Filed 5/30/14
                               CERTIFIED FOR PUBLICATION




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




THE PEOPLE,                                                      C074341

                  Plaintiff and Respondent,              (Super. Ct. No. 05F1322)

        v.

STEPHEN CHRISTOPHER DUNCKHURST,

                  Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Shasta County, William D.
Gallagher, Judge. Affirmed.

      Deanna Lamb, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Kevin L.
Quade, Deputy Attorney General, for Plaintiff and Respondent.




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        Stephen Christopher Dunckhurst appeals from the denial of his petition to recall
his sentence under the Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, 1170.12,
1170.126;1 Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); hereafter the Act).
He contends the trial court erred in finding him ineligible to have his sentence for vehicle
theft recalled. The trial court’s finding of ineligibility was based on Dunckhurst’s
commission of a disqualifying offense, assault upon an inmate with a deadly weapon or
force likely to cause great bodily injury (§ 4500), while in prison. Dunckhurst argues it
was error to use his 2010 prison offense to disqualify him from recall of his 2005
sentence because the 2010 offense was not a “prior conviction,” as required under section
1170.126, subdivision (e)(3). We find Dunckhurst was ineligible for recall of his
sentence and affirm the judgment.
                                     BACKGROUND
        In 2005, the trial court sentenced Dunckhurst to an aggregate term of 33 years to
life in prison. The sentence consisted of a three strikes (§§ 667, subds. (b)-(i), 1170.12)
sentence of 25 years to life for unlawful driving or taking of a vehicle (Veh. Code,
§ 10851, subd. (a)) in case No. 05F1322, and an eight-year sentence (the three-year upper
term doubled plus two years for two prior prison term enhancements) for possession of a
deadly weapon by a prisoner (§ 4502) in case No. 05F4161.
        In 2010, the Kings County Superior Court sentenced Dunckhurst to a consecutive
term of 30 years to life for assault on an inmate with a deadly weapon or by means of
force likely to cause great bodily injury, with two strikes, and a great bodily injury
enhancement (§ 12022.7, subd. (a)). The sentence consisted of nine years to life tripled
plus three years for the enhancement.




1   Further undesignated statutory references are to the Penal Code.

                                              2
       In 2013, Dunckhurst filed a petition to recall his sentence on the 2005 vehicle
taking count. He claimed he met all three criteria for a sentence recall under the Act. His
petition did not mention his 2010 sentence for assault on an inmate.
       The trial court invited the People to respond to the petition to address whether
Dunckhurst was eligible for resentencing and if so whether he posed an unreasonable risk
to public safety. In their response, the People brought to the court’s attention his 2010
conviction for assault on an inmate which resulted in a life sentence and declared him
ineligible for resentencing.
       The court ruled that Dunckhurst was ineligible for resentencing because of his
“subsequent” Kings County conviction, which was punishable by life in prison.
       Dunckhurst appealed.2
                                       DISCUSSION
                                              I
                                           The Act
       The Act amended sections 667 and 1170.12 and added section 1170.126; it
changed the requirements for sentencing some third strike offenders. “Under the original
version of the three strikes law a recidivist with two or more prior strikes who is




2 The California Supreme Court has granted review on the issue of whether a defendant
has the right to appeal the trial court’s denial of his petition to recall his sentence under
the Act. (See Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted
July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted
July 31, 2013, S212017; People v. Leggett (2013) 219 Cal.App.4th 846, review granted
Dec. 18, 2013, S214264; People v. Wortham (2013) 220 Cal.App.4th 1018, review
granted Jan. 15, 2014, S214844.) The People treat Dunckhurst’s appeal as cognizable.
Even were we to conclude the order denying the petition was a nonappealable order, we
could and would, in the interest of judicial economy and because of uncertainty in the
law, treat Dunckhurst’s appeal as a petition for writ of mandate and reach the merits of
his claim. (See Drum v. Superior Court (2006) 139 Cal.App.4th 845, 853 [treating
appeal as petition for writ of mandate due to uncertainty in the law].)

                                              3
convicted of any new felony is subject to an indeterminate life sentence. The Act diluted
the three strikes law by reserving the life sentence for cases where the current crime is a
serious or violent felony or the prosecution has pled and proved an enumerated
disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike
offender. [Citations.] The Act 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.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168
(Yearwood).)
       “Thus, there are two parts to the 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 [citations]; 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 (Pen. Code, § 1170.126.)” (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292.) “The main difference
between the prospective and the retrospective parts of the Act is that the retrospective
part of the Act contains an ‘escape valve’ from resentencing for prisoners whose release
poses a risk of danger.” (Id. at p. 1293.)
       In this case, we direct our attention to the exceptions to eligibility for relief for a
defendant who had been sentenced to a three strike indeterminate life sentence for a
crime that is not a serious or violent felony. (These exceptions are the same as those that
disqualify a defendant who is being currently sentenced from the relief afforded by the
Act.) (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).)
       Section 1170.126, subdivision (e) contains three requirements for eligibility for
resentencing. First, the inmate’s current indeterminate term of life imprisonment cannot

                                               4
be for a serious or violent felony. (§ 1170.126, subd. (e)(1).) Second, the inmate’s
current sentence cannot have been imposed for any of certain crimes that, while not
defined as serious or violent felonies, are considered serious enough to justify the third
strike sentence. (§ 1170.126, subd. (e)(2).) These crimes involve substantial amounts of
controlled substances; are certain felony sex offenses; or involve the defendant using a
firearm or being armed with a firearm or weapon or having the intent to cause great
bodily injury. (§§ 667, subd. (e)(2)(C)(i)-(iii), 1170.12, subd. (c)(2)(C)(i)-(iii).) The
third requirement is that the inmate “has no prior convictions” for any of certain specified
felonies. (§ 1170.126, subd. (e)(3).)
       The specified disqualifying felonies contained in the third requirement fall into
eight categories. They include sexually violent offenses, certain sex acts on a child by
one 10 or more years older, lewd or lascivious acts on a child, certain homicide or
attempted homicide offenses, solicitation to commit murder, assault with a machine gun
on a peace officer or firefighter, possession of a weapon of mass destruction, and serious
or violent felonies punishable by life in prison or death. (§§ 667, subd. (e)(2)(C)(iv),
1170.12, subd. (c)(2)(C)(iv).)
       Here, it is undisputed that Dunckhurst’s 2005 conviction for unlawful taking of a
vehicle was not for a “serious or violent felony” as defined by section 1170.126,
subdivision (e)(1). Nor was it for any of the felonies that are listed in section 1170.126,
subdivision (e)(2).
       Therefore, Dunckhurst meets the first two requirements for resentencing under the
Act. The question here is whether he meets the third. It is undisputed that his 2010
conviction for assault on an inmate causing great bodily injury is a felony punishable by
life imprisonment. Dunckhurst disputes, however, that it is a “prior” conviction and
therefore disqualifying. We turn to that question.




                                              5
                                              II
                           Dunckhurst’s Contention and Analysis
       Dunckhurst contends it was error to conclude that he is ineligible for resentencing
on his 2005 conviction for unlawful taking of a vehicle due to his “subsequent” 2010
conviction for assault on an inmate. His argument focuses on the language of the trial
court’s denial order which characterized the 2010 Kings County conviction as a
“subsequent” conviction. He argues his assault conviction cannot be treated both as a
“subsequent” conviction and a “prior” conviction.
       Unlike Dunckhurst, we do not focus on the language of the trial court’s order
denying his petition. “In reviewing a trial court’s decision, we review the result, not the
reasoning.” (Florio v. Lau (1998) 68 Cal.App.4th 637, 653.) Rather, we focus on the
language of the Act, for the Act’s language determines whether Dunckhurst is eligible for
resentencing.
       The proper interpretation of a statute is a pure question of law for our independent
determination. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415,
432.) “ ‘Under well-established rules of statutory construction, we must ascertain the
intent of the drafters so as to effectuate the purpose of the law. [Citation.] Because the
statutory language is generally the most reliable indicator of legislative intent, we first
examine the words themselves, giving them their usual and ordinary meaning and
construing them in context.’ [Citation.]” (Mejia v. Reed (2003) 31 Cal.4th 657, 663.)
       As we have discussed, the Act has three requirements for eligibility for
resentencing. The first two concern the inmate’s current sentence, the one he seeks to
recall for resentencing. (§ 1170.126, subd. (e)(1) & (2).) The third requirement is: “The
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,



                                              6
subd. (e)(3).) In other words, the inmate cannot have a prior conviction for any of the
eight categories of serious or violent felonies described ante.
       Dunckhurst contends he is eligible for resentencing because he did not yet have a
disqualifying prior conviction at the time he received the sentence he now seeks to recall.
He argues the disqualifying conviction cannot be “prior” unless it preceded the
conviction that resulted in the indeterminate sentence under the three strikes law. We
disagree, and conclude that the disqualifying “prior” conviction need only occur before
the court decides whether the inmate is eligible for resentencing under the Act.
       In construing a statute, “[t]he words in question ‘must be construed in context,
keeping in mind the nature and obvious purpose of the statute . . . .’ [Citation.]” (West
Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 608.) The obvious
context of section 1170.126 is that an inmate is seeking resentencing by petitioning for
recall of sentence. The time period at issue encompasses the time after the original
sentencing, up to the time the inmate’s petition for recall of his original sentence is
decided. In setting forth the third requirement for eligibility, subdivision (e)(3) uses the
present tense: “The inmate has no prior convictions . . . .” The choice of verb tense is
considered significant in construing a statute. (Hughes v. Board of Architectural
Examiners (1998) 17 Cal.4th 763, 776; Matus v. Board of Administration (2009) 177
Cal.App.4th 597, 607.) “In particular, the Legislature’s use of present tense language has
often been interpreted as indicating an intent to establish ‘current’ requirements.”
(People v. Brewer (2001) 87 Cal.App.4th 1298, 1304, superseded by statute on other
grounds as noted in Good v. Superior Court (2008) 158 Cal.App.4th 1494, 1504, 1510,
fn. 13.) Here, the use of the present tense language“has”indicates the convictions must
have occurred only before the time the court decides the inmate’s petition for recall of
sentence. (See People v. Loeun (1997) 17 Cal.4th 1, 11 [use of the present tense indicates
that instances of current criminal conduct can satisfy the statutory requirement for a
“pattern of criminal gang activity”].)

                                              7
          This interpretation of section 1170.126, subdivision (e)(3) is consistent with the
voters’ intent in approving the Act. A key purpose of the Act was to enhance public
safety, which the Act sought to accomplish in part by preventing dangerous criminals
from being released early. (Yearwood, supra, 213 Cal.App.4th at pp. 171, 175.)
          Dunckhurst argues the term “prior conviction” in section 1170.126 must be given
the same meaning as in the three strikes law; the prior conviction must occur before the
offense for which the defendant is sentenced under three strikes. He relies on People v.
Flood (2003) 108 Cal.App.4th 504 (Flood). In Flood, this court held the three strikes law
did not apply where defendant committed the alleged strike in Washington after he
committed the California offense (for which he was being sentenced). (Id. at pp. 507-
508.) But Flood is of no assistance to Dunckhurst. At issue in Flood was the provision
that the three strikes law applies to persons who “commit a felony and have been
previously convicted of one or more serious and/or violent felony offenses.” (§ 667,
subd. (b).) There, the time for determining the previous conviction was the time
defendant committed the felony for which he was being sentenced; the strike had to be a
conviction that occurred before the commission of the current felony. (Flood, supra, at
pp. 507-508.) Here, we are concerned with the time of decision on Dunckhurst’s petition
for recall of sentence. His disqualifying felony conviction must occur prior to that time.
It did.
          At oral argument, Dunckhurst expanded on his argument. He contended that his
2010 conviction for assault in prison did not disqualify him from resentencing because he
had not yet begun to serve the life sentence on that conviction. This argument fails.
Under section 1170.126, subdivision (e)(3), defendant is ineligible for resentencing if he
suffered any of certain prior serious or violent felony convictions, including “any serious
and/or violent offense punishable in California by life imprisonment or death.” (§§ 667,
subd. (e)(2)(C)(iv)(VIII), 1170.12, subd. (c)(2)(C)(iv)(VIII).) A conviction for a
violation of section 4500, where the victim does not die within a year and a day, is

                                                8
punishable by life imprisonment without the possibility of parole for nine years.
(§ 4500.) Section 1170.126, subdivision (e)(3) requires only that the prior conviction be
punishable by life imprisonment or death, not that such sentence is currently being
served.
       The trial court properly found Dunckhurst was ineligible for resentencing under
section 1170.126, subdivision (e)(3). Because he is ineligible for resentencing, we need
not address his contentions regarding the second phase of the recall procedure that
determines whether the petitioner would pose an unreasonable risk of danger to public
safety. (§ 1170.126, subd. (f).)
                                     DISPOSITION
       The judgment is affirmed.



                                                       DUARTE                , J.



We concur:



      BLEASE                , Acting P. J.



      MURRAY                , J.




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