Filed 7/10/17 P. v. Hurtado CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

PAUL DANIEL HURTADO,

Defendant and Appellant.
H043572
(Santa Clara County
Super. Ct. No. CC247063)
I. INTRODUCTION
Defendant Paul Daniel Hurtado appeals after the trial court denied his Proposition 47 petition for resentencing (Pen. Code, § 1170.18, subd. (a)) as to four forgery convictions (§ 470, subd. (d)) he suffered in 2003. The trial court found that defendant was disqualified from Proposition 47 relief because he has a prior conviction of first degree residential burglary for which he received an indeterminate life sentence under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court relied on section 1170.18, subdivision (i), which precludes resentencing for a person with one or more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv). The specified disqualifying offenses include “[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death.” (§ 667, subd. (e)(2)(C)(iv)(VIII).)
Under the rationale of this court’s opinion in People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez), we conclude that defendant was not disqualified from resentencing under section 1170.18, subdivision (i). Although defendant’s prior first degree burglary conviction was punished by an indeterminate life term under the Three Strikes law, first degree burglary itself is not “[a] serious and/or violent felony offense punishable in California by life imprisonment or death” under section 667, subdivision (e)(2)(C)(iv)(VIII). We will therefore reverse the order denying defendant’s petition for resentencing and remand for a determination of whether resentencing defendant for his conviction of forgery “would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)
II. BACKGROUND
In 2003, defendant was convicted of eight counts of first degree burglary (§§ 459/460, subd. (a)), four counts of forgery (§ 470, subd. (d)), and one count each of vehicle theft (Veh. Code, § 10851, subd. (a)) and possession of stolen property (§ 496, subd. (d)). Defendant admitted allegations that he had two prior convictions that qualified as strikes under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)).
For one of the burglary convictions (count 2), defendant was sentenced to an indeterminate term of 25 years to life pursuant to the Three Strikes law. The trial court dismissed the strike allegations as to the remaining felony counts and imposed determinate terms for those counts, which included concurrent 16-month terms for the forgery counts.
On November 4, 2014, the electorate passed Proposition 47, which went into effect the next day. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reclassified certain drug- and theft-related offenses as misdemeanors, except where the defendant has one or more disqualifying prior convictions, which include the “super strike” offenses listed in section 667, subdivision (e)(2)(C)(iv). (See Rivera, supra, at p. 1092.) Relevant to this case, section 667, subdivision (e)(2)(C)(iv) lists “[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death.”
Section 473, which prescribes the punishment for forgery, was one of the statutes amended by Proposition 47. Subdivision (a) of section 473 now provides: “Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.”
Proposition 47 also added section 1170.18, which permits a person who is currently “serving a sentence” for a conviction of a reclassified offense to request to be resentenced to a misdemeanor (id., subd. (a)). Section 1170.18, subdivision (i) provides that resentencing is precluded for “persons who have one or more prior convictions” for an offense specified in section 667, subdivision (e)(2)(C)(iv) or for an offense requiring sex offender registration.
On September 25, 2015, defendant filed a petition for resentencing pursuant to section 1170.18, subdivision (a), seeking to have his forgery convictions reduced to misdemeanors. In an accompanying memorandum of points and authorities, defendant asserted that his burglary conviction (count 2) was not a “prior conviction” within the meaning of section 1170.18, subdivision (i) because he suffered that conviction at the same time as his forgery convictions. Defendant further argued that his burglary conviction was not a conviction of an “offense punishable in California by life imprisonment or death” within the meaning of section 667, subdivision (e)(2)(C)(iv)(VIII) because the punishment for burglary is generally a determinate term; a burglary conviction is only punishable by a life term if the person is a recidivist subject to the Three Strikes sentencing scheme.
The District Attorney filed opposition to defendant’s resentencing petition, arguing that defendant’s burglary conviction (count 2) precluded him from obtaining Proposition 47 relief for his forgery convictions. The District Attorney argued that the burglary conviction was a “prior conviction” within the meaning of section 1170.18, subdivision (i) because it occurred “prior to the request for relief.” The District Attorney also argued that the burglary conviction was “punishable by life imprisonment” because defendant received a life sentence for that offense.
The trial court denied defendant’s petition for resentencing in a written order filed on April 28, 2016. The trial court determined, based on the plain language of section 1170.18, subdivision (i), that defendant had a “prior” burglary conviction because the conviction occurred prior to the filing of his resentencing petition. The trial court also found that “as a result of the Three Strikes law,” defendant’s burglary conviction was a conviction for an offense “punishable by life imprisonment.”
III. DISCUSSION
Defendant argues, as he did in the trial court, that his forgery convictions were eligible for resentencing under section 1170.18 because his burglary conviction (count 2) did not qualify as a prior conviction for an “offense punishable in California by life imprisonment or death” (§ 667, subd. (e)(2)(C)(iv)(VIII)).
Section 667, subdivision (e)(2)(C)(iv) was added by Proposition 36, the Three Strikes Reform Act of 2012. Under the Three Strikes law as it existed prior to Proposition 36 (former §§ 667, subds. (b)-(i); 1170.12), “a defendant who had previously been convicted of two or more serious or violent felonies was subject to an indeterminate sentence of 25 years to life upon his or her conviction of any new felony. [Proposition 36] prospectively changed the Three Strikes law by reserving indeterminate life sentences for cases where the new offense is also a serious or violent felony, unless the prosecution pleads and proves an enumerated disqualifying factor. In all other cases, a recidivist defendant will be sentenced as a second strike offender, rather than a third strike offender. [Citations.]” (People v. Chubbuck (2014) 231 Cal.App.4th 737, 740-741 (Chubbuck).) One enumerated disqualifying factor is that “[t]he defendant suffered a prior serious and/or violent felony conviction” for one of the “felonies” listed in section 667, subdivision (e)(2)(C)(iv), which include “[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death” (id., subd. (e)(2)(C)(iv)(VIII)).
Proposition 36 “also created a ‘ “post-conviction release proceeding” ’ whereby a Three Strikes prisoner who is serving an ‘indeterminate life sentence’ for a crime that was not a serious or violent felony—and who is not otherwise disqualified—may have his or her sentence recalled and be resentenced as a second strike offender . . . .” (Chubbuck, supra, 231 Cal.App.4th at p. 741.) Again, one disqualifying factor is that the defendant has a prior conviction for an offense listed in section 667, subdivision (e)(2)(C)(iv). (§ 1170.126, subd. (e)(2).)
The Attorney General argues that an offense is “punishable in California by life imprisonment or death” under section 667, subdivision (e)(2)(C)(iv)(VIII) if it is punishable by an indeterminate life term in the particular case, i.e., due to application of the Three Strikes law.
In Hernandez, supra, 10 Cal.App.5th 192, we disagreed with the Attorney General’s argument. The Hernandez defendant had a prior robbery conviction that had been punished by an indeterminate life term under the Three Strikes law. (Id. at p. 195.) In determining whether that conviction disqualified the defendant from Proposition 47 relief for a conviction of petty theft with a prior, we first considered the plain language of section 667, subdivision (e)(2)(C)(iv)(VIII). (Hernandez, supra, at p. 199.) We noted that “[t]he word ‘offense’ generally refers to a criminal act” and reasoned: “By using the term ‘offense punishable . . . by life imprisonment,’ section 667, subdivision (e)(2)(C)(iv)(VIII) focuses on the offense and its associated statutory punishment, not the type of offender or the effect of other prior convictions on the offender’s sentence. Since the ‘offense’ of robbery has an associated statutory punishment of ‘imprisonment in the state prison for two, three, or five years’ (§ 213, subd. (a)(2)), it is not an ‘offense punishable in California by life imprisonment or death’ (§ 667, subd. (e)(2)(C)(iv)(VIII)).” (Ibid.)
We next considered the context of section 667, subdivision (e)(2)(C)(iv)(VIII). (Hernandez, supra, 10 Cal.App.5th at p. 200.) We found it “significant” that section 667, subdivision (e)(2)(C)(iv) “uses the term ‘felonies’ to describe the disqualifying prior convictions,” explaining: “The use of the term ‘felonies’ strongly indicates that the determination of whether an offense qualifies as a ‘super strike’ depends on the nature of the offense itself, not the nature of the defendant or the effect of other prior convictions on the defendant’s sentence.” (Hernandez, supra, at p. 200.) We also found it “significant that section 667, subdivision (e)(2)(C)(iv)(VIII) is the final subclause in a list of specific crimes and categories of crimes” and that “[n]one of the other seven subclauses of section 667, subdivision (e)(2)(C)(iv) focuses on characteristics of the offender or the effect of other prior convictions on the offender’s sentence.” (Ibid.)
In Hernandez, we noted that the ballot materials of Proposition 36 stated that “ ‘murderers, rapists, and child molesters’ ” would still receive life sentences and that “nothing in the text of Proposition 36 suggests that the electorate intended to disqualify an offender from the sentencing changes due to the offender’s conviction of a serious or violent offense that resulted in an indeterminate life sentence under the Three Strikes law.” (Hernandez, supra, 10 Cal.App.5th at pp. 200-201.) We also found that our construction of the phrase “offense punishable in California by life imprisonment or death” (§ 667, subd. (e)(2)(C)(iv)(VIII)) was consistent with the construction of similar statutory phrases. (Hernandez, supra, at pp. 201-202, discussing People v. Turner (2005) 134 Cal.App.4th 1591 and People v. Thomas (1999) 21 Cal.4th 1122.) We found unpersuasive the Attorney General’s claim “that a particular conviction falls within section 667, subdivision (e)(2)(C)(iv)(VIII) if the defendant received a life sentence as the result of a ‘penalty provision.’ ” (Hernandez, supra, at p. 202.)
Applying the rationale of Hernandez here, defendant was not disqualified from resentencing under section 1170.18, subdivision (i) by virtue of the fact that his burglary conviction (count 2) was punished by an indeterminate life term under the Three Strikes law, since burglary itself is not “[a] serious and/or violent felony offense punishable in California by life imprisonment or death” (§ 667, subdivision (e)(2)(C)(iv)(VIII)) but is ordinarily punishable by a determinate term of “two, four, or six years” (§ 461, subd. (a)). We will therefore reverse the trial court’s order denying defendant’s section 1170.18 petition and remand this case for a determination of whether resentencing defendant for his petty theft with a prior “would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)
IV. DISPOSITION
The order denying defendant’s Penal Code section 1170.18 petition is reversed. The case is remanded to the superior court for a determination of whether resentencing defendant “would pose an unreasonable risk of danger to public safety.” (Pen. Code, § 1170.18, subd. (b).)






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BAMATTRE-MANOUKIAN, J.






WE CONCUR:






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ELIA, ACTING P.J.






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MIHARA, J.