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Filed 2/9/15 P. v. Yost CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON CLAUDE YOST,

Defendant and Appellant.

E061731

(Super.Ct.No. CR67330)

OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. 

Affirmed.

Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.
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Defendant and appellant Aaron Claude Yost appeals from an order denying his 

petition for recall of his indeterminate life term under Penal Code section 1170.126, 

subdivision (f).1 We will affirm the order.

I

BACKGROUND

On May 2, 1997, a jury found defendant guilty of manufacturing 

methamphetamine (Health & Saf. Code, § 11379.6, subd. (a); count 1) and possession of 

pseudoephedrine (Health & Saf. Code, former § 11383, subd. (c); count 2). The jury also 

found true that the amount of methamphetamine exceeded 10 gallons/three pounds 

(Health & Saf. Code, § 11379.8, subd. (a)(2)) and 25 gallons/10 pounds (Health & Saf. 

Code, § 11379.8, subd. (a)(3) [the weight enhancement]). In a bifurcated proceeding, the 

trial court found true that defendant had suffered two prior serious and/or violent strike 

convictions (former §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison 

terms (§ 667.5, subd. (b)).

On June 27, 1997, the trial court sentenced defendant to an indeterminate term of 

25 years to life plus a determinate term of 10 years for the weight enhancement on 

count 1 to state prison with credit for time served; count 2 was stayed pursuant to 

section 654.

 

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 All future statutory references are to the Penal Code unless otherwise stated.
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Defendant subsequently appealed. In an unpublished opinion, this court ordered 

the lesser weight enhancement stricken and remanded the matter to the trial court for 

resentencing. On April 27, 1999, the trial court struck the lesser weight enhancement and 

resentenced defendant to 25 years to life plus 10 years for the greater weight 

enhancement on count 1.

On November 6, 2012, the electorate passed Proposition 36, also known as the 

Three Strikes Reform Act of 2012 (the Reform Act). Among other things, this ballot 

measure enacted section 1170.126, which permits persons currently serving an 

indeterminate life term under the “Three Strikes” law to file a petition in the sentencing 

court seeking to be resentenced to a determinate term as a second striker. (§ 1170.126, 

subd. (f).) If the trial court determines, in its discretion, that the defendant meets the 

criteria of section 1170.126, subdivision (e), the court may resentence the defendant. 

(§ 1170.126, subds. (f), (g).)

On July 7, 2014, defendant filed a petition for resentencing under 

section 1170.126 with supporting exhibits. The trial court denied the petition on

July 17, 2014, finding defendant ineligible for resentencing under section 1170.126, 

subdivision (e), due to the weight enhancement. Defendant filed a timely notice of 

appeal on August 15, 2014.
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II

DISCUSSION

We appointed counsel to represent defendant on appeal. After examination of the 

record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a 

summary of the facts and potential arguable issues, and requesting this court conduct an 

independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he 

has done so. 

As previously stated, on November 6, 2012, the voters approved Proposition 36, 

the Reform Act, which amended sections 667 and 1170.12, and added section 1170.126. 

The Reform Act changes the requirements to sentence a third strike offender to 25 years 

to life in prison. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood).) 

Under the Three Strikes law as it existed prior to the Reform Act (former §§ 667, 

subds. (b)-(i); 1170.12), a defendant who had previously been convicted of two or more 

serious or violent felonies was subject to an indeterminate sentence of 25 years to life 

upon his or her conviction of any new felony. The Reform Act changed the Three Strikes 

law by reserving indeterminate life sentences for cases where the new offense is also a 

serious or violent felony, unless the prosecution pleads and proves an enumerated 

disqualifying factor. In all other cases, a recidivist defendant will be sentenced as a 

second strike offender, rather than a third strike offender. (Yearwood, at pp. 167-168, 
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citing §§ 667, 1170.12; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 

1286.)

The Reform Act also created a post-conviction release proceeding whereby a three 

strikes prisoner who is serving an indeterminate life sentence for a crime that was not a 

serious or violent felony—and who is not otherwise disqualified—may have his or her 

sentence recalled and be resentenced as a second strike offender, unless the court 

“determines that resentencing . . . would pose an unreasonable risk of danger to public 

safety.” (§ 1170.126, subds. (a), (f), (m); Yearwood, supra, 213 Cal.App.4th at p. 168.)

As the court explained in Yearwood, a “prisoner is eligible for resentencing as a 

second strike offender if all of the following are shown: (1) the prisoner is serving an 

indeterminate life sentence for a crime that is not a serious or violent felony; (2) the life 

sentence was not imposed for any of the offenses appearing in sections 667, 

subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C); and (3) the inmate has no prior 

convictions for any of the offenses appearing in clause (iv) of section 667, 

subdivision (e)(2)(C) or clause (iv) of section 1170.12, subdivision (c)(2)(C).” 

(Yearwood, supra, 213 Cal.App.4th at p. 170, citing § 1170.126, subd. (e).) If the 

prisoner satisfies these criteria, “the prisoner shall be resentenced as a second strike 

offender ‘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).)” 

(Yearwood, at p. 170.)
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It is undisputed that defendant’s current offenses are “not defined as serious 

and/or violent felonies” and that he otherwise meets the eligibility requirements of 

subdivision (e)(1) of section 1170.126. The eligibility criterion in subdivision (e)(3) and 

the dangerousness finding under subdivision (f) of section 1170.126 are likewise not at 

issue in this case. The only eligibility criterion at issue is the second criterion set forth in 

subdivision (e)(2) of section 1170.126, which provides in relevant part: “An inmate is 

eligible for resentencing if: [¶] . . . [¶] (2) The 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.” 

In other words, if defendant’s third strike sentence was imposed for one of the 

offenses listed in section 667, subdivisions (e)(2)(C)(i)-(iii) or section 1170.12, 

subdivisions (c)(2)(C)(i)-(iii), he is ineligible for resentencing under section 1170.126.

Section 667, subdivision (e)(2)(C)(i) provides: “The current offense is a 

controlled substance charge, in which an allegation under Section . . . 11379.8 of the 

Health and Safety Code was admitted or found true.” Since defendant’s third strike 

conviction was a controlled substance charge (Health & Saf. Code, § 11379.6, 

subd. (a) [manufacturing methamphetamine]) for which the Health and Safety Code 

section 11379.8 weight enhancement was found true as to that count, his offense is one of 

the offenses listed in section 667, subdivision (e)(2)(C)(i). Thus, under the plain 

language of section 1170.126, subdivision (e)(2), he is ineligible for resentencing.
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Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have 

independently reviewed the record for potential error and find no arguable issues. 

III

DISPOSITION

The order denying defendant’s petition to recall his sentence is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

McKINSTER

J.