People v. Manning

• Decision Date: 05 June 2014
• Docket Number: B249749,B247919
• Citation: 172 Cal.Rptr.3d 560,226 Cal.App.4th 1133
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Schacobie Herman MANNING, Defendant and Appellant. Schacobie Herman Manning, Petitioner, v. The Superior Court of Los Angeles County, The People, Real Party in Interest.

226 Cal.App.4th 1133

172 Cal.Rptr.3d 560

The PEOPLE, Plaintiff and Respondent,

v.Schacobie Herman MANNING, Defendant and Appellant.

Schacobie Herman Manning, Petitioner,

v.The Superior Court of Los Angeles County, The People, Real Party in Interest.

B247919

B249749

Court of Appeal, Second District, Division 3, California.

Filed June 5, 2014

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Sex offenses and Crimes Against Decency, § 17.

APPEAL from a post-judgment ruling of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded. (Super. Ct. No. GA026902).

PETITION for writ of mandate denied as moot.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

KLEIN, P.J.

Appellant and defendant, Schacobie Herman Manning, appeals the denial of his post-judgment petition seeking recall of his sentence and resentencing under the Three Strikes Reform Act of 2012. Manning has also filed a petition for a writ of mandate seeking the same relief.

Reversed and remanded. The trial court's post-judgment ruling is vacated and the matter is remanded for further proceedings. Manning's petition for writ of mandate is denied as moot.

BACKGROUND

In 1996, Manning pled guilty in Los Angeles County Superior Court case number GA026902 to commercial burglary, possession of a forged instrument and possession of a forged driver's license, and admitted having suffered two prior serious felony convictions within the meaning of the Three Strikes law (Pen. Code, §§ 459, 475, 470, 667, subds. (b)-(i)).¹ Manning was sentenced to state prison for a term of 25 years to life. We affirmed his conviction and sentence in People v. Manning (Dec. 22, 2004, B167422, 2004 WL 2958229) [nonpub.].

On November 21, 2012, following the enactment of Proposition 36, Manning filed a petition pursuant to section 1170.126 asking the trial court to recall his 25–years–to–life Three Strikes sentence and resentence him as a second striker. On January 28, 2013, the trial court denied Manning's request on the ground he had sustained a prior conviction which rendered him ineligible for resentencing under section 1170.126.

Manning filed a notice of appeal.²

CONTENTION

The trial court erred by denying Manning's petition for resentencing under section 1170.126.

DISCUSSION

1. Legal principles.

As we explained in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 155 Cal.Rptr.3d 856: “On November 6, 2012, voters approved Proposition 36, the Three Strikes Reform Act of 2012 (the Act). Under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) as it existed prior to Proposition 36, a defendant convicted of two prior serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a third felony. Under the Act, however, a defendant convicted of two prior serious or violent felonies is subject to the 25–years–to–life sentence only if the third felony is itself a serious or violent felony. If the third felony is not a serious or violent felony, the defendant will receive a sentence as though the defendant had only one prior serious or violent felony conviction, and is therefore a second-strike, rather than a third-strike, offender. The Act also provides a means whereby prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction. According to the specific language of the Act, however, a current inmate is not entitled to resentencing if it would pose an unreasonable risk of danger to public safety.” (Id. at p. 1285, 155 Cal.Rptr.3d 856, fn.omitted.) “[T]here are two parts to the Act: the first part is prospective only, reducing the sentence to be imposed in future three strike cases where the third strike is not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second part is retrospective, providing similar, but not identical, relief for prisoners already serving third strike sentences in cases where the third strike was not a serious or violent felony (Pen. Code, § 1170.126).” (Id. at p. 1292, 155 Cal.Rptr.3d 856.)

Subdivision (e)(3) of section 1170.126 provides that an inmate who is otherwise qualified for resentencing is only eligible if “[t]he inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” Both section 667, subdivision (e)(2)(C)(iv), and section 1170.12, subdivision (c)(2)(C)(iv), list the following offenses:

“(I) A ‘sexually violent offense’ as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code.

“(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.

“(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

“(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.

“(V) Solicitation to commit murder as defined in Section 653f.

“(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.

“(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.

“(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”

Welfare and Institutions Code section 6600, subdivision (b), defines “sexually violent offense” as any one of several enumerated offenses, including Penal Code section 261, “when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person....”

In Kaulick, our main concerns were the means by which a trial court should exercise its discretion regarding the question of dangerousness, including the People's right to notice and an opportunity to be heard on this question. We also pointed out that “an argument can be made that the prosecution also has the right to notice and a hearing on the issue of whether a prisoner is initially eligible for resentencing under the Act. Under the prospective part of the Act, a defendant whose third strike is not a serious or violent felony shall receive a second strike sentence ‘unless the prosecution pleads and proves' any of the four exceptions. (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) In contrast, under the retrospective part of the Act, after a defendant petitions for resentencing, ‘the court shall determine’ if any of the exceptions apply. (Pen. Code, § 1170.126, subd. (f).) One of the exceptions is if the defendant ‘used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury’ in the commission of the current offense. (Pen. Code, § 1170.12, subd. (c)(2)(C)(iii).) By its terms, the Act does not require a jury finding establishing this exception when a prisoner is seeking resentencing pursuant to the retrospective part of the Act; the court must simply ‘determine’ whether the exception applies. To the extent the court's determination may be based on anything other than the undisputed record of the prisoner's conviction, the prosecution could certainly argue that it has a right to present evidence and to be heard on the issue. As this issue is not presented by the instant writ petition, however, we express no opinion on it.” (People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at pp. 1298–1299, fn. 21, 155 Cal.Rptr.3d 856.)

As part of resolving the case at bar, however, we find it appropriate to address this issue.

2. Discussion.

The trial court's Memorandum of Decision denying Manning's recall petition states: “The Court has read and considered the petition for recall of sentence pursuant to Penal Code section 1170.126 filed by Defendant on November 21, 2012. [¶] Defendant has suffered a prior conviction under Pen. Code § 667(e)(2)(C)(iv), making Defendant ineligible for resentencing under Pen. Code § 1170.126. [¶] For the foregoing reason, the petition for recall of sentence is DENIED WITH PREJUDICE.”

Manning acknowledges he has sustained two prior convictions for rape of an unconscious person under section 261, subdivision (a)(4), but he contends the trial court erred because these particular crimes “are neither enumerated excluding offenses nor violent sex offenses within the meaning of [section 1170.126].”

Manning rightly notes a violation of section 261, subdivision (a)(4), does not necessarily involve the elements of either an underage victim or force, violence, duress, etc. “Rape of an unconscious person ... requires proof that: (1) the defendant had sexual intercourse with the victim; (2) the defendant was not married to the victim at the time; (3) the victim was unable to resist because she was unconscious of the nature of the act; and (4) the defendant knew the victim was unable to resist because she was unconscious of the nature of the act. [Citations.] There is no requirement that the defendant use force or violence to accomplish the act of sexual...