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Name: People v. Nettles
Case #: C073336
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/11/2015

The operative date for determining whether a defendant has been convicted of a “sexually violent offense,” thereby disqualifying him from resentencing under the Three Strikes Reform Act, is the effective date of Proposition 36, not the date of the prior conviction. Nettles, who is serving an indeterminate Three Strikes life sentence for felonies that are not serious or violent, petitioned for resentencing under the Reform Act (Prop. 36). The trial court found Nettles disqualified from resentencing because he had two prior convictions for assault with intent to commit rape (Pen. Code, § 220), which is currently a “sexually violent offense.” (See Welf. & Inst. Code, § 6600, subd. (b).) He appealed, arguing that he should be eligible for resentencing because assault with intent to commit rape was not classified as a sexually violent offense in 1998 when he received his life term. Held: Affirmed. A prisoner who has a prior conviction for a sexually violent offense as defined in section 6600, subdivision (b) is disqualified from resentencing under the Reform Act. (See Pen. Code, §§ 1170.126, subd. (e)(3), 667, subd. (e)(2)(C)(iv)(I), 1170.12, subd. (c)(2)(C)(iv)(I).) Based on the use of the present tense in section 1170.126, subdivision (e)(3), the Court of Appeal concluded that the determinative date for assessing whether a prior offense was a sexually violent felony is the effective date of Proposition 36. This conclusion is bolstered by the California Supreme Court’s decision in People v. Johnson (2015) 61 Cal.4th 674, which reached a similar conclusion regarding the determinative date for classification of the current offense as a serious or violent felony. Because assault with intent to commit rape was listed as a sexually violent offense in section 6600 on the date Proposition 36 became effective, Nettles was disqualified from resentencing.