People v. Peterson CA2/1 ( 2023 )

Filed 9/20/23 P. v. Peterson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B325807
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA039464)
v.
CHRISTOPHER LEE
PETERSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Joseph R. Porras, Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant Christopher Lee Peterson suffered two strike
convictions, one in 1986 and another in 1992. A jury thereafter
convicted him in 1997 of a third strike, first degree burglary,
which is itself a serious felony (Pen. Code,1 § 1192.7, subd.
(c)(18)). As a result, the court sentenced Peterson to an
indeterminate life imprisonment term pursuant to the Three
Strikes law (§§ 667, 1170.12). After Peterson was sentenced, the
voters passed Proposition 36, the Three Strikes Reform Act of
2012, which “created a postconviction release proceeding whereby
a prisoner who is serving an indeterminate life sentence imposed
pursuant to the [T]hree [S]trikes law for a crime that is not a
serious or violent felony . . . may have his or her sentence recalled
and be sentenced as a second strike offender unless the court
determines that resentencing would pose an unreasonable risk of
danger to public safety. (§ 1170.126.)” (People v. Yearwood
(2013) 213 Cal.App.4th 161, 168, italics added.)
Approximately 10 years after section 1170.126 became law,
Peterson filed a petition for recall of his first degree burglary
sentence pursuant to that section. The trial court found the
petition untimely and that Peterson was in any event statutorily
ineligible for relief because his commitment offense was and still
is classified as a serious felony. Peterson now appeals that
decision. We find no error and affirm.
A. Factual and Procedural Background
Prior to 1997, Peterson had suffered two strike convictions:
a 1986 state conviction for first degree burglary and a 1992
federal conviction for bank robbery. After being released from
prison on the bank robbery conviction, Peterson was arrested
1 All unspecified statutory references are to the Penal Code.
2
again and charged in an amended information filed on
February 18, 1997, with one count of first degree burglary
(former § 459).
Evidence at trial2 showed that law enforcement officers
responded to a report of a person climbing the backyard fences of
several residences. Officers observed Peterson scrambling out of
a residence’s open window carrying a black bag. The bag was
later recovered and turned out to be empty. Other evidence
showed Peterson had pried the screen from the window to access
the residence. Peterson had removed a roll of dimes worth
approximately $5 from the house; there was no other loss.
Officers pursued Peterson but lost sight of him. He was captured
approximately three hours later after a containment area was set
up.
After trial, the jury convicted Peterson of first degree
burglary, rejecting the alternative of second degree burglary. At
a later bench trial, the trial court found that Peterson had
suffered two prior serious or violent felony convictions within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), two prior serious felony convictions (§ 667, subd.
(a)(1)), and had served two prior prison terms (§ 667.5, subd. (b)).
The trial court denied Peterson’s motion to strike one or more of
these two prior convictions pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero). On May 14, 1997, the
trial court sentenced Peterson to a total of 35 years to life in
2 Due to the unavailability of any other record evidence, we
base our factual recitation on the probation officer’s report and
our prior opinion in this matter following Peterson’s direct appeal
after trial, People v. Peterson (Sept. 30, 1998, B112729) [nonpub.
opn.].
3
prison, comprised of an indeterminate term of 25 years to life on
the first degree burglary count, plus two consecutive five-year
terms for the prior serious felony enhancements. We affirmed
the judgment on appeal. (People v. Peterson, supra, B112729.)
Approximately 14 years later, “[o]n November 6, 2012, the
electorate passed Proposition 36, the Three Strikes Reform Act of
2012.” (People v. Johnson (2015) 61 Cal.4th 674, 679.)
Proposition 36 (codified at section 1170.126) provides for
discretionary resentencing in some cases in which third-strike
sentences were imposed for felony convictions that are neither
serious nor violent. (People v. Johnson, supra, at p. 679; see also
§ 1170.126.) Those seeking resentencing under section 1170.126
were to file their petitions “within two years after the effective
date of the act [the effective date being November 7, 2012] . . . or
at a later date upon a showing of good cause.” (§ 1170.126, subd.
(b).)
On September 16, 2022, Peterson filed a petition for recall
of his sentence pursuant to section 1170.126. The trial court
denied the petition, finding Peterson’s first degree burglary
conviction disqualified him from relief. The trial court further
found that Peterson failed to establish good cause excusing the
filing of his petition outside the presumptive two-year limitations
period specified in section 1170.126.
B. Peterson is Ineligible for Relief Under Section
1170.126
Although there is a substantial question about the
timeliness of Peterson’s petition given that it was filed
approximately eight years after the presumptive cutoff date set
forth in section 1170.126, we need not address whether good
cause existed for Peterson’s delay because his petition was
4
properly denied even if it was timely filed. Under the plain
language of section 1170.126, Peterson is ineligible for relief
because his third strike commitment offense (first degree
burglary) is classified as a serious felony. (§§ 1170.126, subd. (b),
1192.7, subd. (c)(18).)
Peterson argues the record does not support his first degree
burglary conviction qualifying as a violent felony under section
667.5, subdivision (c)(21). But section 1170.126 precludes relief
when the commitment offense is classified as a “serious and/or
violent” felony (§ 1170.126, subd. (b)), and it is undisputed
Peterson’s commitment offense is classified as a serious felony.
That it might not also qualify as a violent felony is therefore
immaterial.
Peterson further appears to argue the criminal conduct at
issue was relatively minor and not “serious” in the everyday use
of that word, and the trial court therefore erred in not looking at
the facts underlying the first degree burglary conviction before
concluding his commitment offense was a serious felony. The
statutory language, however, unambiguously states the court
must look to the statutory classification of the commitment
offense to determine whether the offense was serious or violent,
not the facts underlying that offense. (People v. Johnson, supra,61 Cal.4th at pp. 684, 687.) Section 1170.126 states that to be
eligible for relief among other things the defendant’s commitment
offense must be “a felony or felonies that are not defined as
serious” by “subdivision (c) of [s]ection 1192.7.” (§ 1170.126,
subd. (b).) Because section 1192.7, subdivision (c) defines first
degree burglary as a serious felony, the trial court did not have
discretion to re-classify the offense based on its own view of the
underlying conduct.
5
Peterson lastly argues that his conduct (breaking into a
residence and stealing approximately $5) was sufficiently minor
that it is unjust to classify his offense as a serious felony and
sentence him to an indeterminate life term. The wisdom and
efficacy of the three strikes approach to sentencing is a topic of
public debate. Some members of the public would likely agree
with Peterson’s view that there should be exceptions for serious
felonies such as the first degree burglary he committed in which
only $5 was stolen. Others would likely disagree given Peterson’s
history of recidivism, including that he was paroled from federal
prison on his bank robbery conviction just months before he broke
into a residence to steal whatever he could. Peterson makes no
equal protection or Eight Amendment cruel and unusual
punishment argument.3 He instead asserts his own personal
view about the fairness of section 1170.126 excluding him from
relief. Such value judgments are for the Legislature to resolve,
and not this court, as “the Legislature is afforded considerable
latitude in defining and setting the consequences of criminal
offenses” (Johnson v. Department of Justice (2015) 60 Cal.4th
871, 887), and courts “cannot insert [their] own policy concerns
into the analysis” (People v. Acosta (2021) 60 Cal.App.5th 769,
781).4
3 Peterson did make an Eight Amendment argument in his
direct appeal, which we rejected. (People v. Peterson, supra,
B112729.)
4 In his reply brief, Peterson argues for the first time that
the trial court should have revisited the sentencing court’s denial
of his Romero motion to dismiss one of his prior strikes. Peterson
has waived this argument by failing to raise it below or in his
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DISPOSITION
The order denying the petition for recall of sentence under
section 1170.126 is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
opening brief. (People v. Investco Management & Development
LLC (2018) 22 Cal.App.5th 443, 460, fn. 4.) Even if this
argument was not waived, it is meritless because section
1170.126 does not provide a mechanism to collaterally attack the
sentencing court’s denial of a Romero motion.
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