Filed 1/9/18 P. v. Longley CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES STANLEY LONGLEY,

Defendant and Appellant.
H043569
(Santa Clara County
Super. Ct. No. CC264793)
Defendant Charles Stanley Longley appeals an order denying his Proposition 47 petition for resentencing. (Pen. Code, § 1170.18.) Longley 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 assault with a deadly weapon (§ 245, subd. (a)(1)) under the Three Strikes law.
We agree and will reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2003, Longley was convicted of one count of assault with a deadly weapon (§ 245, subd. (a)(1), count 1) and one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 2). Longley was also found to have suffered six prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), three serious prior felony convictions (§ 667, subd. (a)), and five prison prior convictions (§ 667.5, subd. (b)). He was sentenced to concurrent indeterminate terms of 25 years to life on counts 1 and 2, consecutive to a determinate term of 15 years on the enhancements.
On March 23, 2015, Longley filed a Proposition 47 petition for resentencing of his conviction for possession of a controlled substance from a felony to a misdemeanor. (§ 1170.18, subd. (a).) After the matter was briefed, the trial court denied the petition by written order dated April 28, 2016. The trial court found that Longley was ineligible for resentencing under Proposition 47 because his conviction for assault with a deadly weapon was punishable by life imprisonment pursuant to the Three Strikes law.
Longley timely appealed.
II. DISCUSSION
Longley argues that the trial court erred in denying his petition for resentencing because he was serving an indeterminate term of 25 years-to-life for assault with a deadly weapon. We agree.
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 a 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), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) is an enumerated offense that is eligible for reduction to a misdemeanor under Proposition 47. (§ 1170.18, 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).) “Any serious and/or violent felony offense punishable in California by life imprisonment or death” is among the disqualifying prior offenses. (§ 667, subd. (e)(2)(C)(iv)(VIII).)
Relying on People v. Jones (2009) 47 Cal.4th 566 and People v. Williams (2014) 227 Cal.App.4th 733, the People contend that Longley’s conviction for assault with a deadly weapon and resulting indeterminate life sentence under the Three Strikes law is encompassed within the scope of section 667, subdivision (e)(2)(C)(iv)(VIII). Accordingly, in the People’s view, Longley is categorically ineligible for resentencing under section 1170.18, subdivision (i).
This court recently rejected the same argument in Hernandez where we held that a “defendant was not disqualified from resentencing under section 1170.18, subdivision (i) by virtue of the fact that his [second degree] robbery conviction was punished by an indeterminate life term under the Three Strikes law.” (People v. Hernandez (2017) 10 Cal.App.5th 192, 204 (Hernandez).) In interpreting the plain language of section 667, subdivision (e)(2)(C)(iv)(VIII), we noted that “[t]he word ‘offense’ generally refers to a criminal act” and concluded that, “[b]y using the term ‘offense punishable . . . by life imprisonment,’ section 667, subdivision (e)(2)(C)(iv)(VIII) focuses on the offense and its associated statutory punishment, not the type of offender or the effect of other prior convictions on the offender’s sentence.” (Hernandez, supra, at p. 199.) Because “robbery itself is not ‘[a] serious and/or violent felony offense punishable in California by life imprisonment or death,’ ” the offense is not encompassed within section 667, subdivision (e)(2)(C)(iv)(VIII). (Hernandez, supra, at p. 204.) Instead, second degree robbery “has an associated statutory punishment of two, three, or five years.” (Id. at p. 202.)
Here, as in Hernandez, Longley is not disqualified from resentencing under Proposition 47 based on his conviction for assault with a deadly weapon. Assault with a deadly weapon (other than a firearm) is punishable by “imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars.” (§ 245, subd. (a)(1).) We will accordingly reverse the trial court’s order denying Longley’s section 1170.18 petition and remand the matter for a determination of whether resentencing defendant on his conviction for possession of a controlled substance “would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)
III. DISPOSITION
The order denying defendant’s Penal Code section 1170.18 petition is reversed. The case is remanded to the superior court for a determination of whether resentencing defendant “would pose an unreasonable risk of danger to public safety.” (Pen. Code, § 1170.18, subd. (b).)







Premo, J.





WE CONCUR:






Elia, Acting P.J.








Grover, J.