Filed 4/19/16 P. v. Oubichon CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C073519

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62009078)

         v.

RAYMOND LIONEL OUBICHON,

                   Defendant and Appellant.




         Defendant Raymond Lionel Oubichon appeals from the trial court’s order denying
his petition for recall of sentence under Proposition 36, the Three Strikes Reform Act of
2012 (TSRA), Penal Code section 1170.126. (Teal v. Superior Court (2014) 60 Cal.4th
595, 601 [denial of petition is appealable]; unless otherwise set forth, statutory references
that follow are to the Penal Code.) Defendant argues that treating his current conviction
for attempted criminal threat (§§ 422/664) as a serious felony -- rendering him ineligible
for resentencing -- violates ex post facto principles because his crime was not on the

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statutory list of serious felonies when he committed it. Defendant makes other
arguments, but we need not address them because we conclude his current conviction
renders him ineligible for section 1170.126 resentencing.

                                FACTS AND PROCEEDINGS

       We granted defendant’s request for judicial notice and take the underlying facts
from our unpublished opinion in case No. C036914 (Oubichon I), nonpublished opinion
filed December 9, 2002.
       On May 2, 1999, defendant got into an argument with his wife Felisa Pena at their
home. She went to the apartment manager and said defendant tried to choke or hit her.
The manager called police. Pena told police defendant said that “if the cops didn’t get
him, he would come back and kill her.” Defendant left the apartment complex but
returned that night. Pena testified she was not scared when defendant returned. She
made him sleep on the couch because she was angry. He had not laid a hand on her since
1994, when he struck her in the head.
       The couple’s cohabitation violated defendant’s parole condition prohibiting him
from having any contact with her since she was the victim of a terrorist threat conviction
that had sent defendant to prison in 1995.
       In May 2000, a jury found defendant guilty of making a criminal threat. The trial
court found defendant had three prior serious felony convictions (§ 1170.12, subds. (a)-
(d)) -- a 1979 juvenile adjudication for murder (§ 187), a 1986 assault with a deadly
weapon (§ 245, subd. (a)), and a 1989 second degree robbery (§ 211) -- and sentenced
him to a term of 25 years to life, plus two years for prior prison term enhancements,
under the three strikes law.
       On appeal, we reversed the criminal threat conviction due to insufficient evidence
that the victim was afraid. We found the evidence sufficient for attempted criminal
threat. In response to defendant’s challenge to using the prior murder and assault with


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deadly weapon as strikes, we found sufficient evidence that the assault qualified as a
prior serious felony conviction under the three strikes law. But we found the evidence
insufficient to support a similar finding regarding the 1979 juvenile adjudication for
murder, because there was no evidence of how old defendant was when he committed the
murder, and section 667, subdivision (d)(3) allows a juvenile adjudication to constitute a
prior felony conviction for purposes of sentence enhancement only if the juvenile was 16
or older when he committed the offense. The evidence -- a rap sheet -- showed only that
defendant was age 19 when arrested for the murder.
       We reversed the judgment and gave the prosecution 60 days to elect to retry
defendant for criminal threat on new evidence. If the prosecution elected not to retry
defendant, we directed entry of judgment of conviction of attempted criminal threat. If
the prosecution did not present additional evidence of the 1979 murder, the judgment was
to reflect two, not three, prior serious felony convictions. In any event, the trial court was
to conduct a new sentencing hearing.
       The prosecution elected not to retry the underlying offense or the prior conviction.
       The case came back to us for a second appeal (Oubichon II; C045022, unpub. opn.
filed Nov. 9, 2004) after the new sentencing hearing, in which the trial court denied
defendant’s request to strike one of the two prior conviction enhancements in the interest
of justice. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) At the
hearing, defense counsel recounted defendant’s criminal history. In 1986, he was
convicted of assault with a deadly weapon for cutting a man in a bar fight. Defendant
served 90 days in jail. His 1989 robbery conviction was for grabbing cash from a
patron’s hand in a liquor store. Defendant spent most of the 1990’s in prison but
maintained his parole violations were for one drug conviction, technical violations, and
another offense against Pena.
       The trial court stated that, while it could not consider the juvenile murder
proceedings as a strike, it could consider defendant’s entire record when determining

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whether to exercise discretion. The court noted defendant was also sent to the CYA for a
1978 burglary adjudication. The strikes occurred in 1986 and 1989, followed by another
assault conviction in 1990. In 1990, defendant transported a controlled substance. In
1995, defendant was sentenced to prison for threatening his wife. He violated parole in
1991, 1997, 1998, and 1999. The court concluded it would be an abuse of discretion to
strike a serious felony conviction. The court sentenced defendant to 25 years to life for
the attempted criminal threat and two years for prior prison terms.
       In the second appeal, we held the trial court did not abuse its discretion in
declining to dismiss a prior strike, in light of defendant’s past criminal history and
continuing criminal involvement. (Oubichon II, slip opn. pp. 5-7.)
       On January 15, 2013, defendant filed a petition for recall of sentence under section
1170.126, asserting his current offense was not a serious or violent felony. The trial court
issued an initial order on February 20, 2013, denying resentencing on the ground that the
1978 murder rendered defendant ineligible. Defendant filed a motion asking the court to
“set aside” the denial of resentencing. The record does not reflect the prosecution’s
position.
       On March 19, 2013, the trial court issued an “ORDER RE: RECONSIDERATION
OF PRIOR ORDER DENYING PETITION FOR RESENTENCING,” stating, “There
are two reasons why the defendant does not qualify for relief under section 1170.126. [¶]
The petition must be denied first because in his underlying criminal action, defendant was
convicted of an attempted violation of section 422, making a criminal threat, a serious
felony. Section 1192.7(c)(38) lists the making of a criminal threat a serious felony.
Section 1192.79(c)(39) provides that any attempt to commit a listed serious felony is also
a serious felony. Section 1170.126(b) expressly provides that resentencing is available
only to inmates sentenced as third strike offenders for felonies not listed as serious or
violent crimes. Defendant’s underlying crime disqualifies him from relief under section
1170.126.” (Orig. emphasis.)

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       The court went on to give the second reason, related to the murder, which we need
not address because the first reason renders defendant ineligible for resentencing.

                                          DISCUSSION

            The Current Offense Makes Defendant Ineligible for Resentencing
       This appeal presents a question of law, which we review de novo. (People v.
Cromer (2001) 24 Cal.4th 889, 894.)
       Section 1170.126, subdivision (b), provides: “Any person serving an
indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law]
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 . . . or . . . to request
resentencing in accordance with the provisions of [the Three Strikes law] as those statutes
have been amended by the act that added this section [Proposition 36].” (Italics added.)
       When defendant committed the offense of attempted criminal threat in 1999, it
was not listed as a serious or violent felony. It became a serious felony in March 2000,
when Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998,
added criminal threats to section 1192.7’s list of serious felonies. (People v. Johnson
(2015) 61 Cal.4th 674, 684 (Johnson).) Thus, since 2000, section 1192.7, subdivision
(c)(38) makes a “criminal threat[], in violation of Section 422” a serious felony, and
subparagraph (39) makes “any attempt to commit a crime listed in this subdivision other
than an assault” a serious felony.
       Defendant argues an interpretation of Proposition 36 that would characterize as a
serious felony a current offense that was not characterized as a serious felony when
committed, would violate ex post facto principles. We disagree.
       The ex post facto clause of the federal Constitution (U.S. Const., art. I, § 10)
prohibits legislation that (1) punishes as a crime an act that was not criminal when it was


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committed, (2) makes more burdensome the punishment for a crime after its commission,
or (3) deprives a defendant of any defense available according to law at the time the
charged crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42 [111
L.Ed.2d 30].) The ex post facto clause is “aimed at laws that ‘retroactively alter the
definition of crimes or increase the punishment for criminal acts.’ ” (California Dept. of
Corrections v. Morales (1995) 514 U.S. 499, 504 [131 L.Ed.2d 588].) The same
interpretation applies to California’s ex post facto clause (Cal. Const., art. I, § 9).
(People v. Grant (1999) 20 Cal.4th 150, 158.) As we said in In re Efstathious (2011)
200 Cal.App.4th 725, “For a criminal law to be ex post facto, (1) it must be retrospective,
that is, it must apply to events occurring before its enactment, and (2) it must
disadvantage the offender affected by it; that is, it must alter the definition of criminal
conduct or increase the punishment for a crime. [Citations.] . . . ‘The critical question
. . . is whether the law changes the legal consequences of acts completed before its
effective date.’ [Citation.]” (Id. at p. 729.)
       Applying the definitions of serious and violent felonies as they existed on
November 7, 2012, to determine eligibility for resentencing does not punish an act that
was not criminal when committed, does not make the punishment for the act more
burdensome than it was when committed, and does not deprive defendant of any defense.
Defendant’s sentence is no more severe than the punishment authorized by law at the
time he committed his crime.
       While this appeal was pending, the California Supreme Court issued its opinion in
Johnson, supra, 61 Cal.4th 674, which held as a matter of statutory interpretation that,
for purposes of section 1170.126 resentencing in cases where the current crime was
committed before Proposition 36’s effective date of November 7, 2012, the classification
of the current offense is based on the law in effect on November 7, 2012, not the law in
effect when the crime was committed. (Johnson, supra, 61 Cal.4th at p. 679.) “[T]he use
of the present tense in the provisions describing the nature of the current conviction

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reflects an intent that the nature of the current conviction as serious or violent is based on
its characterization as of the date of resentencing. In addition, the parallel structure of the
Act’s sentencing and resentencing provisions appears to contemplate identical sentences
in connection with identical criminal histories, unless the trial court concludes that
resentencing would pose an unreasonable risk to public safety. Finally, interpreting the
scheme to allow resentencing despite the current classification of the offense as serious or
violent is not supported by the arguments set forth in the ballot pamphlet. For these
reasons, we hold that for purposes of resentencing under section 1170.126, the
classification of the current offense as serious or violent is based on the law as of
November 7, 2012, the effective date of Proposition 36.” (Johnson, supra, 61 Cal.4th at
p. 687.)
       Since Johnson was decided as a matter of statutory interpretation (id., supra,
61 Cal.4th at p. 682) rather than ex post facto principles, it does not dispose of
defendant’s appeal. However, defendant fails to show an ex post facto violation.
       Defendant overstates authority as holding that the critical determinant in ex post
facto analysis is whether “the system itself ha[s] been altered to the prisoner’s detriment.”
(In re Ramirez (1985) 39 Cal.3d 931, 936; Weaver v. Graham (1981) 450 U.S. 24 [67
L.Ed.2d 17] (Weaver).) Weaver found an ex post facto violation in a Florida statute that
reduced the amount of credits prisoners could earn going forward. (Weaver, supra, 450
U.S. at p. 29.) The Florida statute was retrospective because it changed the “legal
consequences” of crimes committed before its effective date and was part of the
prisoner’s “punitive conditions” even though not technically part of his sentence. (Id. at
pp. 31, 32.) And the new statute disadvantaged the prisoner because he earned less credit
for the same conduct and had to perform in a superior fashion for awards that were
discretionary in any event. (Id. at p. 35.) It did not matter that the prisoner had control of
his own behavior and could avoid the increased sanctions of the new plan. (Id. at p. 33.)
Ramirez, supra, 39 Cal.3d 931, held that a new statutory plan reducing sentence credits

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(§§ 2931-2932) was not an ex post facto violation when applied to existing prisoners.
The Ramirez court felt compelled by Weaver to hold that the new plan disadvantaged the
prisoner, even though the disadvantage stemmed from the prisoner’s own actions. (Id. at
pp. 935-936.) The critical determinant is whether “the system itself ha[s]been altered to
the prisoner’s detriment.” (Id. at p. 936.) However, Ramirez went on to hold that,
although the new plan disadvantaged the prisoner, it was not retrospective and therefore
did not violate the ex post facto clauses, since the increased penalties were imposed
solely because of prison misconduct occurring after the new plan became effective and
were not attributable to the original crime. (Id. at pp. 936-938.)
       Defendant’s reliance on Weaver is questionable. Defendant fails to acknowledge
the United States Supreme Court’s more recent pronouncement (in 1995) that “Weaver
[and other cases] suggested that enhancements to the measure of criminal punishment fall
within the ex post facto prohibition because they operate to the ‘disadvantage’ of covered
offenders. [Citations.] But that language was unnecessary to the results in those cases
and is inconsistent with the framework developed in Collins v. Youngblood[, supra,] 497
U.S. [at p.] 41 . . . .) After Collins, the focus of the ex post facto inquiry is not on
whether a legislative change produces some ambiguous sort of ‘disadvantage,’ nor . . . on
whether an amendment affects a prisoner’s ‘opportunity to take advantage of provisions
for early release,’ . . . but on whether any such change alters the definition of criminal
conduct or increases the penalty by which a crime is punishable.” (California Dept. of
Corrections v. Morales, supra, 514 U.S. at p. 506, fn. 3, orig. italics [California statute
amending parole procedures to decrease frequency of parole suitability hearings did not
violate ex post facto clause as applied to prisoner who was convicted before
amendment].)
       Under this standard, defendant’s ex post facto claim fails. The provisions of
section 1170.126 and the listing of crimes therein that constitute a serious felony do not
“alter the definition” of defendant’s criminal conduct nor do they “increase[ ]the penalty

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by which [his] crime is punishable.” (California Dept. of Corrections v. Morales, supra,
514 U.S. at p. 506, fn. 3.) The statute’s provisions only make defendant ineligible for a
reduction of his original sentence, that is, ineligible for a more lenient disposition of his
original crime.
       None of defendant’s other cited authorities establish an ex post facto violation in
this case. Defendant cites People v. Ringo (2005) 134 Cal.App.4th 870, which said,
“Based upon the plain language of section 667, subdivision (a) [five-year sentence
enhancement for any person convicted of serious felony who previously has been
convicted of a serious felony], the crucial date for determining if a prior conviction
qualifies as a serious felony is the date of the charged offense.” (Id. at p. 884.) However,
Ringo expressly stated the issue was one of statutory interpretation, not ex post facto
principles, because the defendant conceded there was no ex post facto problem. (Ringo,
supra, 134 Cal.App.4th at p. 882, fn. 8.)
       Defendant cites People v. Alvarez (2002) 100 Cal.App.4th 1170, which found an
ex post facto violation because the punishment under the one-strike law “exceeded the
punishment appellant could have received under the applicable law when the [crime was]
committed.” (Id. at p. 1178.) Defendant also cites People v. Williams (1987)
196 Cal.App.3d 1157, which concluded the ex post facto clause barred application of
amendments that would add 10 years to the sentence of a prisoner who committed his
crimes before the amendments. Here, in contrast, the resentencing scheme adds nothing
to defendant’s sentence.
       Defendant cites People v. James (2001) 91 Cal.App.4th 1147, where the appellate
court found no ex post facto violation. That case involved application of Proposition 21’s
addition of offenses to the list of serious felonies for three strikes sentencing purposes, in
a case where the current offenses were committed March 17, 2000 -- nine days after
Proposition 21 took effect -- but the prior convictions were committed before it took
effect. (Id. at p. 1149.) Though Proposition 21 made the designations retroactive, the

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trial court struck prior conviction allegations for offenses committed before Proposition
21’s effective date, on ex post facto grounds. The appellate court reversed, holding there
was no ex post facto violation. In light of Proposition 21’s purpose to increase public
safety, the determination whether a prior conviction alleged as a serious felony is a prior
strike must be based on whether the prior offense resulting in that conviction was a
serious felony within the meaning of the three strikes law on the effective date of
Proposition 21. (Id. at p. 1151.) Defendant also cites Gonzales v. Superior Court (1995)
37 Cal.App.4th 1302, which held -- in a prosecution for offenses committed after the
effective date of the three strikes law (§ 667, subd. (d)(1)) -- that the statute applied to
prior felony convictions which fit the definition of serious or violent felonies on the
statute’s effective date, even though they were not on the list at the time of the prior
convictions.
       Defendant thinks these cases stand for the proposition that “the ex post facto
clauses are inapplicable to prior felony offenses, but apply to ‘currently charged’ ones.”
However, neither James nor Gonzales considered or decided the matter at issue in the
case before us.
       We conclude defendant is ineligible for section 1170.126 resentencing because his
current offense is a serious felony. In light of our conclusion, we need not address
defendant’s other contentions.




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                                     DISPOSITION

      The order denying defendant’s petition for section 1170.126 resentencing is
affirmed.



                                                     HULL                 , J.



We concur:



      NICHOLSON           , Acting P. J.



      BUTZ                , J.




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