Filed 10/29/ 15 P. v. Wilson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,
Plaintiff and Respondent,

v.

KENNET H ROY WILSON,
Defendant and Appellant. B260281
(Los Angeles County Super. Ct. No. SA025425)

ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT ; PETITION FOR REHEARING DENIED

THE COURT:

T he opinion filed October 13 , 201 5 , and not cer tified for publication, is modified as follows: 1. On page 4, the Disposition reads as follows:

DISPOSITION

The order is reversed, and the matter remanded with directions to grant the petition for recall of sentence and to proceed in accordance with t he procedures specified in section 1170.126 regarding the sentence for inflicting corporal injury on a cohabitant.2

It should read:

DISPOSITION

The order is reversed and the matter remanded with directions to the superior court to grant the petition for recall of sentence and to determine, in compliance with the provisions of section 1170.126, whether Wilson is eligible under section 1170.126, subdivision (e), for resentencing on his conviction for inflicting corporal injury on a cohabitant, and, if s o, to resentence Wilson on that conviction, “unless the court, in its discretion determines that resentencing [Wilson] would pose an unreasonable risk of danger to public safety,” under section 1170.126, subdivision (f).

The re is no change in the judgm ent. Respondent ’s petition for rehearing is denied.

PERLUSS , P. J. ZELON , J. SEGAL , J.Filed 10/13/15 P. v. Wilson CA2/7 (unmodified version)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specif ied 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,
Plaintiff and Respon dent,

v.
KENNETH ROY WILSON,
Defendant and Appellant. B260281
(Los Angeles County Super. Ct. No. SA025425)

APPEAL from a n order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded with d irections

.

Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Viet H. Nguyen , Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________2 INTRODUCTION Kenneth Roy Wilson, serving a three strikes, indeterminate sentence of 56 years to life, petitioned pursuant to Penal Code section 1 170.126
, 1 part of the T hree Strikes
Reform Act (Proposition 36), for recall of his sentence and resentencing as a second
strike offender. The trial court denied the petition on the ground Wilson was ineligible for resentencing because one of the commitmen t offenses, assault by means of force likely to produce great bodily injury and with a deadly weapon ( former § 245,
subd. (a)(1))
, is a serious felony. (See § 1170.126, subd. (e)(2).) We conclude Wilson

was eligible for resentencing and reverse

.

FACTUAL AND PROCEDURAL BACKGROUND Wilson lived with his girlfriend Belinda P.
, a child they had together
, and Belinda
P.’s four children. Wilson came home intoxicated , and he and Belinda P. had a verbal
altercation that escalated into a shoving match in the liv ing room . Wilson, a large man,
scratched Belinda P.’s face with his fingernails and pushed her into a glass table, which
shattered. Wilson then threatened to kill Belinda P. and retrieved a knife from the
kitchen before returning to the living room. Whe n Wilson began walking with the knife to the children’s room, Belinda P. blocked him and he jabbed at her, cutting her hands and arms. Wilson threatened to stab her and kill her. (See People v. Wilson ( Jan . 15
, 2002 , B142587) [nonpub. opn].) A jury c onvicted Wilson in 1996 of inflicting corporal injury on a cohabitant ( § 273.5 , subd. (a)
, count 1), making a terrorist threat with the use of a knife ( §§ 422, 12022, subd. (b)(1), count 2) and assault by means of force likely to produce great bodily inju ry and with a deadly weapon (count 3) with findings he had suffered one prior serious felony conviction for voluntary manslaughter ( § 667, subd. (a)(1)) and four prior
conviction s qualifying him for sentencing under the three strikes law ( §§ 667,

1 Statutory references are to the Penal Code.3

subds. ( b)

- (d), 1170.12). The jury also found Wilson had four prior felony convictions
that were predicates for a separate prison term enhancement ( § 667.5, subd. (b)). The trial court imposed an aggregate state prison sentence of 58 years to life.
Wilson tw ice appealed from the judgment, and each time on remand the trial court elected to impose an aggregate term of 58 years to life. On January 15, 2002, f

ollowing Wilson’s third appeal, we ordered the judgment modified to reflect an aggregate state prison sentence of 56 years to life: A term of
25 years to life for infliction of corporal injury upon a cohabitant (count 1) and a consecutive term of 25 years to life for aggravated assault (count 3)
, plus five years for the prior serious felony enhancement a nd one year for the prior prison term enhancement. The term of 25 years to life for making a terrorist threat plus one year for the use of a deadly weapon was stayed pursuant to section 654. (See People v. Wilson , supra, B142587

. )
DISCUSSION
A n inmate ’s petition to recall his or her sentence must state “ all of the currently charged felonies, which resulted in the [third strike life sentence]” and “ all of the pri or [strike] convictions . . . .” ( § 1170.126, subd. (d).) The trial court must then determin e whether the inmate has satisfied the requirements set forth in subdivision (e) of
section 1170.126. ( § 1170.126, subd. (f).) An inmate is eligible for resentencing if (1) he or she is currently serving a third strike life term for conviction of a felon y or felonies that are not defined as serious and/or violent felonies by section 667.5, subdivision (c)
, or section 1192.7, subdivision (c); (2) the “current sentence was not imposed for any of the offenses” listed in section 667, subdivision (e)(2)(C)(i)

- (iii)
, or section 1170.12, subdivision (c)(2)(C)(i)

- (iii); and (3) n one of the inmate ’ s prior convictions is listed in section 667, subdivision (e)(2)(C)(iv)
, or section 1170.12, subdivision (c)(2)(C)(iv). ( § 1170.126, subd. (e).) If the inmate satisfies these requirements, the trial court shall resentence him or her, “ unless the court, in its discretion, determines that resentencing the [inmate] would pose an unreasonable risk of danger to public safety. ” ( § 1170.126,
subd. (f).)4

Wilson argues he is en titled to recall of his third strike sentence for infliction of corporal injury on a cohabitant because the offense is neither a serious nor a violent felony and a n inmate ’s eligibility for resentencing under Proposition 36 should be
determined on a count

- by

- count basis. The Supreme Court recently addressed this issue
in People v. Johnson (2015) 61 Cal.4th 674, holding that Proposition 36 “requires an
inmate’ s eligibility for resentencing to be evaluated on a count

- by

- count basis. So interpreted, an inmat e 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 in mate remains subject to a third strik e sentence of 25 years to life.” ( Johnson, supra, at p. 688.)

B ased on this holding, although Wilson’s convictions for aggravated assault and making a criminal threat with a deadly weapon enhancement are disqualifying serious felony convictions under section 1170.126 (see §§ 667, subd. (e)(2)(C)(iii)
, 1170.12, subd. ( c)(2) ( C)(iii)), he is nonetheless eligible for recall of his indeterminate sentence for inflicting corporal injury on a cohabitant. On remand, the trial court must resentence Wilson for inflicting corporal injury on a cohabitant pursuant to section 1170.1 26, subdivision (f), if Wilson satisfies all the criteria set forth in subdivision (e), “unless the court, in its discretion
, determines that resentencing [Wilson] would pose an unreasonable risk of danger to public safety.”
DISPOSITION
The order is reve rsed, and the matter remanded with directions to grant the petition for recall of sentence and to proceed in accordance with the procedures specified in
section 1170.126 regarding the sentence for inflicting corporal injury on a cohabitant

.

SEGAL, J.

We concur:

PERLUSS, P. J. ZELON, J.