People v. Fullbright CA2/5

INTRODUCTION

Defendant and appellant Derek Todd Fullbright (appellant), was convicted in 1998 of dissuading a witness (Pen. Code,1 § section 136.1, subd. (c)(1), Count I), criminal threats (§ 422, Count II), and battery on a peace officer (§ 243, subd. (c), Count III). The allegation that appellant suffered two prior strike convictions was found to be true (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d) (“Three Strikes” law). The trial court sentenced appellant to a total term of 50 years to life in prison, comprised of consecutive terms of 25-years-to-life on Counts I and III, pursuant to the Three Strikes law. The trial court imposed and stayed a term of 25-years-to-life on Count II, the criminal threats count. Appellant filed a petition under section 1170.126 (Proposition 36) for recall of sentence in the trial court asking it to resentence him on Count III—the battery of a peace officer count. The trial court denied the motion on the ground that appellant was ineligible for relief because one of his current convictions was listed as a serious felony. (§ 1192.7, subd. (c)(37).) On appeal, appellant contends that he is eligible for resentencing on Counts I and

III. We hold that…