Filed 2/27/18 P. v. Thomas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

CURTIS DOUGLAS THOMAS,

Defendant and Appellant.


E068546

(Super.Ct.No. PEF006653)

OPINION


APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed and remanded.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Falkenstein Hennick and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Curtis Douglas Thomas appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.18 (Proposition 47). We reverse, based on People v. Hernandez (2017) 10 Cal.App.5th 192.
FACTS AND PROCEDURE
On October 22, 2002, defendant pled guilty to two counts of petty theft with a prior (§ 666), one count of dissuading a witness from reporting a crime (§ 136.1, subd. (a)(1)), and one count of resisting/deterring law enforcement (§ 69). Defendant also admitted to having a strike prior (§§ 667, subds. (c) & (e), 1170.12, subd. (c)). The court sentenced defendant to a total of 12 years eight months in prison. The sentence was to be served concurrently with a third strike sentence of 40 years to life in another case for an attempted robbery (§§ 664, 211), which included three, five-year sentence enhancements.
On January 9, 2015, defendant filed his petition for resentencing. Defendant argued that his petty theft with a prior offenses would have qualified as misdemeanors had they been committed after passage of Proposition 47. The People opposed the petition, arguing defendant was ineligible for resentencing because defendant’s third strike sentence made his attempted robbery conviction “a serious and/or violent felony offense punishable in California by life imprisonment or death,” as set forth in section 667, subdivision (e)(2)(C)(iv)(VIII), which disqualified him from the requested resentencing. (§ 1170.18, subd. (i) [“This section does not apply to a person who has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.”].) After a hearing on the petition, the court agreed with the People and denied the petition on that basis.
This appeal followed.
DISCUSSION
Defendant argues, the People concede, and this Court agrees, that the matter should be remanded to the trial court to reconsider defendant’s petition for resentencing. On March 28, 2017, People v. Hernandez, supra, 10 Cal.App.5th 192, clarified that the exception contained in section 1170.18, subdivision (i), does not extend to life sentences imposed solely as a result of the alternative sentencing provisions of the three strikes law, as was defendant’s life sentence. A defendant is “not disqualified from resentencing under section 1170.18, subdivision (i) by virtue of the fact that his robbery conviction was punished by an indeterminate life term under the Three Strikes law, since robbery itself is not ‘[a] serious and/or violent felony offense punishable in California by life imprisonment or death.’” (Id. at p. 203.)
DISPOSITION
The order denying defendant’s petition for resentencing under Proposition 47 is reversed. The matter is remanded to the trial court to reconsider defendant’s petition for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.


We concur:


McKINSTER
J.


MILLER
J.