People v. Gathe CA2/2

FACTS

On August 29, 1998, Gathe was searched by deputies from the Los Angeles County Sheriff’s Department. They retrieved a semiautomatic handgun from Gathe’s waistband. Subsequently, he pleaded guilty to possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)).2 He admitted to two prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced Gathe to a term of 25 years to life in state prison. He appealed. We affirmed the judgment in People v. Gathe (Apr. 11, 2000, B134805) [nonpub. opn.]. In December 2012, Gathe filed a petition for recall and resentencing. The trial court denied the petition because Gathe was armed with a firearm during the commitment offense. This appeal followed.

DISCUSSION

Proposition 36 “created a postconviction release proceeding whereby a [defendant] 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 sentenced as a second strike offender unless the court determines that…