Filed 10/16/17 P. v. Johnson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ERYCK JOHNSON, Defendant and Appellant.

H043566 (Santa Clara County Super. Ct. No. CC071664)

Defendant Eryck Johnson appeals an order denying his Proposition 47 petition for resentencing. (Pen. Code, § 1170.18.)[1] Defendant argues that the trial court erred when it found that he was ineligible for resentencing under Proposition 47 because he was serving an indeterminate life term for robbery (§§ 211, 212.5, subd. (c)) under the Three Strikes law. We agree and reverse the order.

STATEMENT OF THE CASE[2]

On February 14, 2001, defendant was convicted of second degree robbery (§§ 211, 212.5, subd. (c)), second degree burglary (§§ 459, 460, subd. (b)), and receiving stolen property (§ 496, subd. (a)). The trial court found that defendant had suffered two strike prior convictions (§§ 667, subds. (b)-(i), 1170.12), two serious felony prior convictions (§ 667, subd. (a)), and had served three prior prison terms (§ 667.5, subd. (b)).

The court sentenced defendant to a total term of 37 years-to-life for the robbery count, and stayed punishment for the second degree burglary and receiving stolen property pursuant to section 654.

On March 5, 2015, defendant filed a Proposition 47 petition for resentencing of the second degree burglary and receiving stolen property convictions. (§ 1170.18, subd. (a).)

On April 28, 2016, the court denied defendant’s petition, finding him ineligible for resentencing because he was serving a life term for the robbery conviction. On May 5, 2016, defendant filed a notice of appeal.

DISCUSSION

Defendant asserts that the trial court erred in denying his petition for resentencing based on the fact that he was serving a term of 37 years-to-life for robbery. Defendant relies on our recent decision in People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez), arguing that his robbery conviction does not make him ineligible for resentencing under Proposition 47.

The Safe Neighborhoods and Schools Act (Proposition 47, as approved by the voters, Gen Elec. (Nov. 4, 2014)) added section 1170.18, which became effective on November 5, 2014. Proposition 47 amended certain statutes to reduce those offenses to misdemeanors and it also added new misdemeanor offenses. (§ 1170.18, subd. (a); People v. Chen (2016) 245 Cal.App.4th 322, 326.) “A person who, on November 5, 2014, was serving a sentence for a conviction . . . who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense may petition for recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .” (§ 1170.18, subd. (a).)

Under section 1170.18, subdivision (a), receiving stolen property (§ 496) is an enumerated offense that is eligible for reduction to a misdemeanor under Proposition 47. (§ 1170.18, subd. (a).) Additionally, Proposition 47 created a new crime of shoplifting under section 459.5, which punishes “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” (§ 459.5, subd. (a).)

However, a defendant who has one or more disqualifying prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv) is ineligible to have his felony conviction reduced to a misdemeanor. (§ 1170.18, subd. (i).) Relevant to the present case is section 667, subdivision (e)(2)(C)(iv)(VIII) which lists “[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death.”

Relying on People v. Jones (2009) 47 Cal.4th 566 and People v. Williams (2014) 227 Cal.App.4th 733, the People contend that defendant’s robbery conviction and indeterminate life sentence under the Three Strikes law is encompassed within the scope of section 667, subdivision (e)(2)(C)(iv)(VIII) and thus defendant is disqualified from resentencing relief under section 1170.18, subdivision (i).

This court recently rejected the same argument in Hernandez where we held that the “defendant was 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’ under section 667, subdivision (e)(2)(C)(iv)(VIII).” (Hernandez, supra, 10 Cal.App.5th at p. 204.) Rather, robbery “has an associated statutory punishment of two, three, or five years.” (Id. at p. 202.)

Here, as in Hernandez, defendant is not disqualified from resentencing under Proposition 47 based on his robbery conviction. The trial court erred in denying defendant’s petition.

DISPOSITION

The order denying defendant’s petition for resentencing is reversed.

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