Filed 12/8/15 P. v. Tatmon CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143914
v.
MITCHELL TATMON,                                                     (Alameda County
                                                                     Super. Ct. No. C146926A)
         Defendant and Appellant.

         Mitchell Tatmon appeals from the superior court’s denial of his petition for recall
of sentence, which he brought pursuant to the Three Strikes Reform Act of 2012 (Act).
His court-appointed counsel initially filed a brief raising no legal issues and requesting
that this court independently review the record pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende). Defendant was informed of his right to file a supplemental brief
and did not do so. While this matter was pending, our Supreme Court issued People v.
Johnson (2015) 61 Cal.4th 674 (Johnson). Its holding contradicted the reasoning
employed by the superior court to deny defendant’s petition. We asked for and received
supplemental briefing regarding Johnson from defendant, via his counsel, and the People.
         Upon our independent review of the record pursuant to Wende and our review of
the parties’ supplemental briefs, we conclude there are no arguable appellate issues for
our review and affirm the superior court’s order.
                                                 BACKGROUND
         On September 23, 2014, defendant filed his petition with the Alameda County
Superior Court. He argued that he was eligible for resentencing under the Act, which


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was passed by California’s voters as Proposition 36 and codified as Penal Code
section 1170.126.1 The Act permits resentencing for inmates serving certain
indeterminate terms of imprisonment “for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)
       In the written order appealed from here, the superior court summarized
defendant’s convictions as follows: “A first amended information charged [defendant]
with carjacking (count 1; § 215, subd. (a)), second degree commercial burglary (count 2;
§ 459), false imprisonment by violence (count 3, § 236), and second degree robbery
(count 4, § 211), with special allegations of personal use of a knife on the first three
counts (§ 12022, subd. (b) (1)). [¶] A jury sustained each charge and special allegation.
[Defendant] then waived his rights and admitted numerous alleged prior convictions,
including several strikes on each count (§ 667, subd. (e) (2) (A)), § 1170.12,
subd. (c) (2) (A)). The trial court sentenced him, under the Three Strikes Law, to an
aggregate term of 93 years to life in prison, the main component being 75 years to life for
three consecutive Three Strike terms (on counts two, three and four).” The parties do not
dispute the accuracy of the superior court’s summary.2
       Given these convictions, the superior court denied defendant’s petition pursuant to
People v. Anthony (2014) 230 Cal.App.4th 1176 (Anthony). Anthony held that the Act
cannot be applied to reduce a Three Strikes sentence when any one of the Three Strikes
offenses underlying the sentence is a serious or violent felony. The superior court,
applying Anthony’s holding to the present case, correctly concluded that “any robbery” is
defined to be a violent felony pursuant to section 667.5, subd. (c)(9), one of the statutes
that defines “serious or violent felonies” under the Act. (§ 1170.126, subd. (e)(1).) The
       1
           All statutory references are to the Penal Code.
       2
         The People request that we take judicial notice of the record of defendant’s prior
appeal, People v. Tatmon, case number A109381, and argue that defendant in his
supplemental brief has done the same by implication. We deny this request as
unnecessary in light of the superior court’s undisputed summary of defendant’s
convictions.


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court further determined that, although defendant was also serving his Three Strikes
sentence pursuant to his second degree burglary and false imprisonment by violence
convictions, these did not fall within the definitions of violent or serious felonies under
the Act. However, the court concluded, since “one of the felonies for which [defendant]
is serving the Three Strike sentence is a violent felony, he is ineligible for resentencing.
The fact that the remaining two felonies for which he is serving Three Strike sentences
are not serious or violent is irrelevant.”
       After the superior court’s ruling, our Supreme Court ordered Anthony not to be
published in People v. Anthony (Jan. 28, 2015, S223226) 2015 Cal. LEXIS 583. The
court later issued Johnson, in which it held “that when a court resentences a third strike
defendant . . . the presence of a conviction of a serious or violent felony does not
disqualify an inmate from resentencing with respect to a current offense that is neither
serious nor violent.” (Johnson, supra, 61 Cal.4th at p. 679.) This directly contradicts
Anthony and the superior court’s reason for denying defendant’s petition.
                                        DISCUSSION
       Defendant’s appointed counsel initially did not identify any arguable appellate
issues for our review. In her supplemental briefing on behalf of defendant, she argues
that “[i]n this pre-Johnson case, the court did not evaluate [defendant’s] eligibility for
resentencing on a count-by-count basis. [¶] Therefore, under Johnson, this court may
remand the matter to the lower court to fashion a sentence that complies with the
Supreme Court’s holding.”
       In their supplemental brief, the People argue that the superior court correctly
denied defendant’s petition, regardless of its reasoning, because defendant remains
ineligible for resentencing under Johnson, since all of his Three Strike convictions are for
serious felonies. That is, as the superior court concluded, defendant’s robbery conviction
is statutorily defined to be a violent felony. (See § 667.5, subd. (c)(9).) But, while the
superior court was correct that neither of defendant’s other two convictions—for
commercial burglary and false imprisonment—is classified by itself as a serious or



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violent felony,3 the court overlooked that each becomes a serious felony when it is
accompanied by a finding that the defendant personally used a deadly or dangerous
weapon. (§ 1192.7, subd. (c)(23) [a serious felony includes “any felony in which the
defendant personally used a dangerous or deadly weapon”].) The superior court’s
summary of defendant’s convictions includes that the jury sustained “special allegations
of personal use of a knife on the first three counts.” These counts include commercial
burglary (count two) and false imprisonment by violence (count three).4 Therefore, the
People argue, all of appellant’s felony convictions were for serious or violent felonies and
the superior court’s denial of defendant’s petition should be affirmed.
       The People are correct. Defendant’s Three Strikes convictions are for felonies that
either are categorically violent or are classified as serious by dint of the jury’s finding
that appellant personally used a dangerous or deadly weapon in their commission.
Therefore, the superior court correctly ruled that he was not eligible for resentencing at
all under Section 1170.126. Regardless of the court’s reasoning, its ruling is correct and,
therefore, must be affirmed. “ ‘No rule of decision is better or more firmly established by
authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling
or decision, itself correct in law, will not be disturbed on appeal merely because given for
a wrong reason. If right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have moved the trial court to its
conclusion.’ ” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)




       3
         It would appear that “false imprisonment by violence” is by definition a violent
felony, but it is not defined as such by subdivision (c) of section 667.5 or subdivision (c)
of section 1192.7 and, therefore, is not to be considered as a felony eligible for
resentencing under the Act. (§ 1170.126, subd. (e)(1).)
       4
          It almost goes without saying that a knife is a “dangerous or deadly weapon.”
(See, e.g., People v. Solis (2015) 232 Cal.App.4th 1108, 1121 fn. 5 [defendant’s use of a
deadly weapon, a knife, made his crime a serious felony] .)


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                                      DISPOSITION
       We conclude based on our independent review pursuant to Wende and our review
of the parties’ supplemental briefs that there are no arguable appellate issues for our
review. The judgment is affirmed.




                                                  STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.




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