(C)(i) provides: “The current offense is a

controlled substance charge, in which an allegation under Section . . . 11379.8 of the

Health and Safety Code was admitted or found true.” Since defendant’s third strike

conviction was a controlled substance charge (Health & Saf. Code, § 11379.6,

subd. (a) [manufacturing methamphetamine]) for which the Health and Safety Code

section 11379.8 weight enhancement was found true as to that count, his offense is one of

the offenses listed in section 667, subdivision (e)(2)(C)(i). Thus, under the plain

language of section 1170.126, subdivision (e)(2), he is ineligible for resentencing.



                                               6
      Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

                                            III

                                     DISPOSITION

      The order denying defendant’s petition to recall his sentence is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              RAMIREZ
                                                                                     P. J.
We concur:



HOLLENHORST
                          J.



McKINSTER
                          J.




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