Filed 3/19/18 P. v. Wardzala 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JOHN LAWRENCE WARDZALA,

Defendant and Appellant.
H043564
(Santa Clara County
Super. Ct. No. C1104912)

Defendant John Lawrence Wardzala appeals from an order denying his petition for resentencing under Penal Code section 1170.18. The trial court found that defendant was not entitled to resentencing, because he was serving a life sentence under the “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12.) Defendant contends, and the Attorney General concedes, that the trial court erred and the matter should be remanded for the trial court to consider the merits of his resentencing petition. We agree and reverse the order.

I. Statement of the Case
In 2012, defendant was convicted of first degree burglary (§§ 459, 460, subd. (a) - count 1), with an allegation that another person, other than an accomplice, was present in the residence during the offense (§ 667.5, subd. (c)(21)). He was also convicted of receiving stolen property (§ 496, subd. (a) - count 2). The trial court also found that defendant had three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)), and had served one prior prison term (§ 667.5, subd. (b)). As to each count, the trial court sentenced defendant to 25 years to life under the Three Strikes law. The sentence on the receiving stolen property conviction was stayed (§ 654). The trial court also sentenced defendant to a 10-year term for the prior serious felony convictions.
In February 2015, defendant filed a petition for resentencing under section 1170.18 to reduce his 2012 conviction for receiving stolen property to a misdemeanor. Following a hearing, the trial court denied the petition on the ground that “felony offenses punishable by life imprisonment as a result of the Three Strikes law are among the disqualifying offenses specified in Penal Code § 667(e)(2)(C)(iv)[VIII]) and subdivision (i) of section 1170.18.” Since defendant was serving a Three Strikes sentence, he had a “disqualifying conviction” and was ineligible for resentencing.

II. Discussion
Defendant contends, and the Attorney General concedes, that the trial court’s order denying his resentencing petition must be reversed.
In People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez), this court considered the identical issue presented in the case before us. In Hernandez, the defendant was convicted of robbery and petty theft with a prior conviction. (Id. at p. 195.) The trial court sentenced defendant to a term of 25 years to life under to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) for the robbery conviction. (Hernandez, at p. 195.) The term for his petty theft conviction was stayed (§ 654). (Hernandez, at p. 195.) After Proposition 47 went into effect, the defendant filed a petition for resentencing under section 1170.18 and the trial court found that the defendant was ineligible due to his life term. (Hernandez, at p. 197.) This court 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).” (Id. at p. 204.) The matter was remanded for resentencing. (Ibid.) Accordingly, we accept the Attorney General’s concession.

III. Disposition
The order denying the petition for resentencing under section 1170.18 is reversed. The matter is remanded to the trial court for a determination of whether resentencing defendant “would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)











_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.