Filed 9/21/15 P. v. Gonzales CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO PA GAN GONZALES,

Defendant and Appellant. 2d Crim. No. B261367 (Super. Ct. No. YA049823

- 01 ) (Los Angeles County)

Pedro Pagan Gonzales appeals an order denying his petition to recall his

2002 third strike sentence s pursuant to Proposition 36 (Pen. Cod e, § 1170.126 )

, 1
following his convictions for first degree residential burglary (§ 459) (counts 1 and 2 ), possession of a firearm by a felon ( former § 12021, subd. (a)(1) (count 4), receiving stolen property (§ 496) (counts 6

- 9 ) , and conspiracy to commit residential burglary
(§§ 182, subd. (a)(1), 459) (count 10)

. Gonzales " was sentenced to a term of 100 years to life, consisting of four consecutive terms of 25 years to life " based on four third strikes :
count 1 (first degree burglary)

, count 2 (first de gree burglary)

, count 4 (possession of a firearm by a felon)

, and count 6 (receiving stolen property)

. ( People v. Gonzales ( Oct.
15, 2003, No. B 159396 ) [nonpub. opn.].)

1 All statutory references are to the Penal Code.2 We conclude the trial court erred by ruling Gonzales was " ineligible for

resentenci ng " under Proposition 36 for any of his third s trike convictions because " [o]ne

of Defendant ' s current convictions is for first degree burglary. " We reverse and remand.

FACTS

In 2002

, Gonzales was s entenced to four consecutive 25

- year

- to

- life three

s trik e terms. T wo were based on third strike s for a serious felon y

-- first degree residential burglary (counts 1 and 2). (§ 1192.7, subd. (c) (18).) The other two life sentences were

based on felonies that qualified as third strikes prior to Proposition 36

-- po ssession of a firearm by a felon and receiving stolen property.

In 2014

, Gonzales filed a petition " to recall sentence " pursuant to Proposition 36

. (§ 1170.126.) H e claimed that 1) only two of his four three s trike life

sentences were based on " serious " third strike fe lonies , and 2) h e was eligible for resentencing on the two third strike s that were not serious or violent felonies

.

The trial court ruled Gonzales was not e ligible for re sentencing on any of

his third strike felonies . It said, " O ne of D e fendant ' s current convictions is for first degree burglary in violation of Penal Code section 459, which is a serious felony

. . . thereby making Defendant ineligible for resentencing

. . . . " ( Italics added .) It denied the petition " with prejudice. "

D ISCUSSION Resentencing Under Proposition 36

Gonzales contends the trial court erred by denying his petition to recall a

" third ' strike ' sentence for receiving stolen property " sole l y because one of his other convictions involved first degree residential b urglary. The People agree and contend t he

court also improperly prevented him f rom seeking resentencing on the third strike for possession of a firearm by a felon.

Proposition 36, the Three Strikes R efo rm Act of 2012, "created a
post conviction release p roceeding

, " which gives a prisoner the opportunity to " have his

or her sentence recalled. " ( People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th
1007, 1010.) " [A] prisoner currently serving a sentence of 25 years to life under the pre

-3

Proposition 36 version of the Three Strikes law for a third felony conviction that was not

a serious or violent felony may be eligible for resentencing as if he or she only had one prior serious or violent felony conviction. " ( People v. White (2014) 223 Cal.App.4th

5 12, 517.) If the prisoner meets the " resentencing eligibility criteria " and is not subject

to the " disqualifying exceptions or exclusions, " he or she is " entitled to resentencing

relief under the Reform Act

, " unl ess the court finds he or she "' would pose an
unreasonable ri sk of danger to public safety. '" ( People v. White

, supra , 223 Cal.App.4th

a t p. 517. ) There are exclusions from resentencing where: 1) the current offense

" involves controlled substances and specified findings are made concerning the quantity

of controlled substances involved " or " specified " sex offenses; 2) " [d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm

, " or intend ed to cause great bodily injury; or 3) if the defendant has a pri or
conviction for " specified sex offenses, " " any homicide offense or attempted homi cide
offense [ §§ 187

- 191.5 ]
, " "solicitation to commit murder, assault with a machine gun on a peace officer or firefighter, possessio n of a weapon of mass destruction, or an y serious or violent felony punishable in California by life imprisonment or death. " ( People v.

Johnson (2015) 61 Cal.4th 674, 681

- 682 , italics added .)

The People and Gonz a les claim Gonzales does not fall within the se
exclusions

. They correctly note tha t his third strike for receiving stolen property is not a serious or violent felony. ( People v. Hall (1998) 67 Cal.App.4th 128, 139.) Consequently

, Gonzales should have been permitted to pursue his petition for resentencing on that count. ( People v. Whi te , supra , 223 Cal.App.4th at p. 517.)

The People also c ontend Gonzales " received a sentence of 25 years to life "

based on another count that does " not qualify as a serious or violent " felony

-- pos session of a firearm by a felon. They claim, consequently , he " is eligible to be resentenced " on
that count.4 " For purposes of the Three Strikes law as amended by the Reform Act, this felony offense [possession of a firearm by a felon ( § 12021, subd. (a) ) ] is not a violent felony within the meaning of section 6 67.5, subdivision (c), or a serious felony within the meaning of section 1192.7, subdivision (c). " ( People v. White

, supra , 223 Cal.App.4th at

p. 518.) But where " the record establishes that a defendant convicted under the pre

Proposition 36 version of t he Three Strikes law as a third strike offender of possession of a firearm by a felon was armed with the firearm during the commission of that offense

, the armed

- with

- a

- firearm exclusion applies and the defendant is not entitled to resentencing relief unde r the Reform Act. " ( White

, at p. 519 , italics added .)

The trial court did not reach these issues. It concluded Gonzales was precluded from resent enc ing on any count under Proposition 36 because he had a first degree burglary conviction in a separate cou nt

. But t his barrier to resentencing was recently rejected by our Supreme Court in People v. Johnson

, supra , 61 Cal.4th 674 , 695

. The c ourt said

, " [W] e conclude that resentencing is allowed with respect to a count that is
neither serious nor violent, des pite the presence of another count that is serious or

violent. " ( Ibid. )

DISPOSITION

The order denying the petition is reversed. On remand

, the trial court shall consider the petition, exercise its discretion, and proceed consistent with People v.

John son , supra , 61 Cal.4th 764.

NOT TO BE PUBLISHED.

GILBERT, P. J. We concur:

YEGAN, J.

PERREN, J.5 William C. Ryan, Judge

Superior Court County of Los Angeles

______________________________

Nancy Gaynor, under appointment by the Court of A ppeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.