P. v. Tucker

Filed 5/16/17 P. v. Tucker CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MILTON TUCKER, JR.,
Defendant and Appellant.
B271616
(Los Angeles County
Super. Ct. No. NA027035)
APPEAL from an order of the Superior Court of
Los Angeles County. David V. Herriford, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey, Noah P. Hill
and Michael J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________

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2
In 1996, defendant and appellant Milton Tucker, Jr., pled
no contest to taking a vehicle without the consent of the owner
(Veh. Code, § 10851, subd. (a)). In return for his plea, the trial
court dismissed additional charges of possessing cocaine (Health
& Saf. Code, § 11350, subd. (a)) and willfully evading a police
officer (Veh. Code, § 2800.2). Based on the additional finding
that he had two qualifying “strike” prior convictions for robbery
(Pen. Code, §§ 211, 667, 1170.12; Veh. Code, § 10851), he was
sentenced pursuant to the plea agreement and the “Three
Strikes” Law to an indeterminate term of 25 years to life in state
prison.
On November 30, 2012, defendant filed a petition for recall
of his third strike sentence. The trial court issued an order to
show cause why the petition should not be granted. The
prosecution filed an opposition, and later a revised opposition,
arguing that defendant was ineligible and unsuitable for
resentencing because (1) defendant’s “classification score in
prison” was 194 “based upon a number of violent acts during his
current term,” and (2) defendant had an extensive prior record of
crime involving possession of a firearm, spousal battery, and
resisting a peace officer, as well as absconding from parole.
Defendant filed a reply and a supplemental reply, arguing that
he did not pose any risk of danger to public safety.
Following several years of litigation, the trial court held a
hearing and considered evidence, ultimately denying defendant’s
petition on the grounds that defendant posed an unreasonable
risk to public safety pursuant to People v. Esparza (2015) 242
Cal.App.4th 726, 745–746 (Esparza), and was thus ineligible for
recall and resentencing. (Pen. Code, §§ 667, subd. (e)(2)(C)(iii),
1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).)

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Defendant’s timely appeal ensued. He argues that the trial
court erred in denying his petition for recall and resentencing
(Pen. Code, § 1170.126, Prop. 36) because it declined to consider
the definition of the phrase “unreasonable risk of danger to public
safety” as set forth in Penal Code section 1170.18 (Prop. 47).
On February 18, 2015, our Supreme Court granted review
in People v. Valencia (2014) 232 Cal.App.4th 514 (Valencia),
S223825. The applicability of Proposition 47’s danger definition
in the Proposition 36 context is pending before that Court in both
Valencia, supra, S223825, and People v. Chaney (2014) 231
Cal.App.4th 1391 (Chaney), review granted February 18, 2015,
S223676.
In view of the posture of this issue, we shall not belabor the
point but simply conclude, as did the court in Esparza, supra, 242
Cal.App.4th 726,1 that the voters in enacting Proposition 47 did
not intend for its definition of danger to extend to petitions under
Proposition 36, and thus such definition is inapplicable here.
1 No petition for review was filed or review granted in
Esparza, which came from the Sixth Appellate District. In a
subsequent Sixth Appellate District case, the majority noted that
Esparza was the only extant decision on this issue and rejected
its conclusion. (People v. Cordova (2016) 248 Cal.App.4th 543,
552, fn. 8, review granted Aug. 31, 2016, S236179 (Cordova).) In
granting review in Cordova, the Court deferred further action
pending resolution of a related issue in Chaney, supra, S223676,
and Valencia, supra, S223825. We decline to consider the
Cordova majority opinion persuasive on this point. (Cal. Rules of
Court, rules 8.1105, 8.1115.)

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4
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
_______________________, J.
CHAVEZ
_____________________, J.
HOFFSTADT

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