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Name: People v. Denize
Case #: H039974
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/13/2015

Inmate serving Three Strikes life sentences, one for a serious felony and one for a nonserious felony, was ineligible for Proposition 36 resentencing. Denize is serving two consecutive Three Strikes life sentences for 1996 convictions of grand theft and assault with a deadly weapon, with a true finding of personal use of a deadly weapon. In 2013, an attorney filed a Proposition 36 petition on his behalf, requesting appointment of counsel and stating on information and belief that Denize’s third strike was for a nonviolent, nonserious felony, and that there were no disqualifying factors. The trial court summarily denied his petition because his current conviction for assault with a deadly weapon (a serious felony based on the personal use finding) rendered him ineligible for resentencing. On appeal Denize argued that the superior court erred in denying his petition without appointing counsel, and by finding him ineligible for resentencing. Held: Affirmed. Denize was not entitled to appointment of counsel because his petition did not make a prima facie case that he was eligible for resentencing under Penal Code section 1170.126. “The mere filing of a petition that lacks any substantive content, like the one filed by [Denize], cannot create a ‘presumptive entitlement’ to resentencing if eligible because it lacks the information that the statute requires the petition to provide in order to trigger an evaluation of eligibility.” Further, Denize’s sentence for grand theft was not eligible for resentencing. The statutory language of section 1170.126 precludes a defendant from obtaining retrospective relief where he is serving multiple indeterminate Three Strikes life terms, one of which is for a serious or violent offense and one of which is for a nonserious, nonviolent offense that would have been eligible for resentencing under Proposition 36. [Editor’s Note: Justice Grover dissented, agreeing with the reasoning in In re Machado (2014) 226 Cal.App.4th 1044, mod. 226 Cal.App.4th 1376a, review granted 7/30/2014 (S219819/B249557).]