Prior conviction for assault with intent to commit rape does not automatically disqualify third strike prisoner from resentencing under Proposition 36. Cook, a prisoner serving a third strike sentence for commercial burglary, petitioned for resentencing under the Three Strikes Reform Act (Prop. 36). The People opposed the petition on the ground that Cook’s prior conviction for assault with intent to commit rape (Pen. Code, §§ 220, 261) rendered him ineligible for resentencing because that offense necessarily involves application of force or fear. The trial court agreed and denied the petition based on the fact of Cook’s prior conviction alone, without considering the specific circumstances of his offense. Cook appealed. Held: Reversed and remanded. Under Proposition 36 (Pen. Code, § 1170.126), a prisoner serving a third strike sentence is eligible for resentencing if his third strike was not a serious or violent felony and his prior strikes did not include, inter alia, a sexually violent offense committed by force or (see Welf. & Inst. Code, § 6600, subd. (b)). Here, Cook was convicted of assault with intent to commit rape. Assault is “an unlawful attempt, coupled with a present ability, to inflict a violent injury on a person.” The only additional element of assault with intent to commit rape is the perpetrator’s subjective intent, during the commission of an assault, to commit a rape. No actual force is needed to commit the offense of assault with intent to commit rape. Because the offense of assault with intent to commit rape does not necessarily involve application of force or fear, the trial court erred in denying the petition based on the fact of Cook’s prior conviction alone. The case was remanded for the trial court to determine whether Cook’s prior conviction was committed with force or fear, based on consideration of the specific circumstances of his offense.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G050907.PDF