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Name: People v. Jernigan
Case #: B253467
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 07/10/2014

Defendant’s prior conviction for attempted forcible oral copulation does not disqualify him from Strike Reform resentencing because it is not listed as a sexually violent offense in Welfare and Institutions Code section 6600, subdivision (b). In 1997, defendant was convicted of several nonserious felonies. The jury found two prior serious felonies true, a robbery and attempted forcible oral copulation (Pen. Code, §§ 664, 288a, subd. (c)(2)(A).) He received two concurrent 25-years-to-life third-strike terms. In October 2013, defendant sought resentencing under the Strikes Reform Act of 2012 (Proposition 36). The trial court denied the petition, finding the attempted forcible oral copulation prior rendered him ineligible for resentencing. He appealed. Held: Reversed. Under Penal Code section 1170.126, an eligible defendant serving a life third-strike term for a nonserious felony may petition for resentencing as a two-strike offender. Once a defendant is found to be eligible for resentencing, the trial court must evaluate whether resentencing the defendant would pose an unreasonable risk of danger to the public. One of the disqualifying factors is that the defendant suffered a prior sexually violent offense, as defined in Welfare and Institutions Code, section 6600, subdivision (b). While section 6600, subdivision (b) includes section 288a in its list of offenses, section 6600 does not include attempts, only completed offenses (except attempted homicide). The matter was remanded for the trial court to determine whether resentencing defendant would pose an unreasonable risk of danger to the public.