Opinion
A153382
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. TROY WILLIAM THOMPSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR28588)
Troy William Thompson appeals from an order denying his petition to recall his sentence pursuant to Proposition 36 (Pen. Code, § 1170.126 or Proposition 36). We reverse and remand.
Undesignated statutory references are to the Penal Code. "On November 6, 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of 2012. . . . Proposition 36 reduced the punishment to be imposed with respect to some third strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases in which third strike sentences were imposed with respect to felonies that are neither serious nor violent." (People v. Johnson (2015) 61 Cal.4th 674, 679 (Johnson).) Proposition 36's effective date was November 7, 2012. We take judicial notice of the record and our opinion in Thompson's prior appeal (People v. Thompson (Dec. 5, 2001, A091082) [nonpub. opn.]). --------
FACTUAL AND PROCEDURAL BACKGROUND
In 2000, Thompson pled guilty to possessing methamphetamine for sale (Health & Saf. Code, § 11378) and a jury convicted him of first degree burglary (§ 459) and receiving stolen property (§ 496, subd. (a)). The trial court found true several prior convictions for first degree burglary. As relevant here, the court sentenced Thompson to 50 years to life in state prison, consisting of 25 years to life on the burglary conviction and 25 years to life on the conviction for possessing methamphetamine for sale.
In February 2014—within two years of Proposition 36's effective date—Thompson filed a petition for recall of his sentence in propria persona. The court denied the petition because Thompson's "life sentence was based on a serious or violent felony." In March, Thompson filed a petition for writ of habeas corpus in propria persona. Among other things, Thompson argued the court erred by denying his petition because possessing methamphetamine for sale is not a serious or violent felony. In April, the court denied the habeas petition, concluding Thompson was ineligible for resentencing pursuant to Proposition 36 because his burglary conviction was a "serious felony."
In May 2014, Thompson filed a second petition for recall of his sentence in propria persona. Thompson stated he was serving an indeterminate life sentence for possessing methamphetamine for sale. Later that month, the court denied the petition. It concluded Thompson had "previously raised an identical claim" which "was denied . . . on the grounds that [Thompson] is ineligible for . . . resentencing because [his] life sentence is based on a serious or violent felony." The court noted Thompson "raised the claim a second time by way of a . . . habeas petition," which was also denied "on the same grounds." According to the court, the "current petition for recall of sentence fails to present any new facts or changes in the law that would warrant any relief. [Thompson] is ineligible for . . . resentencing."
In October 2017, Thompson filed a third petition for recall of sentence in propria persona. The court denied the petition in December 2017, on the ground that Thompson's "conviction for the life sentence is based upon a serious felony," i.e., his first degree burglary conviction. Thompson appealed.
DISCUSSION
As relevant here, Proposition 36 "provide[s] for discretionary resentencing in some cases in which third-strike sentences were imposed with respect to felonies that are neither serious nor violent." (Johnson, supra, 61 Cal.4th at p. 679.) Proposition 36 "requires an inmate's eligibility for resentencing to be evaluated on a count-by-count basis. So interpreted, an inmate may obtain resentencing with respect to a Three Strikes sentence imposed for a felony that is neither serious nor violent, despite the fact that the inmate remains subject to a third strike sentence of 25 years to life." (Johnson, at pp. 687-688.)
To obtain a sentencing reduction, the inmate must file a petition for a recall of sentence in the trial court within two years of the date of Proposition 36's effective date " 'or at a later date upon a showing of good cause.' " (People v. Drew (2017) 16 Cal.App.5th 253, 256 (Drew); People v. Conley (2016) 63 Cal.4th 646, 652-653.) When making a good cause determination, the principal considerations are the " ' nature and strength of the justification for the delay' " and the " 'duration of the delay.' " (Drew, at p. 257.) The trial court, however, "must consider all of the relevant circumstances of the particular case, 'applying principles of common sense to the totality of the circumstances.' " (Ibid.) A trial court's good cause determination is reviewed for abuse of discretion. (Ibid.)
The Attorney General implicitly concedes the court erred by denying Thompson's petition, and that he "may have been eligible for resentencing with respect" to the conviction for possessing methamphetamine for sale because that offense is "neither serious nor violent" under Proposition 36. (See Johnson, supra, 61 Cal.4th at p. 687 [defendant's first degree burglary conviction did not preclude resentencing on second degree burglary conviction, "a felony that is not classified as serious or violent"]; People v. Lynn (2015) 242 Cal.App.4th 594, 599 [that the defendant "was convicted of robbery does not make him ineligible . . . for recall of sentence and resentencing on the attempted grand theft conviction, absent a showing the attempted grand theft itself qualified as a serious or violent felony"].)
Relying on Drew, supra, 16 Cal.App.5th 253, the Attorney General urges us to conclude the petition was untimely and unsupported by a showing of good cause. In Drew, the defendant filed a petition for relief in September 2016, more than two years after the expiration of the statutory deadline. (Id. at p. 255.) The trial court concluded the petition was untimely and that the defendant "failed to show good cause to excuse the delay." (Ibid.) The Drew court affirmed. It determined the delay was " 'substantial[]' " and that the defendant's explanation for the delay—that he "lacked legal representation" and that "there should be no time limits for filing a recall petition as long as no one told him he had the ability to request resentencing"—did not constitute good cause. (Id. at p. 259.)
Drew noted there was "no evidence [the defendant] did anything to investigate potential relief for three and one-half years. . . . He did not contact the court. He did not request assistance from the public defender's office that previously represented him. He did not inquire of anyone at the Department of Corrections and Rehabilitation. Certainly, we do not suggest a good cause showing requires that an untutored layman . . . undertake yeoman efforts in an effort to navigate the intricacies of [Proposition 36]. But neither do we accept [the defendant's] claim on appeal that faced with years during which there is no hint of activity or even de minimus effort by the inmate to protect his rights, a trial court abuses its discretion when it determines there is no good cause to dispense with the legislatively prescribed deadline for filing recall petitions." (Drew, supra, 16 Cal.App.5th at p. 260.) The court determined "the delay was lengthy and the reason for [the defendant's] inactivity is unexplained except by the absence of a lawyer proactively advising him regarding his rights and remedies. We cannot conclude it was an abuse of discretion for the trial court to find that [the defendant] did not show 'good cause' for his late-filed recall petition." (Ibid.)
We have no quarrel with Drew's determination that the trial court in that case did not abuse its discretion. But here, we cannot review an exercise of discretion that has not occurred. The trial court did not deny Thompson's petition because it was untimely or because it was unsupported by a showing of good cause, and the record is undeveloped as to Thompson's justification for the delay in filing the petition. We also conclude Drew is factually distinguishable. In Drew, the defendant did nothing over a three-and-a half-year period to "investigate potential relief or to "protect his rights." (Drew, supra, 16 Cal.App.5th at p. 260.) Here, Thompson filed three petitions to recall in propria persona, the first of which was timely, and all of which were erroneously denied in light of Johnson.
We express no opinion on how the court should exercise its discretion on the issue of good cause. If the court determines Thompson had good cause to file the petition after the expiration of the statutory deadline, the court should determine Thompson's eligibility for recall and resentencing on possessing methamphetamine for sale and, if Thompson is eligible, whether resentencing him would pose an unreasonable risk of danger to the public. (See § 1170.126, subds. (e), (f); see People v. Lynn, supra, 242 Cal.App.4th 594, 599.)
DISPOSITION
The December 22, 2017 order denying Thompson's section 1170.126 petition is reversed and the matter is remanded for further proceedings consistent with the opinions expressed herein.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.