A trial court’s jurisdiction to resentence an eligible Three Strikes defendant does not include reconsidering the initial sentencing court’s finding that the conviction was for a serious felony. Cabrera was convicted of assault with force likely to cause great bodily injury (GBI) (Pen. Code, § 245, subd. (a)(1)) and battery with serious bodily injury (Pen. Code, § 243, subd. (d)). At his trial, the jury failed to render findings on the GBI allegations as to two counts. In 2008, the initial sentencing court found the offenses were serious felonies based on the infliction of GBI, and Cabrera received a Three Strikes life sentence. His convictions were affirmed on appeal. In 2014, Cabrera petitioned for resentencing under the Three Strikes Reform Act (Pen. Code, § 1170.126). To make himself eligible for resentencing, he alleged the initial sentencing court imposed an unauthorized sentence after finding his conviction a serious felony, despite the jury’s lack of a finding on that allegation. The trial court declined to alter the original sentencing court’s findings and denied resentencing. He appealed. Held: Affirmed. After passage of Proposition 36, a qualified defendant serving a Three Strikes sentence for a nonserious felony may petition the trial court for resentencing as a second strike offender. In Cabrera’s case, the initial sentencing court’s finding that his convictions were serious felonies rendered him ineligible for relief. Although section 1170.126 is an exception to the general rule divesting a trial court of jurisdiction once execution of sentence has begun, that jurisdiction is limited. If the defendant does not satisfy the criteria for resentencing then the trial court has no power to do anything but deny the petition, which the trial court here properly ordered.

Assuming the initial sentencing court’s finding that defendant’s offenses were serious felonies was incorrect, this would not result in a correctable “unauthorized sentence.” Cabrera argued the initial sentencing court’s classification of his offenses as serious felonies resulted in an unauthorized sentence and therefore may be corrected at any time. A sentence is unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Such an error may not be forfeited and can never be harmless. Cabrera relied on People v. Taylor (2004) 118 Cal.App.4th 11, where the court found the jury’s not true findings on GBI allegations precluded the trial court from characterizing the convictions as serious felonies. However, a jury’s failure to reach a verdict on an enhancement is not an affirmative rejection of the enhancement as an acquittal or not true finding would be. The violation of Cabrera’s statutory right to a jury trial on enhancements is subject to harmless error review. Further, his constitutional right to a jury trial on enhancements (Apprendi v. New Jersey (2000) 530 U.S. 466) is also subject to harmless error analysis and therefore cannot result in an unauthorized sentence.

http://www.courts.ca.gov/opinions/documents/C081532.PDF