People v. Gonzales CA2/6

FACTS

In 2002, Gonzales was sentenced to four consecutive 25-year-to-life three strike terms. Two were based on third strikes for a serious felony--first degree residential burglary (counts 1 and 2). (§ 1192.7, subd. (c)(18).) The other two life sentences were based on felonies that qualified as third strikes prior to Proposition 36--possession of a firearm by a felon and receiving stolen property. In 2014, Gonzales filed a petition "to recall sentence" pursuant to Proposition 36. (§ 1170.126.) He claimed that 1) only two of his four three strike life sentences were based on "serious" third strike felonies, and 2) he was eligible for resentencing on the two third strikes that were not serious or violent felonies. The trial court ruled Gonzales was not eligible for resentencing on any of his third strike felonies. It said, "One of Defendant's current convictions is for first degree burglary in violation of Penal Code section 459, which is a serious felony . . . thereby making Defendant ineligible for resentencing . . . . " (Italics added.) It denied the petition "with prejudice."

DISCUSSION

Resentencing Under Proposition 36 Gonzales contends the trial court erred by denying…