Filed 4/22/15 P. v. Saunders CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065479

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD184170,
                                                                     SCD179948)
MARK MCLEAN SAUNDERS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

         Marianne Harguindeguy, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Eric A. Swenson, Kristine A. Gutierrez and

Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.

         Mark McLean Saunders appeals from the denial of his petition to modify his third

strike sentence pursuant to Proposition 36 (Pen. Code,1 § 1170.126). He contends the



1        All further statutory references are to the Penal Code unless otherwise specified.
trial court erred in finding he was ineligible for resentencing because of the nature of his

prior convictions. We disagree and affirm.

       In 1987, Saunders was convicted of three counts of vehicular manslaughter (§ 192,

subd. (c)(4)). In 2005, Saunders was convicted of driving under the influence with a

prior vehicular manslaughter conviction (Veh. Code, §§ 23152, subd. (a); 23626; 23540)

and failing to appear while on bail (§ 1320.5). He admitted three prior serious/violent

felony (strike) convictions (§ 667, subds. (b)-(i)). In 2005, Saunders was sentenced to

two consecutive terms of 25 years to life.

       In February 2014, the trial court denied Saunders's petition to modify his sentence

because the nature of his strike priors rendered him ineligible under section 1170.126,

subdivision (e)(3).

       Saunders has filed a timely notice of appeal.

       Saunders contends his prior convictions for vehicular manslaughter were neither

"serious" nor "violent" and thus he was eligible for resentencing under section 1170.126.

He also claims his counsel was ineffective for failing to raise this issue in the trial court.

We will address the merits of Saunders's arguments about the nature of his prior

convictions. Thus, we find it unnecessary to address the issue of ineffective assistance of

counsel.

       This appeal presents only a narrow question of law, therefore we will omit

discussion of the facts of the "current offenses" as well as the facts underlying the three

strike priors.



                                               2
                                          DISCUSSION

                                      A. Background

       In November 2012 the voters enacted the Three Strikes Reform Act (Proposition

36) to limit the types of felonies that will prospectively qualify a person for imposition of

the indeterminate life sentence required for a "third strike" conviction. In addition, the

measure created a resentencing mechanism for those previously sentenced to life terms

under the previous version of the three strikes law. (People v. Yearwood (2013) 213

Cal.App.4th 161, 167.) Thus, the statute redefines which crimes qualify in the future,

separately from the resentencing process it established.

       Under section 1170.126, subdivision (a), a person who was sentenced to a life

term for a "current offense" for which the person would not be eligible for such sentence

under the new statute, may petition the court for resentencing. The trial court first

determines eligibility and then if the inmate is eligible for resentencing, it should conduct

a hearing to determine whether resentencing is appropriate under all the provisions of the

statute. (§ 1170.126, subds. (a), (b).)

       Subdivision (e) of section 1170.126 also defines several classes of offenders who

are not eligible for resentencing. Before we discuss that section we address the nature of

Saunders's strike priors.




                                              3
       The 1987 convictions were for three counts of vehicular manslaughter under

section 192, subdivision (c)(4). The parties agree that since 1987, the Legislature

renumbered section 192, subdivision (c)(4) as section 191.5, subdivision (b).2

       Returning to the statutory definition of which persons are ineligible for

resentencing, section 1170.126, subdivision (e) provides in part: "An inmate is eligible

for resentencing if: [¶] . . . [¶] (3) The inmate has no prior convictions for any of the

offenses appearing in clause (iv) of paragraph (C) of paragraph (2) of subdivision (e) of

section 667 or clause (iv) of paragraph (2) of section 1170.12."

       Section 667, subdivision (e)(2(C) provides in part:

          "If a defendant has two or more prior serious and/or violent felony
          convictions as defined in subdivision (c) of Section 667.5 or
          subdivision (c) of Section 1192.7 that have been pled and proved,
          and the current offense is not a serious or violent felony as defined in
          subdivision (d), the defendant shall be sentenced pursuant to
          paragraph (1) of subdivision (e) unless the prosecutor pleads and
          proves any of the following: [¶] . . . [¶] (iv) The defendant suffered
          a prior serious and/or violent felony conviction, as defined in
          subdivision (d) of the section, for any of the following felonies: [¶]
          . . . [¶] (IV) Any homicide offense, including any attempted
          homicide, defined in sections 187 to 191.5, inclusive."

       Saunders acknowledges this section but argues essentially that we should ignore it

because of his various arguments that vehicular manslaughter is neither "serious" nor



2      Section 191.5, subdivision (b) provides: "Vehicular manslaughter while
intoxicated is the unlawful killing of a human being without malice aforethought, in the
driving of a vehicle, where the driving was in violation of Section 23140, 23152, or
23153 of the Vehicle Code, and the killing was either the proximate result of the
commission of an unlawful act, not amounting to a felony, but without gross negligence,
or the proximate result of the commission of a lawful act that might produce death, in an
unlawful manner, but without gross negligence."
                                              4
"violent" because the underlying conduct leading to the unlawful killing does not amount

to a felony.

                                        B. Analysis

       When we interpret a statute we first examine its language. (People v. Murphy

(2001) 25 Cal.4th 136, 142.) The words used are usually the most reliable indicator of

the legislative intent in the drafting of the statute. (People v. Leal (2004) 33 Cal.4th 999,

1007.) We must try, where possible, to give effect to every word and phrase in the

statute. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.)

       Saunders parses the various sections cited in the statute to support his claim that

vehicular manslaughter is not violent under section 667.5, subdivision (c) and not serious

under section 1192.7, subdivision (c), because the underlying conduct of criminal activity

supporting vehicular manslaughter is behavior "not amounting to a felony."

       As we have noted, Proposition 36 has both a prospective and retrospective feature.

The statute with regard to resentencing has undertaken to define various types of inmates

who, notwithstanding their current offense, are not eligible for relief under the act. The

language of section 1170.126 subdivision (e)(3) is absolutely clear, inmates convicted of

a homicide offense, including section 191.5, are not eligible for resentencing under the

act. Further, when Saunders was convicted of the current offense he admitted that the

three vehicular manslaughter convictions were qualifying strikes under section 667,

subdivisions (b) through (i). He did not challenge the nature of his strike priors in the

appeal from his 2005 convictions and sentence (People v. Saunders (Feb. 27, 2007,

D047541) [nonpub. opn.]). We agree with the People, Saunders should not be heard now

                                              5
to contend the prior convictions did not qualify as either serious or violent. (People v.

Bow (1993) 13 Cal.App.4th 1551, 1558.)

       In any event, the statute plainly establishes that prior convictions for violation of

section 191.5 (previously § 192) are disqualifying for purposes of resentencing under

Proposition 36.

       The trial court correctly denied the petition.

                                       DISPOSITION

       The judgment is affirmed.




                                                                    HUFFMAN, Acting P. J.

WE CONCUR:


                      HALLER, J.


                   O'ROURKE, J.




                                              6
