Filed 5/9/18 P. v. Hall CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT HALL,

Defendant and Appellant.

F075013

(Super. Ct. No. 98CM7440)


ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the nonpublished opinion filed herein on April 20, 2018, be modified as follows:
1. On page 2, the first sentence of the last paragraph shall be deleted and replaced with the following:

On June 3, 2016, defendant filed in propria persona a petition entitled “FIRST AMENDED PETITION FOR RECALL OF SENTENCE AND FOR RESENTENCING PURSUANT TO PENAL CODE SECTION 1170.126 (THREE STRIKES REFORM ACT OF 2012).
There is no change in the judgment.


POOCHIGIAN, A.P.J.
WE CONCUR:



DETJEN, J.



PEÑA, J.
Filed 4/20/18 P. v. Hall CA5 (unmodified opinion)


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT HALL,

Defendant and Appellant.

F075013

(Super. Ct. No. 98CM7440)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Kings County. Steven D. Barnes, Judge.
James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, for Plaintiff and Respondent.
-ooOoo-

 
Defendant Robert Hall appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.126. The People concede the trial court denied the petition under the authority of the wrong statute, and they agree the matter should be remanded for reconsideration of the petition. We agree, reverse the order, and remand.
BACKGROUND
On February 10, 1993, defendant was convicted by jury trial of second degree murder (Pen. Code, § 187, subd. (a)). On January 14, 1999, he was convicted by plea of possession of a weapon in prison (§ 4502, subd. (a)).
On February 17, 1999, the trial court sentenced defendant to an indeterminate term of 25 years to life in prison on the possession of a weapon in prison count, pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and 15 to 25 years to life on the murder count.
On April 18, 2016, defendant filed in propria persona a petition entitled “PETITION FOR RECALL OF SENTENCE AND RESENTENCING PURSUANT TO PENAL CODE SEC., 1170.126 (THREE STRIKES REFORM ACT OF 2012).” The petition sought resentencing on defendant’s conviction for possession of a weapon in prison.
On May 12, 2016, the trial court denied the petition because it failed to set forth good cause for defendant’s delay in seeking relief, which ordinarily was required within two years of the 2012 effective date of the statute.
On June 3, 2018, defendant filed in propria persona a petition entitled “FIRST AMENDED PETITION FOR RECALL OF SENTENCE AND FOR RESENTENCING PURSUANT TO PENAL CODE SECTION 1170.126 (THREE STRIKES REFORM ACT OF 2012).” In this petition, defendant presented an argument addressing cause for delay.
On October 7, 2016, the district attorney responded on a form entitled “PETITION FOR RESENTENCING—RESPONSE (PC 1170.18).” The form included a single handwritten phrase to explain why defendant was not eligible for relief: “PC 4502 not subject to resentencing per 1170.18.”
On December 7, 2016, the trial court filed a form entitled “ORDER RE: PETITION FOR RESENTENCING OR RECLASSIFICATION (PC 1170.18).” The order stated: “The Petition is denied. PC 4502 (Count 1) is not eligible for relief under PC 1170.18.”
On December 27, 2016, defendant filed in propria persona a notice of appeal.
DISCUSSION
We agree with the parties that the trial court mistakenly considered defendant’s section 1170.126 petition under the statutory criteria of section 1170.18. The trial court must reconsider the petition under the statutory criteria of section 1170.126.
DISPOSITION
The order denying defendant’s section 1170.126 petition is reversed. The matter is remanded to the trial court for reconsideration of the petition under the proper statutory authority.