Filed 9/21/15 P. v. Gonzales CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                2d Crim. No. B261367
                                                                        (Super. Ct. No. YA049823-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

PEDRO PAGAN GONZALES,

     Defendant and Appellant.


                   Pedro Pagan Gonzales appeals an order denying his petition to recall his
2002 third strike sentences pursuant to Proposition 36 (Pen. Code, § 1170.126),1
following his convictions for first degree residential burglary (§ 459) (counts 1 and 2),
possession of a firearm by a felon (former § 12021, subd. (a)(1) (count 4), receiving
stolen property (§ 496) (counts 6-9), and conspiracy to commit residential burglary
(§§ 182, subd. (a)(1), 459) (count 10). Gonzales "was sentenced to a term of 100 years to
life, consisting of four consecutive terms of 25 years to life" based on four third strikes:
count 1 (first degree burglary), count 2 (first degree burglary), count 4 (possession of a
firearm by a felon), and count 6 (receiving stolen property). (People v. Gonzales (Oct.
15, 2003, No. B159396) [nonpub. opn.].)




1
    All statutory references are to the Penal Code.
              We conclude the trial court erred by ruling Gonzales was "ineligible for
resentencing" under Proposition 36 for any of his third strike convictions because "[o]ne
of Defendant's current convictions is for first degree burglary." We reverse and remand.
                                           FACTS
              In 2002, Gonzales was sentenced to four consecutive 25-year-to-life three
strike terms. Two were based on third strikes for a serious felony--first degree residential
burglary (counts 1 and 2). (§ 1192.7, subd. (c)(18).) The other two life sentences were
based on felonies that qualified as third strikes prior to Proposition 36--possession of a
firearm by a felon and receiving stolen property.
              In 2014, Gonzales filed a petition "to recall sentence" pursuant to
Proposition 36. (§ 1170.126.) He claimed that 1) only two of his four three strike life
sentences were based on "serious" third strike felonies, and 2) he was eligible for
resentencing on the two third strikes that were not serious or violent felonies.
              The trial court ruled Gonzales was not eligible for resentencing on any of
his third strike felonies. It said, "One of Defendant's current convictions is for first
degree burglary in violation of Penal Code section 459, which is a serious felony . . .
thereby making Defendant ineligible for resentencing . . . . " (Italics added.) It denied
the petition "with prejudice."
                                       DISCUSSION
                            Resentencing Under Proposition 36
              Gonzales contends the trial court erred by denying his petition to recall a
"third 'strike' sentence for receiving stolen property" solely because one of his other
convictions involved first degree residential burglary. The People agree and contend the
court also improperly prevented him from seeking resentencing on the third strike for
possession of a firearm by a felon.
              Proposition 36, the Three Strikes Reform Act of 2012, "created a
postconviction release proceeding," which gives a prisoner the opportunity to "have his
or her sentence recalled." (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th
1007, 1010.) "[A] prisoner currently serving a sentence of 25 years to life under the pre-

                                               2
Proposition 36 version of the Three Strikes law for a third felony conviction that was not
a serious or violent felony may be eligible for resentencing as if he or she only had one
prior serious or violent felony conviction." (People v. White (2014) 223 Cal.App.4th
512, 517.)
              If the prisoner meets the "resentencing eligibility criteria" and is not subject
to the "disqualifying exceptions or exclusions," he or she is "entitled to resentencing
relief under the Reform Act," unless the court finds he or she "'would pose an
unreasonable risk of danger to public safety.'" (People v. White, supra, 223 Cal.App.4th
at p. 517.)
              There are exclusions from resentencing where: 1) the current offense
"involves controlled substances and specified findings are made concerning the quantity
of controlled substances involved" or "specified" sex offenses; 2) "[d]uring the
commission of the current offense, the defendant used a firearm, was armed with a
firearm," or intended to cause great bodily injury; or 3) if the defendant has a prior
conviction for "specified sex offenses," "any homicide offense or attempted homicide
offense [§§ 187-191.5]," "solicitation to commit murder, assault with a machine gun on a
peace officer or firefighter, possession of a weapon of mass destruction, or any serious or
violent felony punishable in California by life imprisonment or death." (People v.
Johnson (2015) 61 Cal.4th 674, 681-682, italics added.)
              The People and Gonzales claim Gonzales does not fall within these
exclusions. They correctly note that his third strike for receiving stolen property is not a
serious or violent felony. (People v. Hall (1998) 67 Cal.App.4th 128, 139.)
Consequently, Gonzales should have been permitted to pursue his petition for
resentencing on that count. (People v. White, supra, 223 Cal.App.4th at p. 517.)
              The People also contend Gonzales "received a sentence of 25 years to life"
based on another count that does "not qualify as a serious or violent" felony--possession
of a firearm by a felon. They claim, consequently, he "is eligible to be resentenced" on
that count.


                                              3
              "For purposes of the Three Strikes law as amended by the Reform Act, this
felony offense [possession of a firearm by a felon (§ 12021, subd. (a))] is not a violent
felony within the meaning of section 667.5, subdivision (c), or a serious felony within the
meaning of section 1192.7, subdivision (c)." (People v. White, supra, 223 Cal.App.4th at
p. 518.) But where "the record establishes that a defendant convicted under the pre-
Proposition 36 version of the Three Strikes law as a third strike offender of possession of
a firearm by a felon was armed with the firearm during the commission of that offense,
the armed-with-a-firearm exclusion applies and the defendant is not entitled to
resentencing relief under the Reform Act." (White, at p. 519, italics added.)
              The trial court did not reach these issues. It concluded Gonzales was
precluded from resentencing on any count under Proposition 36 because he had a first
degree burglary conviction in a separate count. But this barrier to resentencing was
recently rejected by our Supreme Court in People v. Johnson, supra, 61 Cal.4th 674, 695.
The court said, "[W]e conclude that resentencing is allowed with respect to a count that is
neither serious nor violent, despite the presence of another count that is serious or
violent." (Ibid.)
                                      DISPOSITION
              The order denying the petition is reversed. On remand, the trial court shall
consider the petition, exercise its discretion, and proceed consistent with People v.
Johnson, supra, 61 Cal.4th 764.
              NOT TO BE PUBLISHED.



                                           GILBERT, P. J.
We concur:


              YEGAN, J.



              PERREN, J.

                                              4
                                William C. Ryan, Judge

                         Superior Court County of Los Angeles

                          ______________________________


             Nancy Gaynor, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General,
for Plaintiff and Respondent.




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