People v. Thurston, A139587

• Decision Date: 15 January 2016
• Docket Number: A139587
• Citation: 244 Cal.App.4th 644,198 Cal.Rptr.3d 585
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anderson Purnell THURSTON, Defendant and Appellant.

244 Cal.App.4th 644

198 Cal.Rptr.3d 585

The PEOPLE, Plaintiff and Respondent,

v.Anderson Purnell THURSTON, Defendant and Appellant.

A139587

Court of Appeal, First District, Division 2, California.

Filed January 15, 2016

As Modified on Denial of Rehearing February 11, 2016

Attorney for Defendant and Appellant: William Richard Such, Under Appointment by the Court of Appeal

Attorneys for Plaintiff and Respondent: Kamala D. Harris, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Julia Y. Je, Deputy Attorney General

Kline, P.J.Anderson Purnell Thurston, currently serving a prison term of 27 years to life imposed in 2002 under the Three Strikes law, appeals from the denial of his request for resentencing under the Three Strikes Reform Act. He contends the trial court erred in finding he was not eligible for resentencing due to a 1975 juvenile adjudication of rape. Appellant maintains that the juvenile adjudication could not be used to disqualify him from resentencing because it was not pleaded and proved in the underlying third strike case; a prior juvenile conviction is not a "prior conviction" for purposes of determining eligibility for resentencing; the record of the juvenile adjudication was not properly before the court; the trial court's statement that it would not resentence appellant even if he was eligible for resentencing should be disregarded; and the evidence did not support the trial court's statement that, if appellant was eligible, it would find that resentencing would pose an unreasonable risk to public safety. We affirm.

STATEMENT OF THE CASE AND FACTS

In 2002, after a jury trial, appellant was found guilty of felony driving in disregard for safety of persons or property while fleeing from a pursuing police officer. (Veh. Code, § 2800.2, subd. (a).) Appellant was found to have suffered three prior strike convictions (Pen. Code, §§ 1170.12, subds. (a) -(d) ; 667, subds. (b)-(i)),¹ for robberies in 1990 and 1984, and two prison priors (§ 667.5, subd. (b)), for the 1990 robbery and a 1999 violation of Vehicle Code section 2800.2. He was sentenced to a prison term of 25 years to life for the current conviction plus two consecutive one-year terms for the two prison priors.

The facts underlying appellant's 2002 conviction were described in detail in our opinion affirming that conviction. (People v. Thurston (Jan. 19, 2005, A101620, A106524) .)² In brief, when a Vallejo police officer attempted to stop the vehicle appellant was driving, appellant accelerated and drove for about 1.2 or 1.3 miles with the officer in pursuit, failing to stop at a stop signs, driving at speeds of up to 60 miles per hour in a 30 mile per hour zone and in the wrong direction on one-way streets. (Id. at pp. *3–4.) The officer testified that there was no traffic on the one-way streets. (Id. at p. *3.) The chase ended when the car appellant was driving jumped onto the curb over a planter box and stopped, still in gear, and appellant ran from car; appellant was found in a yard, lying face down by the fence, panting and sweating profusely. (Ibid. )

In November 2012, after passage of the Three Strikes Reform Act (Proposition 36), appellant, in propria persona, filed a petition for resentencing. The Solano County Public Defender was appointed to represent appellant, and a new petition for resentencing was filed on January 16, 2013. Opposing the petition, the prosecutor noted that appellant might not be eligible for resentencing due to a 1975 juvenile adjudication for rape, noting that it was unclear whether the facts behind the adjudication were in the record and the court would have to determine from the juvenile record whether the rape was forcible.

On March 18, the court heard testimony from five witnesses, relatives, and a friend of appellant, who believed appellant had changed and would not pose any danger to the community if released. Defense counsel noted that at the time of appellant's 2002 trial, acting without counsel, appellant had turned down two potential dispositions that would have called for sentences of four years or eight years.

The court had reviewed appellant's juvenile court file and, after directing defense counsel to review it, indicated that it was inclined toward finding appellant ineligible due to the juvenile adjudication. The matter was continued for counsel to provide the court with authority on the issue of whether appellant's juvenile adjudication precluded resentencing.

On April 22, appellant presented testimony from three present or former prison employees concerning his rehabilitative efforts and the matter was again continued.

On May 13, the prosecutor served a formal notice of request for disclosure of appellant's juvenile court file; the next day, the prosecutor filed supplemental points and authorities arguing that appellant was not eligible for resentencing due to the 1975 juvenile adjudication of rape and attaching copies of a 1975 order of commitment to the then-named California Youth Authority (now the Division of Juvenile Justice) (DJJ) for violation of section 261, the juvenile court petition alleging forcible rape, and minute orders sustaining the petition and committing appellant to the DJJ. Appellant and defense counsel filed separate objections to release of the juvenile records.

On June 10, the parties disputed whether the trial court could order release of the juvenile records, appellant insisting that the determination could only be made by a juvenile court judge. The court held that it had jurisdiction to make the order, ordered that the request for disclosure be filed, and ordered the relevant portions of the juvenile court file released to the parties for use in this proceeding. The parties then presented arguments on whether the juvenile adjudication rendered appellant ineligible for resentencing and whether he would present a danger to the community if released, and appellant addressed the court.

On June 17, noting that it was an issue of first impression, the court held that a juvenile adjudication could disqualify an individual seeking resentencing and that it was clear the adjudication was for a sexually violent act within the meaning of Welfare and Institutions Code section 6600, subdivision (b). The court additionally held that appellant continued to pose an unreasonable risk of danger to the community, explaining that it was considering this issue in case it was determined to have erred in finding the juvenile adjudication rendered appellant ineligible for resentencing.

On July 11, defense counsel filed a motion to recall and resentence appellant pursuant to section 1170, subdivision (d), attaching a letter appellant wrote to the court dated the day after the June 17 hearing, and a document entitled "Refutation, Clarification & Correction" in which appellant addressed various factual errors he believed the court had made in its reasons for viewing him as continuing to pose an unreasonable risk of danger, as well as ways in which appellant had expressed remorse and sympathy for victims of his crimes. At a hearing on August 9, the court treated the motion as a motion for reconsideration of the denial of appellant's petition for resentencing.

Appellant filed a notice of appeal from the denial of the petition for resentencing on August 9, 2013.

DISCUSSION

Prior to the adoption of Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act), a defendant who had previously been convicted of two or more serious or violent felonies was subject to an indeterminate sentence of 25 years to life upon conviction of any new felony. (People v. Chubbuck (2014) 231 Cal.App.4th 737, 740, 180 Cal.Rptr.3d 127 (Chubbuck ); People v. White (2014) 223 Cal.App.4th 512, 517, 167 Cal.Rptr.3d 328 (White ); People v. Kaulick (2013) 215 Cal.App.4th 1279, 1285, 155 Cal.Rptr.3d 856 (Kaulick ).) "The Reform Act prospectively changed the Three Strikes law by reserving indeterminate life sentences for cases where the new offense is also a serious or violent felony, unless the prosecution pleads and proves an enumerated disqualifying factor. In all other cases, a recidivist defendant will be sentenced as a second strike offender, rather than a third strike offender." (Chubbuck, at pp. 740–741, 180 Cal.Rptr.3d 127 ; Kaulick, at p. 1286, 155 Cal.Rptr.3d 856 ; People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168, 151 Cal.Rptr.3d 901 (Yearwood ).)

"The Reform Act also created a ‘ "post-conviction release proceeding" ’ whereby a Three Strikes prisoner who is serving an ‘indeterminate life sentence’ for a crime that was not a serious or violent felony—and who is not otherwise disqualified—may have his or her sentence recalled and be resentenced as a second strike offender, unless the court ‘determines that resentencing ... would pose an unreasonable risk of danger to public safety.’ (§ 1170.126, subds. (a), (f), (m); see Yearwood, supra, 213 Cal.App.4th at p. 168, 151 Cal.Rptr.3d 901.)" (Chubbuck, supra, 231 Cal.App.4th at p. 741, 180 Cal.Rptr.3d 127 ; White, supra, 223 Cal.App.4th at p. 517, 167 Cal.Rptr.3d 328.)

Under section 1170.126, subdivision (e)(3), an 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). As relevant here, the referenced offenses include a " ‘sexually violent offense’ as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 1170.12, subdivision (c)(2)(C)(iv)(I); § 667, subdivision (e)(2)(C)(iv)(I).) Welfare and Institutions Code section 6600, subdivision (b), defines " ‘[s]exually violent offense’ " as meaning "the following acts 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...