Can a third strike offender who is serving an indeterminate life sentence for a crime that is not a serious or violent felony and who is not disqualified from a post-conviction release proceeding be resentenced?

In November 2012, California voters approved Proposition 36. "The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment" ( 667, 1170.12) and "also created a postconviction release proceeding whereby a prisoner 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 resentencing would pose an unreasonable risk of danger to public safety. ( 1170.126.)" ( People v. Yearwood (2013) 213 Cal.App.4th 161, 167168, 151 Cal.Rptr.3d 901, italics added.)

[220 Cal.Rptr.3d 674]

In November 2014, defendant filed a petition to recall his sentence and for resentencing under section 1170.126. The prosecution opposed the petition. Acknowledging defendant's commitment offense was not a serious or violent felony, the prosecution argued defendant was nevertheless ineligible for resentencing under section 1170.126, subdivision (e)(3), which provides that "[a]n inmate is not eligible for resentencing if he or she has a prior conviction for any offense appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv)." ( People v. Thurston (2016) 244 Cal.App.4th 644, 655656, 198 Cal.Rptr.3d 585, italics omitted.) Among the enumerated offenses is "[a]ny homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive." ( 667, subd. (e)(2)(C)(iv)(IV).) The prosecution argued defendant's Texas murder conviction therefore disqualified him from being resentenced under the Act.