Filed 10/13/15 P. v. Tuthill CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

LESTER CLARENCE TUTHILL,

 Defendant and Appellant.

 G050469

 (Super. Ct. No. 96WF2856)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Richard 

Luesebrink, Judge. (Retired judge of the Orange County Super. Ct. assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.

Elizabeth Garfinkle, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney 

General, Warren J. Williams and Eric A. Swenson, Deputy Attorneys General, for 

Plaintiff and Respondent.
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Lester Clarence Tuthill appeals from an order dismissing, in its entirety, his 

petition for recall of his two indeterminate life sentences under Penal Code section 

1170.126 (all further statutory references are to this code unless otherwise designated), 

which was enacted as part of the Three Strikes Reform Act. (Voter Information Guide, 

Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, pp. 109-110.)

Defendant argues the trial court erred because he remained eligible for 

resentencing on one of the two consecutive indeterminate life sentences imposed, even 

though he was ineligible for resentencing on the other. The Supreme Court has recently 

ruled this interpretation of section 1170.126 is correct. (People v. Johnson (2015) 61 

Cal.4th 674.)

Because defendant’s counsel did not make that split-eligibility argument in 

the trial court, he asks us to consider the point for the first time on appeal. He also 

argues, in the alternative, he is entitled to relief because his counsel was ineffective in 

failing to raise the issue below. He has made the ineffective assistance of counsel claim 

both in this appeal and by way of a separate petition for writ of habeas corpus.

As defendant’s argument raises a pure issue of law on a clear record, we 

exercise our discretion to consider the point for the first time on appeal. And in light of 

the controlling Supreme Court authority, we reverse the order and remand the case to the 

trial court with directions to find defendant eligible for resentencing on his conviction for 

escape from the lawful custody of a peace officer without force (§ 4532), and to hold a 

hearing to determine whether “resentencing the petitioner [on that conviction] would 

pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) 
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FACTS

In 1997, defendant was found guilty on four felony counts: (1) possession 

of a firearm by a felon (formerly § 12021, subd. (a), now § 29800, subd. (a)(1)); (2) 

possession of a short-barreled shotgun (formerly § 12020, subd. (a), now § 33210); (3) 

possession of controlled substance (Health & Saf. Code, § 11377, subd. (a)); and (4) 

escape from the custody of a peace officer without force (§ 4532, subd. (b).) The trial 

court also found true that defendant had a strike prior for assault with a firearm (§ 245, 

subd. (a)(2)), and four prison priors for robbery. (§ 211.) 

The basic circumstances of defendant’s offenses were that he was 

encountered by police in a motel room, after a police officer’s routine sweep of the 

motel’s parking lot revealed a car owned by someone with an outstanding warrant. The 

police officer linked the car with the room where defendant was located and knocked on 

the door. When defendant opened the motel room door, the police officer could see into 

the room behind him and spotted shotgun rounds and a stock on the bed. The officer then 

detained both defendant and the woman in the room with him (who was the subject of the 

warrant) and during a pat-down search of defendant, the officer found methamphetamine. 

The woman consented to a search of the room, which revealed the rest of the shotgun 

parts were under the bed. 

During the police officers’ search of the room, both defendant and the 

woman were handcuffed outside. Defendant attempted to flee, running the length of the 

motel corridor, down three flights of stairs and across the street. A police officer chased 

him and apprehended him hiding under a car. 

The trial court sentenced defendant to a total of 54 years 8 months in state 

prison, comprised of consecutive terms of 25 years to life on count 1 and count 4, 8 
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months on count 3, and 1 year for each prison prior. The court apparently stayed 

imposition of any sentence on count 2, pursuant to section 654. 

In March 2013, defendant filed a petition seeking recall of his sentence in 

accordance with section 1170.126. His petition asked the trial court to impose a new 

sentence reflecting the low term on count 1, and one-third of the midterm on counts 2 

through 4. 

The district attorney moved to dismiss the petition, arguing defendant was 

ineligible for resentencing under section 1170.126, subdivision (e)(2) because his 

possession of the shotgun meant he was “armed with a firearm” during the commission of 

the offense for which he was sentenced. 

In the trial court, the parties focused their arguments on whether 

defendant’s possession of a disassembled shotgun qualified as being armed during the 

commission of that crime for purposes of section 1170.126, subd. (e)(2). Because the 

court found it did, it denied defendant’s resentencing petition: “as a convicted felon 

armed with a shotgun, I think that Mr. Tuthill is ineligible for resentencing, and I grant 

the district attorney’s motion to dismiss.”

Defendant appealed, asserting the court erred by dismissing his petition in 

its entirety because while he may have been “armed” during his commission of the 

offense of being a felon in possession of a firearm – rendering him ineligible for recall of 

the indeterminate life term imposed for that conviction – he was not armed during his 

commission of the escape, for which he had been sentenced to a separate consecutive 

indeterminate life term. Defendant argued he remained eligible for recall of the second 

indeterminate life term, even if he was ineligible for recall of the first. 

In July of this year, while this appeal was pending, the Supreme Court 

decided Johnson, supra, 61 Cal.4th 674, 695, in which it concluded “resentencing is
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allowed with respect to a count that is neither serious nor violent, despite the presence of 

another count that is serious or violent.”

DISCUSSION

1. The Resentencing law

Section 1170.126 was enacted by voter initiative in 2012, as part of the 

Three Strikes Reform Act. (Voter Information Guide, supra, text of Prop. 36, § 6, 

p. 109.) Among the stated purposes of the initiative, as explained to voters, was to 

“[r]estore the Three Strikes law [sections 667 and 1170.12] to the public’s original 

understanding by requiring life sentences only when a defendant’s current conviction is 

for a violent or serious crime.” (Id. § 1, p. 105.)

In accordance with that goal, section 1170.126 provides persons who were 

previously sentenced to indeterminate life terms under an earlier version of the “Three 

Strikes” law the opportunity to petition for recall of their sentences and resentencing to 

the term that would have been imposed for their crime under the revised Three Strikes 

law passed by the voters in the form of Proposition 36. Consequently, the initial inquiry 

under section 1170.126 is whether an inmate who is already serving an indeterminate life 

sentence under the Three Strikes law would have been sentenced to that same 

indeterminate life term under the revised sentencing provisions of the Three Strikes 

Reform Act.

Subdivision (e) of section 1170.126 then details which inmates are 

“eligible” for resentencing, based upon what they were sentenced for originally. The first 

requirement is that “[t]he inmate is serving an indeterminate term of life imprisonment 

imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that 

are not defined as serious and/or violent felonies . . . .” (§ 1170.126, subd. (e)(1).)
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The second requirement is that “[t]he inmate’s current sentence was not 

imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of 

subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), 

inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” 

(§ 1170.126, subd. (e)(2).) These cross-referenced offenses include offenses committed 

while the defendant was armed with a firearm or deadly weapon. And the third 

requirement relates to prior convictions, specifying that the eligible inmate “has no prior 

convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of 

paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of 

paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e)(3).)

If the inmate meets these basic eligibility requirements, he or she must be 

resentenced in accordance with section 667, subdivision (e)(1) and section 1170.12, 

subdivision (c)(1) – i.e., to twice the term otherwise provided as punishment for the 

current felony – “unless the court, in its discretion, determines that resentencing the 

petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, 

subd. (f), italics added.) Thus, whether an eligible inmate actually obtains resentencing 

relief will depend upon the court’s discretionary assessment of the inmate’s 

dangerousness.

2. Waiver

As defendant acknowledges, his assertion that the trial court should have 

analyzed each of his two indeterminate life sentences separately for purposes of section 

1170.126 was not one he explicitly made below. He notes that his “petition calls for 

resentencing on all counts,” and thus implicitly suggests that each of the two counts for 

which he received indeterminate life sentences should be analyzed separately, but he then 

concedes his petition “does not exactly call the court’s attention to the fact that there are 
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two indeterminate terms to be addressed.” And he claims his trial counsel’s failure to 

assert that important point in opposition to the district attorney’s motion to dismiss was 

“deficient” because the language of the statue suggests that each indeterminate life 

sentence should be considered separately and there was no conceivable strategic reason 

not to advocate for it.

However, we need not address his claim of ineffective assistance of counsel 

because we conclude his claim of error can be addressed for the first time on appeal. 

“‘Generally, issues raised for the first time on appeal which were not litigated in the trial 

court are waived.’” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11; see People v. 

Chavez (1970) 7 Cal.App.3d 637, 639 [defendant could not assert defense of entrapment 

for the first time on appeal].) But it is also “well settled that when the issue raises a pure 

question of law, . . . we may consider the issue for the first time on appeal.” (Gilliland v. 

Medical Board (2001) 89 Cal.App.4th 208, 219.) Thus, in In re Sheena K. (2007) 40 

Cal.4th 875, 887, the Supreme Court explained that where “[a]n obvious legal error at 

sentencing . . . is ‘correctable without referring to factual findings in the record or

remanding for further findings[,]’” the error “is not subject to forfeiture.” 

Here, the Attorney General does not assert waiver, nor does she contend 

there are any disputed factual issues pertaining to defendant’s claim he would be eligible 

for resentencing on his offense of escape, if considered alone. Instead, the Attorney 

General simply argues the trial court’s dismissal order should be affirmed “because the 

existence of even one [disqualifying] conviction bars [a defendant] from resentencing on 

all of his other commitment offenses.” And “[s]ince [defendant] was armed with a 

firearm during the commission of his offense of being a felon in possession of a firearm, 

he was ineligible for resentencing even if he was not armed with a firearm when he 

effected his escape.”
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In these circumstances, where the issue presented is a pure question of law, 

and no claim of waiver is asserted, we exercise our discretion to address defendant’s 

claim on the merits. (San Mateo Union High School Dist. v. County of San Mateo (2013) 

213 Cal.App.4th 418, 436 [“where a legal argument was not raised in the trial court, we 

have discretion to consider it when the theory raised for the first time on appeal is a pure 

question of law applied to undisputed facts”].) And by order filed concurrently with this 

appeal, we deny as moot defendant’s separately filed habeas petition. 

3. Johnson Compels Reversal

Both defendant and the Attorney General have provided us with cogent, 

polished analyses of section 1170.126, urging us to interpret eligibility for resentencing in 

the manner which favors their position in this case. So had the Supreme Court not yet 

issued its opinion in Johnson, we would be faced with a difficult challenge. 

But our task has been made easy by Johnson. There, the Supreme Court 

addressed the very situation presented in this case – a defendant whose sentence 

incorporated two consecutive indeterminate life terms, one for an offense which would 

otherwise be eligible for resentencing under section 1170.126, and another for a more 

serious offense which was not eligible. The court concluded section 1170.126 “requires 

an inmate’s eligibility for resentencing to be evaluated on a count-by-count basis. So 

interpreted, an inmate may obtain resentencing with respect to a three-strikes sentence 

imposed for a felony that is neither serious nor violent, despite the fact that the inmate 

remains subject to a third strike sentence of 25 years to life.” (Johnson, supra, 61 Cal.4th 

at p. 688.)

Applying Johnson here, as we are compelled to do, we reverse the trial 

court’s order dismissing defendant’s petition and remand the case for further proceedings 

to determine whether the indeterminate life sentence imposed on defendant for the 
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offense of escape should be recalled, and defendant sentenced to a lesser term on that 

count.

DISPOSITION

The order dismissing defendant’s petition for resentencing under section 

1170.126 is reversed. The case is remanded to the trial court with directions to find

defendant eligible for resentencing on his conviction for escape from the lawful custody 

of a peace officer without force (§ 4532), and to hold a hearing to determine whether 

“resentencing the petitioner [on that conviction] would pose an unreasonable risk of 

danger to public safety.” (§ 1170.126, subd. (f).) 

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

THOMPSON, J.