Filed 3/16/18 P. v. Stephens CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE


THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIE FRED STEPHENS, SR.,

Defendant and Appellant.
B283090

(Los Angeles County
Super. Ct. No. NA042596)

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded.
California Appellate Project, Jonathan B. Steiner and Richard B. Lennon, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Theresa A. Patterson, Deputies Attorney General, for Plaintiff and Respondent.

In 2000, a jury convicted defendant and appellant Willie Fred Stephens, Sr., of possession of a firearm by a felon (count 1; former Pen. Code, § 12021) and possession of a controlled substance (count 2; Health & Saf. Code, § 11350, subd. (a)). The jury also found defendant had two prior strike convictions. Defendant received a 25 years-to-life term for the felon in possession of a firearm conviction and a concurrent 25 years to life for the drug conviction.
Following the passage of Proposition 36 and enactment of section 1170.126, defendant sought a hearing to recall his sentence on the conviction for possession of a firearm. The superior court held a hearing, but agreed with the prosecution that defendant was ineligible for recall and resentencing. In so ruling, the superior court found the prosecution proved by a preponderance of the evidence that the firearm “was readily available” to defendant, rendering him ineligible for resentencing.
Subsequently, the Supreme Court has held the “beyond a reasonable doubt” standard applies to determine resentencing eligibility. (People v. Frierson (2017) 4 Cal.5th 225, 239-240.) The Attorney General agrees with defendant that remand is appropriate for a new eligibility hearing under the appropriate legal standard. Accordingly, we reverse the order finding defendant ineligible for a recall and resentencing on count 1 and remand for a new hearing.


DISPOSITION
The order is reversed and the matter is remanded for a new eligibility hearing.



DUNNING, J.*


We concur:



KRIEGLER, Acting P. J.



BAKER, J.