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Filed 12/8/15 P. v. Tatmon CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MITCHELL TATMON,

Defendant and Appellant. A143914

(Alameda County Super. Ct. No. C146926A)

Mitchell Tatmon appeals from the superior court’s denial of his petition for recall

of sentence , which he brought pursuant to the Three Strikes Reform Act of 2012 (Act)

.

His court

- appointed counsel i nitially filed a brief raising no legal issues and requesting

that this court independently review the record pursuant to People v. Wende (1979)

25 Cal.3d 436 ( Wende )

. Defendant was informed of his right to file a supplemental brief

and did not do so

. Wh ile this matter was pending , our Supreme Court issued People v.

Johnson (2015) 61 Cal.4th 674 ( Johnson ) . Its holding contradicted the reasoning

employed by the superior court to deny defendant’s peti tio n

. W e asked for and received

supplemental briefing regarding Johnson from defendant , via his counsel, and the People.

Upon our independent review of the record p ursuant to Wende and our review of

the parties’ supplemental brief s , we conclude there are no arguable appellate issues for

our review and affir m the superior court ’s order.

BACKGROUND

On September 23, 2014, defendant filed his petition with the Alameda County

Superior Court . He argued that he was eligible for resentencing under the Act , which2

was passed by California’s voters as Proposition 36 and codified as Penal Code

section 1170.126. 1 The Act permits resentencing for inmates serving certain

indeterminate terms of imprisonment “for a conviction of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or

su bdivision (c) of Section 1192.7

. ” (§ 1170.126, subd. (e)(1).)

In the written order appealed from here , the superior court summarized

defendant’s convictions as follows: “A first amended information charged [ defendant ]

with carja cking (count 1; § 215, subd. (a)), second degree commercial burglary (count 2;

§ 459), false imprisonment by violence (count 3, § 236), and second degree robbery

(count 4, § 211), with special allegations of personal use of a knife on the first three

count s (§ 12022, subd. (b) (1)). [¶] A jury sustained each charge and special allegation.

[ Defendant ] then waived his rights and admitted numerous alleged prior convictions,

including several strikes on each count (§ 667, subd. (e) (2) (A)), § 1170.12

,

subd. (c) (2) (A)). The trial court sentenced him, under the Three Strikes Law, to an

aggregate term of 93 years to life in prison, the main component being 75 years to life for

three consecutive Three Strike terms (on counts two, three and four).” The partie s do not

dispute the accuracy of the superior court ’s summary. 2

Given these convictions, the superior court denied defendant’s petition pursuant to

People v. Anthony (2014) 230 Cal.App.4th 1176 ( Anthony )

. Anthony held that the Act

cannot be applied to reduce a T hree Strikes sentence when any one of the Three Strikes

offenses underlying the sentence is a serious or violent felony. The superior court

, applying Anthony ’s holding to the present case, correctly concluded that “ any robb ery ” is

defined to be a violent felony pursuant to section 667.5, subd. (c)(9) , one of the statutes

that defines “serious or violent felonies” under the Act

. (§ 1170.126, subd. (e)(1).) The

1 All statutory references are to the Penal Code.

2 The People request that we take judicial notice of the record of defendant’s prior appeal, People v. Tatmon , case number A109381, and argue that defendant in his supplemental brief has done the same by implication. We deny this request as unnecessary in light of the superior court’s undisputed summary of defendant’s

convictions.3

court further determined that, although defendant was also servi ng his Three Strikes

sentence pursuant to his second degree burglary and false imprisonment by violence

convictions , these did not fall within the definition s of violent or serious felonies under

the Act

. However, the court concluded, since “one of the fe lonies for which [ defendant ]

is serving the Three Strike sentence is a violent felony, he is ineligible for resentencing.

The fact that the remaining two felonies for which he is serving Three Strike sentences

are not serious or violent is irrelevant.”

A fter the superior court ’s ruling, our Supreme Court ordered Anthony not to be

published in People v. Anthony (Jan. 28, 2015 , S223226 ) 2015 Cal. LEXIS 583 . Th e

c ourt later issued Johnson , in which it held “that when a court resentences a third strike

defendant

. . . the presence of a conviction of a serious or violent felony does not

disqualify an inmate from resentencing with respect to a current offense that is neither

serious nor violent. ” ( Johnson

, supra , 61 Cal. 4th at p. 679.) This directly cont radict s

Anthony and the superior court ’s reason for denying defendant ’s petition.

DISCUSSION

Defendant ’s appointed counsel initially did not identify any arguable appellate

issues for our review

. In her supplemental briefing on behalf of defendant

, she argues
that “[i]n this pre

- Johnson case, the court did not evaluate [defendant ’s ] eligibility f or

resentencing on a count

- by

- count basis. [¶] Therefore, under Johnson , this court may

remand the matter to the lower court to fashion a sentence that compli es with the

Supreme Court’s holding.”

In their supplemental brief, the People argue that the superior court correctly

denied defendant ’s petition

, regardless of its reasoning

, because defendant remains

ineligible for resentencing under Johnson , since all of his Three Strike convictions are for

serious felonies. That is, as the superior court concluded, defendant ’s robbery conviction

is statutor il y defined to be a violent felony. (See § 667.5, subd. (c)(9). ) But

, while the

superior court was correct tha t neither of defendant ’s other two co nvictions

— for

commercial burglary and false imprisonment

— is classified by itself as a serious or4

violent felon y , 3 the court overlooked that each becomes a serious felony whe n it is

accompanied by a finding that the defendant personally used a deadly or dangerous

weapon. ( § 1192.7, subd. (c) (23) [ a serious felony includes “any felony in which the

defendant personally used a dangerous or deadly weapon ” ].) T he superior court’s

summary of defendant ’s convictions inclu des that the jury s ustained “special allegations

of personal use of a knife on the first three counts

. ” These counts include commercial

burglary (count two) and false imprisonment by violence (count three). 4 Therefore, the

People argue , all of appellant’ s felony convictions were for serious or violent felonies and

the superior court’s denial of defendant ’s petition should be affirmed

.

T he People are correct

. Defendant ’s Three Strikes convictions are for felonies that

either are categorically violent or are classified as serious by dint of the jury’s finding

that appellant personal ly use d a dangerous or deadly weapon in their commission.

Therefore

, the superior court correctly ruled that he wa s not eligible for resentencing a t

all under Section 1170.126. Regardless of the court’s reasoning, its ruling is correct and,

therefore, must be affirmed. “ ‘No rule of decision is better or more firmly established by

authority, n or one resting upon a sounder basis of reason and propri ety, than that a ruling

or decision, itself correct in law, will not be disturbed on appeal merely because given for

a wrong reason. If right upon any theory of the law applicable to the case, it must be

sustained regardless of the considerations which ma y have moved the trial court to its

conclusion. ’ ” (

D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)

3 It would appear that “false imprisonment by violence ” is by definition a violent felony, but it is not defined as such by subdivision (c) of section 667.5 or subdivision (c) of section 1192.7 and, therefore, is not to be considered as a felony eligible for resentencing under the Act. (§ 1170.126, subd. (e)(1).)

4 It almost goes without saying that a knife is a “dangerous or deadly weapon.” (See, e.g., People v. Solis (2015) 232 Cal.App.4th 1108, 1121 fn. 5 [defendant’s use of a deadly weapon, a kni fe, made his crime a serious felony] .)5 DISPOSITION

We conclude based on o ur independent review pursuant to Wende and our review

of the parties’ supplemental briefs that there are no arguable appellate issues for our

review. The judgment is affirmed.

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.