Filed 12/22/14 P. v. Thigpen 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                             C074281

                   Plaintiff and Respondent,                                (Super. Ct. No. 07F04369)

         v.

CLYDE WILLIAM THIGPEN, JR.,

                   Defendant and Appellant.




         In April 2013, defendant Clyde William Thigpen, Jr., filed a petition to recall his
January 2008 indeterminate life sentence, pursuant to Penal Code section 1170.126.1 The
statute, enacted as part of a November 2012 initiative measure, provides relief under
narrow criteria from indeterminate life sentences imposed for recidivism.




1 Undesignated statutory references are to the Penal Code.



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       Defendant alleged that in January 2008, the trial court had sentenced him to state
prison for a term of 35 years to life: concurrent terms of 25 years to life for assault with a
deadly weapon (a car) and assault with force likely to inflict great bodily injury, which
the court imposed consecutive to a 10-year determinate term for recidivist findings.2
He further alleged that his commitment convictions did not come within exclusions in
section 1170.126, subdivision (e)(1) (“serious” and/or violent felonies) or subdivision
(e)(2) (cross-referencing other offenses specified in § 667, subd. (e)(2)(C)(iii)), and that
his prior convictions did not come within the exclusions in section 1170.126, subdivision
(e)(3) (cross-referencing offenses specified in § 667, subd. (e)(2)(C)(iv)). He claimed he
was thus entitled to resentencing to a determinate sentence of double the term otherwise
applicable to his convictions (i.e., the same sentence a defendant would receive under the
prospective amendments to the recidivist sentencing statutes enacted as part of the same
initiative). (§§ 1170.126, subd. (f); see 667, subd. (e)(1).) Defendant waived his
personal presence for resentencing.

       The trial court assigned the recall petition to the original trial judge, who was
available. (§ 1170.126, subd. (b).) The court found that assault with a deadly weapon
has been a serious felony since 2006, and as a result defendant was ineligible for
resentencing on that count under section 1170.126, subdivision (e)(1). It also interpreted
the statute as precluding resentencing on the other assault conviction, even though it was
not a serious or violent felony, because at least one of the commitment convictions was a
serious or violent felony. In addition, after its review of an exhibit from the underlying

2 As defendant has pursued relief from a final conviction pursuant to section 1170.126,
we do not need to address the contretemps regarding whether a defendant whose sentence
is not yet final on appeal is entitled to application of the revised sentencing provisions
without filing a petition for recall pursuant to section 1170.126. (People v. Yearwood
(2013) 213 Cal.App.4th 161, 168 (Yearwood) [no retroactive effect].) The issue is
presently pending in the Supreme Court. (See, e.g., People v. Conley (2013)
215 Cal.App.4th 1482, review granted Aug. 14, 2013, S211275.)


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trial and the transcript of the preliminary hearing (the trial transcripts not being available
at the time of the recall proceeding), the trial court offered its opinion it was “reasonably
probable” that it would find defendant had been armed with a deadly weapon or intended
to inflict great bodily injury during the commission of the second assault offense, and
therefore defendant would be ineligible in any event for resentencing on that count under
subdivision (e)(2) of the statute. “However . . . , the court at this time need not attempt to
obtain the trial transcripts and make this specific finding” in light of its ruling that the
first assault conviction rendered defendant ineligible for resentencing as to either count.
It therefore denied the petition without a hearing. Defendant appealed.

       The parties dispute whether the order denying defendant’s recall petition is
appealable. On the merits, defendant asserts that he can be resentenced on an eligible
commitment conviction even if other commitment convictions are ineligible. He also
raises numerous arguments in connection with the dictum in the trial court’s order about
the “likely” findings regarding the conviction for assault with force likely to inflict great
bodily injury, including a claim that section 654 requires us to stay this count.3

       In Teal v. Superior Court (2014) 60 Cal.4th 595 (Teal), our Supreme Court
recently concluded that a ruling on a section 1170.126 petition is appealable, which lays
the first issue to rest. On the merits, we conclude the trial court correctly resolved the
interpretive issue of defendant’s eligibility for resentencing under the statute.        The
facts underlying defendant’s convictions are not relevant to the issues on appeal, and we




3 Contrary to defendant’s assertion in his reply brief, the People’s unaccountable failure
to respond to this argument does not “forfeit” opposition to it. (People v. Hill (1992)
3 Cal.4th 959, 995, fn. 3; Wall Street Network, Ltd. v. New York Times Co. (2008)
164 Cal.App.4th 1171, 1177-1178, fn. 3; Cal. Const., art. VI, § 13.)


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shall omit them as a result.4 We also do not need to add any additional procedural facts
from the present proceeding beyond those described in this introduction.

                                       DISCUSSION
       We do not think that the plain language of section 1170.126 can reasonably be
construed to allow a defendant with a hybrid indeterminate life sentence—i.e., one
consisting of terms for both qualifying and disqualifying offenses—to be eligible for
resentencing per offense, rather than evaluating eligibility on the basis of the judgment
as a whole. The statute declares its intent to apply only to “persons presently serving
an indeterminate term of imprisonment . . . whose sentence . . . would not [be] an
indeterminate life sentence” under the 2012 amendments to section 667 (§ 1170.126,
subd. (a), italics added); significantly, this qualification does not specify the individual
terms of which the sentence as a whole is comprised. Again, with respect to the
substantive criteria for eligibility, it is conditioned on the “current sentence” (§ 1170.126,
subd. (e)(2), italics added) (rather than “term” (id., subd. (e)(1))) not being imposed for
any of the offenses specified in subdivision (e)(2); it would thus appear a defendant
serving a current sentence that includes any life term for a disqualifying offense cannot
come within this condition. While subdivision (e)(1) might appear at first blush to focus
on individual life terms in determining eligibility (speaking of an indeterminate term of
life imprisonment that is not a result of a conviction for a felony or felonies involving
serious or violent offenses), that runs contrary to the plain statement of intent
in subdivision (a), which we must read together with the latter subdivision to give effect
to the intent underlying the statute as a whole. (Hassan v. Mercy American River
Hospital (2003) 31 Cal.4th 709, 715; Department of Health Services v. Civil Service
Com. (1993) 17 Cal.App.4th 487, 494-495.)


4 Defendant’s request for judicial notice of the record in his direct appeal is therefore
denied as irrelevant. (People v. Eubanks (2011) 53 Cal.4th 110, 129-130, fn. 9.)


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       Moreover, buttressing this plain language (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 279), the proponents of the initiative enacting the statute
emphasized saving money while protecting public safety: They argued it would “ ‘keep
dangerous criminals off the streets’ ” by making sure that “ ‘truly dangerous criminals
will [not] receive [any] benefits whatsoever.’ ” (Yearwood, supra, 213 Cal.App.4th at
p. 171.) A defendant who has committed one of the proscribed offenses does not become
any less dangerous in the eyes of the electorate on the basis of committing even more
felonies (even if they are eligible offenses).

       The recent decision in People v. Anthony (2014) 230 Cal.App.4th 1176 is in
accord with these points, though its precedential value may be ephemeral in light of the
Supreme Court’s grant of review in all previously published cases involving this issue.5
We thus do not belabor our analysis and will simply agree, pending our high court’s
ultimate resolution of the question.

       Defendant resorts to the oft-invoked “rule of lenity.” However, “this is a ‘tie-
breaking principle’ of statutory interpretation” that we apply only where evidence of
legislative intent “is in equipoise” as to which of alternate reasonable interpretations
should prevail. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339, fn. 6.) We have
not found anything equivocal in the intent expressed in the plain statutory language or the
arguments made in connection with the initiative. The rule of lenity consequently does
not have any role here. As a result, defendant’s commitment conviction for assault with a
deadly weapon precluded resentencing on the other assault count.



5 People v. Hubbard (2014) 228 Cal.App.4th 1442, review granted and briefing deferred
Oct. 29, 2014, S221541; In re Machado (2014) 226 Cal.App.4th 1044, review granted
July 30, 2014, S219819; Braziel v. Superior Court (2014) 225 Cal.App.4th 933, review
granted July 30, 2014, S218503; In re Martinez (2014) 223 Cal.App.4th 610, review
granted and briefing deferred on unrelated issue May 14, 2014, S216922.


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       We do not need to reach defendant’s remaining multiple contentions regarding the
other assault count for two reasons. In light of People v. Anthony, supra,
230 Cal.App.4th 1176, and our conclusion above, they are moot. Moreover, the order
does not actually make any factual findings regarding the other count; it merely suggests
that the findings were likely if necessary. We therefore do not have any occasion to
consider if such findings need to be the subject of: pleading and proof either in the
underlying case or in the present proceedings, a jury finding as opposed to the court, or a
standard of proof greater than preponderance. We also do not need to consider poorly
framed claims that these findings resulted in a merger of some sort, or in the need to stay
punishment on the second conviction pursuant to section 654 (defendant not qualifying
for resentencing).

                                     DISPOSITION
        Defendant’s request for judicial notice, filed September 30, 2013, is denied. The
judgment is affirmed.




                                                           BUTZ               , Acting P. J.



We concur:



         MAURO              , J.



         HOCH               , J.




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BUTZ, Acting P. J., Concurring and Dissenting.


       “Naturally I concur in the majority opinion I have prepared for the court” (People
v. Jones (1998) 17 Cal.4th 279, 319 (conc. opn. of Mosk, J.)); “[o]bviously, I concur fully
in the majority opinion I have authored” (Cowan v. Superior Court (1996) 14 Cal.4th
367, 378 (conc. opn. of Chin, J.)).

       I write separately to explain my disagreement with the chosen disposition that my
colleagues favor. Notwithstanding the conclusion in Teal v. Superior Court (2014)
60 Cal.4th 595 that a defendant has a substantial right in the accurate determination of
eligibility such that a claim of an erroneous denial of a petition pursuant to section Penal
Code section 1170.126 is appealable, this leaves the question of the effect of an appellate
ruling that finds a defendant is indeed ineligible for resentencing under the statute. (Teal,
supra, 60 Cal.4th at p. 601.) I conclude this requires us to dismiss the appeal.

       A trial court does not have jurisdiction to entertain a petition for resentencing of an
ineligible defendant. (Cf. People v. Turrin (2009) 176 Cal.App.4th 1200, 1208; People v.
Chlad (1992) 6 Cal.App.4th 1719, 1725-1726 [both holding untimely motion to recall
sentence does not confer jurisdiction]; People v. Thornton (1965) 233 Cal.App.2d 1, 2
[petition for writ of coram nobis insufficient on face does not confer jurisdiction].) Thus,
if a defendant is in fact ineligible for resentencing, a denial of the petition does not affect
any substantial right, and an appellate holding of defendant’s ineligibility results in a lack
of appellate jurisdiction over the appeal. (Cf. Turrin, supra, 176 Cal.App.4th at p. 1208;
Chlad, supra, 6 Cal.App.4th at p. 1726; People v. Andersen (1994) 26 Cal.App.4th 1241,
1249 [if claimed instructional error prejudicial, it affects the defendant’s substantial rights
and then appellate court may consider merits initially on appeal under § 1259]; People v.
Mendez (1999) 19 Cal.4th 1084, 1099-1100; People v. Panizzon (1996) 13 Cal.4th 68,
89; People v. Hernandez (1992) 6 Cal.App.4th 1355, 1361 [all dismissing appeal where


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the defendant lacks certificate of probable cause after determining on merits it is subject
to § 1237.5]; see People v. Elder (2014) 227 Cal.App.4th 1308, 1318-1319 (conc. & dis.
opn. of Butz, J.) (Elder) [§ 1170.126].)

       We may nonetheless issue an advisory opinion to serve as precedent on the merits
of the denial of the petition, because we always have jurisdiction to determine appellate
jurisdiction, but the proper course in our disposition is to dismiss the appeal. (Rescue
Army v. Municipal Court (1946) 28 Cal.2d 460, 464; Abelleira v. District Court of
Appeal (1941) 17 Cal.2d 280, 302; see Elder, supra, 227 Cal.App.4th at pp. 1319-1320
(conc. & dis. opn. of Butz, J.).)




                                                           BUTZ               , Acting P. J.




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