Filed 5/23/14 P. v. Pfeifer 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059189

v.                                                                       (Super.Ct.No. PEF001177)

DARRIN SCOTT PFEIFER,                                                    ORDER MODIFYING OPINION
                                                                         AND DENIAL OF PETITION
         Defendant and Appellant.                                        FOR REHEARING

                                                                         [NO CHANGE IN JUDGMENT]


         THE COURT

         The petition for rehearing is denied.

         The opinion herein, filed on May 1, 2014, is modified as follows:

         1. On page 4, line 20, delete the first sentence of the paragraph and replace with:

                            “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



                                                             1
      sentenced as a second strike offender unless the court determines that

      resentencing would pose an unreasonable risk of danger to public safety.

      [Citation.]” (Yearwood, supra, 213 Cal.App.4th at p. 168.)

2. On page 5, line 15, delete the entire paragraph and replace with:

             If the court finds the defendant satisfies the criteria under section

      1170.126, subdivision (e), then it shall resentence the defendant unless it

      determines that resentencing the defendant would pose an unreasonable risk

      of danger to public safety. (§ 1170.126, subd. (f).)

3. On page 6, line 8, delete the next two full paragraphs and replace with:

             The language of section 1170.126 indicates that a defendant is

      ineligible for resentencing if any of the offenses for which he is serving an

      indeterminate prison term is a serious and/or violent felony, even if one of

      the offenses is not a serious and/or violent felony. Section 1170.126,

      subdivision (a), provides that the resentencing provisions “apply

      exclusively to persons presently serving an indeterminate term of

      imprisonment . . . whose sentence under this act would not have been an

      indeterminate life sentence.” A person who committed at least one serious

      and/or violent felony would receive an indeterminate term of imprisonment

      under the Act. Furthermore, in submitting a petition for recall of sentence,

      a defendant must “specify all of the currently charged felonies, which

      resulted in the sentence under paragraph (2) of subdivision (e) of Section



                                      2
667 or paragraph (2) of subdivision (c) of Section 1170.12, or both . . . .”

(§ 1170.126, subd. (d).) The fact that the statute requires the petitioner to

list all of the current felonies resulting in an indeterminate life sentence

supports the conclusion that the court must consider all of the currently

charged felonies in determining eligibility for recall of sentence.

Here, in his petition, defendant was required to list all of his offenses that

resulted in his life sentence. (§ 1170.126, subd. (d).) He properly listed his

convictions for unlawful obstruction of a telephone line (§ 591), criminal

threats (§ 422), and assault with a deadly weapon (§ 245, subd. (a)(1)).

Consequently, the court considered all of these felonies in determining his

eligibility for resentencing. Defendant’s convictions for criminal threats

and assault with a deadly weapon rendered him ineligible for sentencing

under section 1170.126, subdivision (e)(1). (§ 1192.7, subd. (c)(31) &

(38).)

         We further note that the evidence of the voters’ intent in enacting the

Act support the conclusion that defendant should not benefit from the Act’s

provisions. “The Act was added by the initiative process. Ballot pamphlet

arguments have been recognized as a proper extrinsic aid in construing

voter initiatives adopted by popular vote. [Citations.]” (Yearwood, supra,

213 Cal.App.4th at p. 171.) “The ballot arguments supporting Proposition

36 were primarily focused on increasing public safety and saving money.”



                                 3
              (Ibid.) The Voter Information Guide stated that “‘Prop. 36 will help stop

              clogging overcrowded prisons with non-violent offenders, so we have room

              to keep violent felons off the streets’ . . . .” (Ibid.) “The Act’s proponents

              stated that ‘Criminal justice experts and law enforcement leaders carefully

              crafted Prop. 36 so that truly dangerous criminals will receive no benefits

              whatsoever from the reform.’ [Citation.]” (Ibid.)

                     Defendant is not a nonviolent offender who poses no risk to society.

              Because he was convicted of criminal threats and assault with a deadly

              weapon, he has proven himself to be one of the “truly dangerous criminals”

              the Act intended to keep in prison. Thus, it would have been inconsistent

              with the Act’s intent for the superior court to only consider his conviction

              for unlawful obstruction of a telephone line and not his other convictions,

              in determining his eligibility for resentencing.

                     We conclude the superior court correctly found that defendant was

              not eligible for resentencing under section 1170.126.1




       1  We note the People’s additional argument that defendant was disqualified from
resentencing relief because he was armed with a deadly weapon during the commission
of his offenses, including the unlawful obstruction of a telephone line. However, in light
of our conclusion ante, we decline to address this issue.


                                              4
       There is no change in the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                 HOLLENHORST
                                                           Acting P. J.


We concur:


KING
                         J.


MILLER
                         J.




                                             5
Filed 5/1/14 P. v. Pfeifer CA4/2 (unmodified version)

                      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,                                       E059189

v.                                                                       (Super.Ct.No. PEF001177)

DARRIN SCOTT PFEIFER,                                                    OPINION

         Defendant and Appellant.




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

Affirmed.

         Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
         Defendant and appellant Darrin Scott Pfeifer appeals after the trial court denied his

petition for resentencing under Penal Code section 1170.126, known as the Three Strikes

Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)).2

Defendant filed a notice of appeal on July 24, 2013. We affirm.

                               PROCEDURAL BACKGROUND

         On September 3, 1998, a jury convicted defendant of unlawful obstruction of a

telephone line (§ 591, count 1), criminal threats (§ 422, count 2), and assault with a

deadly weapon (§ 245, subd. (a)(1), count 3). The jury also found true the allegation that

defendant personally used a deadly or dangerous weapon in the commission of count 2.

(§ 12022, subd. (b).) Following a bifurcated trial on defendant’s priors, the court found

that he had two prior strike convictions (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i))

and that he served three prior prison terms (§ 667.5, subd. (b)). On October 30, 1998, the

court sentenced defendant under the three strikes law. The court imposed 25 years to life

on count 1, and imposed concurrent terms of 25 years to life on counts 2 and 3. The

court also imposed one year for each of the prison priors, plus one consecutive year on

the weapon use enhancement on count 2, for a total state prison term of 29 years to life.

The court subsequently stayed the sentence on the weapon use enhancement and reduced

the total term to 28 years to life.




         2   All further statutory references will be to the Penal Code, unless otherwise
noted.



                                                2
       On May 30, 2013, defendant filed an in pro. per. petition for resentencing under

section 1170.126. The court denied the petition since defendant had a conviction for

section 422, which made him ineligible for resentencing. (§ 1170.126, subd. (e)(1).) On

June 27, 2013, defendant filed a request for the court to reconsider his sentence. The

court denied the request.

       On July 12, 2013, defendant filed a notice of appeal.

                                       ANALYSIS

                                     I. Appealability

       As a threshold matter, we must address the People’s argument that the trial court’s

order is not appealable under People v. Leggett (2013) 219 Cal.App.4th 846 (Leggett) and

other cases. As both parties acknowledge, Courts of Appeal are split on the issue of

whether an order on a postjudgment petition pursuant to section 1170.126 is an

appealable order, and the issue is pending before the California Supreme Court. (See,

e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, reviewed granted July 31, 2013,

S211708 [court held it was not appealable]; People v. Hurtado (2013) 216 Cal.App.4th

941, review granted July 31, 2013, S212017 [court held it was appealable].) Even if we

were to conclude it was a nonappealable order, we could, in the interest of judicial

economy and because of uncertainty in the law, treat defendant’s appeal as a petition for

writ of habeas corpus or petition for writ of mandate. (See People v. Segura (2008) 44

Cal.4th 921, 928, fn. 4 [treating appeal from nonappealable order as petition for writ of

habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth



                                             3
Dist., Div. Two] [treating appeal as petition for writ of mandate due to uncertainty in the

law].) In any event, we will review defendant’s appeal.

       II. The Court Properly Denied Defendant’s Petition for Recall of Sentence

       Defendant argues that he is entitled to resentencing because his conviction on

count 1 for unlawful obstruction of a telephone line (§ 591) is not a serious or violent

felony, and it is not a disqualifying conviction. In other words, defendant is only seeking

resentencing on count 1, not on the other counts. We conclude that defendant is not

eligible for resentencing.

       A. Relevant Law

       The Three Strikes Reform Act of 2012 (the Act) amended sections 667 and

1170.12 and added section 1170.12. (People v. Yearwood (2013) 213 Cal.App.4th 161,

167.) The Act changed the requirements for sentencing a third strike offender to an

indeterminate term of 25 years to life. Under the original version of the three strikes law,

a recidivist with two or more prior strikes who was convicted of any new felony was

subject to an indeterminate life sentence. (Ibid.) “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.”

(Ibid.) If these exceptions do not apply, then the court is to sentence the defendant as a

second strike offender. (Id. at pp. 167-168.)

       Section 1170.126 “establishes a procedure for qualified inmates serving

indeterminate life sentences under the three strikes law to seek resentencing under the



                                                4
terms of the amended law.” (In re Martinez (2014) 223 Cal.App.4th 610, 616

(Martinez).) Section 1170.126, subdivision (e), states that an inmate is eligible for

resentencing if:

       “(1) The inmate is serving an indeterminate term of life imprisonment imposed

pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section

1170.12 for a conviction 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.

       “(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.

       “(3) 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.”

       “If the court finds the defendant is eligible under section 1170.126, subdivision

(e), then it shall resentence the defendant unless it determines that resentencing the

defendant would pose an unreasonable risk of danger to public safety.” (Martinez, supra,

223 Cal.App.4th at p. 616; see also § 1170.126, subd. (f).)

       B. The Court Properly Found That Defendant Was Ineligible for Resentencing

       Defendant essentially contends that, in determining his eligibility, the court should

have only considered his conviction on count 1 for unlawful obstruction of a telephone



                                              5
line. (§ 591.) He asserts that this offense is neither a serious felony under section

1192.7, subdivision (c), nor a violent felony under section 667.5, subdivision (c). It is

also not a disqualifying current conviction under section 1170.126, subdivision (e)(2).

Defendant further notes that his prior strike convictions are not disqualifying prior

convictions under section 1170.126, subdivision (e)(3). Defendant claims he should be

allowed to be resentenced on a single count under section 1170.126 simply because the

language of the Act does not bar such action. We disagree.

       In Martinez, supra, 223 Cal.App.4th 610, the defendant made the same argument

that defendant makes in the instant case. The defendant in Martinez was convicted of,

among other offenses, inflicting corporal injury on a spouse (§ 273.5, subd. (a)) and

spousal rape (§ 262, subd. (a)(1)). (Id. at p. 613.) The superior court denied his petition

to recall his sentence, noting that he was ineligible because his current offenses were

serious and violent felonies. (Ibid.) The defendant appealed the denial and argued that

the court should have only considered his conviction for inflicting corporal injury on his

wife (§ 273.5, subd. (a)). (Id. at p. 616.) He insisted that he was eligible for resentencing

since that offense was not a serious or violent felony, and his prior strikes did not

disqualify him under section 1170.126, subdivision (e)(3). (Id. at pp. 616-617.) The

court contemplated the issue of whether a court, in considering a petition for resentencing

under section 1170.126, “must consider all the offenses on which the petitioner was

sentenced or consider each offense and related term of imprisonment separately.” (Id. at

p. 617.) The defendant argued that the court must take the latter approach. (Ibid.) The



                                              6
court rejected the defendant’s position, holding that, pursuant to the statutory language of

section 1170.126, the trial court correctly considered all felonies under which the

defendant received an indeterminate sentence. (Id. at p. 619.) The court pointed out that,

in submitting a petition for recall of sentence, “a petitioner must disclose the offenses that

led to his prior strikes and all of the currently charged felonies that resulted in an

indeterminate life sentence under section 667, subdivision (e)(2) or section 1170.12,

subdivision (c)(2).” (Ibid.; see also § 1170.126, subd. (d).) Thus, the defendant was

required to list his convictions for inflicting corporal injury to a spouse and spousal rape

“because the court sentenced him to consecutive indeterminate life sentences for each of

those counts.” (Martinez, at p. 619.) The court reasoned that, “[i]f the court was not to

consider all the felonies that led to his sentence, there would be little need to require all of

them to be listed.” (Ibid.) The court further noted that spousal rape was one of the

enumerated felonies that section 1170.126, subdivision (e)(2), deemed to render a

petitioner ineligible for resentencing, if it was one of the offenses that led to the current

sentence. (Martinez, at p. 619.) The court thus held that the defendant’s conviction for

spousal rape made him ineligible for resentencing under section 1170.126, subdivision

(e)(1), as well as subdivision (e)(2). (Martinez, at p. 619.)

       Martinez is directly on point. Section 1170.126, subdivision (d), provides that a

petition for a recall of sentence “shall specify all of the currently charged felonies, which

resulted in the [indeterminate life] sentence.” (Italics added.) Accordingly, defendant

here was required to list all of his offenses that resulted in his life sentence—unlawful



                                               7
obstruction of a telephone line (§ 591), criminal threats (§ 422), and assault with a deadly

weapon (§ 245, subd. (a)(1)). He did so. The court then properly considered all of these

felonies. (See Martinez, supra, 223 Cal.App.4th at p. 620.) Defendant’s conviction for

criminal threats (§ 422) rendered him ineligible for sentencing under section 1170.126,

subdivision (e)(1). (§ 1192.7, subd. (c)(38).) Thus, the court properly denied his petition

for resentencing.3

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                HOLLENHORST
                                                                          Acting P. J.


We concur:


KING
                          J.


MILLER
                          J.




       3  We note the People’s additional argument that defendant was disqualified from
resentencing relief because he was armed with a deadly weapon during the commission
of his offenses, including the unlawful obstruction of a telephone line. However, in light
of our conclusion ante, we decline to address this issue.


                                             8
