Filed 8/28/17 P. v. Lua CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Gustavo Lua challenges the superior court’s denial of his Penal Code section 1170.18[1] petition. The superior court ruled that he was ineligible for resentencing of his conviction for possession of stolen property (§ 496) because he had suffered a “Three Strikes” conviction for which he was serving a life sentence. We recently rejected the superior court’s rationale in People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez). Consequently, we reverse the superior court’s order and remand for the court to reconsider defendant’s petition.

I. Background

In 2007, defendant pleaded no contest to possession of a firearm by a felon (former § 12021, subd. (a)(1)), possession of PCP for sale (Health & Saf. Code, § 11378.5), and possession of stolen property (§ 496, subd. (a)), and he admitted two strike allegations (§§ 667, subds. (b)-(i), 1170.12).[2] In 2008, defendant was sentenced to 25 years to life for the PCP count with concurrent 25 years to life terms for the possession of a firearm and possession of stolen property counts.[3]

In May 2015, defendant filed a section 1170.18 petition for resentencing of his possession of stolen property conviction. The prosecutor opposed the petition on the grounds that defendant was disqualified because he was “serving a life sentence” and would pose an unreasonable risk to public safety if resentenced. In 2016, the court denied defendant’s petition on the ground that he had a disqualifying prior conviction because he was serving a Three Strikes life sentence. Defendant timely filed a notice of appeal from the court’s denial of his petition.

II. Analysis

A defendant is disqualified from obtaining relief under section 1170.18 if he has “one or more prior convictions for an offense specified in” section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (i).) One of the offenses identified in section 667, subdivision (e)(2)(C)(iv) is “Any serious and/or violent felony offense punishable in California by life imprisonment or death.” (§ 667, subd. (e)(2)(C)(iv)(VIII).) In Hernandez, we held that a “defendant [is] not disqualified from resentencing under section 1170.18, subdivision (i) by virtue of the fact that [he has suffered a] conviction [that] was punished by an indeterminate life term under the Three Strikes law” if the offense for which the prior conviction was suffered is not itself one of the convictions identified in section 667, subdivision (e)(2)(C)(iv). (Hernandez, supra, 10 Cal.App.5th at p. 204.) Neither defendant’s possession of PCP for sale conviction, for which he was punished by an indeterminate life term under the Three Strikes law, nor his possession of a firearm conviction is itself a prior conviction identified in section 667, subdivision (e)(2)(C)(iv). Therefore, the superior court erred in determining that defendant is disqualified from seeking resentencing under section 1170.18.

The Attorney General notes that defendant is not necessarily entitled to resentencing under section 1170.18. We agree. On remand, the court must determine whether defendant’s possession of stolen property conviction qualifies for resentencing under section 1170.18. (§§ 1170.18, subd. (a); 496, subd. (a) [property worth no more than $950]).) The indictment to which defendant pleaded identified the stolen property that defendant had possessed as a “handgun.” The indictment also identified the firearm that defendant had possessed as a “handgun.” The probation report identified two guns as having been stolen: a shotgun and a pistol. Although the prosecutor initially stated that defendant’s possession of stolen property conviction was an “otherwise Proposition 47 eligible offense,” the prosecutor subsequently asserted that defendant “has not met his prima facie burden that the value of the stolen property in ct. 5 496(a)-‘guns’ is $950 or less.” Neither defendant’s petition nor anything else in the record that we have before us establishes the value of the “handgun” that defendant pleaded guilty to possessing. If the court finds that defendant’s conviction is eligible for resentencing, the court must resentence defendant unless it determines that resentencing defendant will pose an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).)

III. Disposition

The superior court’s order denying defendant’s petition is reversed, and the matter is remanded for a determination of whether defendant’s possession of stolen property conviction is eligible for resentencing and whether resentencing defendant on that conviction will pose an unreasonable risk of danger to public safety.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.

People v. Lua

H043567