Filed 9/10/15 P. v. Robinson CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B260635

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA019803)
         v.

GARLON GRADY ROBINSON,

         Defendant and Appellant.


         Appeal from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed in part, reversed in part with directions.
         Larry Pizarro, 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, Assistant Attorney General, Noah P. Hill and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
       In April 2000, a jury convicted defendant, Garlon Grady Robinson, of: two counts
of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a))1; deadly weapon assault, to
wit, steel toe boots (former § 245, subd. (a)(1), Stats. 1999, ch. 129, § 1); and assault by
means of force likely to produce great bodily injury (ibid.). Defendant was found to have
sustained two prior convictions within the meaning of sections 667, subdivisions (b)
through (i) and 1170.12. Defendant was sentenced to consecutive 25-years-to-life terms
on the two aggravated assault counts. We affirmed defendant’s conviction on appeal.
(People v. Robinson (Apr. 19, 2001, B142456) [nonpub. opn.].)
       The present appeal is from the denial of defendant’s section 1170.126 resentencing
petition. The trial court found defendant was ineligible for resentencing because, “One of
[d]efendant’s current convictions is for assault with a deadly weapon, to wit, steel toe
boots . . . , which makes the underlying felony conviction a serious felony pursuant to . . .
section 1192.7[, subdivision] (c)(23), making [d]efendant ineligible for resentencing
pursuant to . . . section 1170.126[, subdivision] (e)(2).” This was the sole ground upon
which the trial court denied defendant’s sentence recall petition. Deadly weapon assault
is a serious felony under section 1192.7, subdivision (c)(31). Further, any felony in
which the defendant personally used a dangerous or deadly weapon also is a serious
felony under section 1192.7, subdivision (c)(23). Here, in the course of assaulting his
wife, defendant kicked her with a steel-toe boot. (People v. Robinson, supra, typed opn.
at pp. 3-6.)
       We agree that defendant is ineligible for resentencing on his deadly weapon
assault conviction. But in People v. Johnson (2015) 61 Cal.4th 674, 679 our Supreme
Court held, “[T]he 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.” Thus, defendant’s deadly weapon assault conviction does not
prevent resentencing on the remaining assault by means of force likely to produce great

1      Further statutory references are to the Penal Code.



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bodily injury count. The sole ground relied upon by the trial court was that defendant’s
deadly weapon assault injury conviction barred any resentencing on the other count. The
sole ground litigated on appeal is that the deadly weapon assault conviction bars recall of
defendant’s sentence.
       Thus, based on the trial court’s express ruling and the sole grounds raised on
appeal, the order denying defendant’s sentence recall petition is reversed in part. No
doubt, there are other issues that remain for resolution once the remittitur issues. The
trial court never determined whether record of defendant’s conviction demonstrated the
assault by means of force likely to inflict conviction was a serious felony. (See People v.
Manning (2014) 226 Cal.App.4th 1133, 1141; People v. White (2014) 223 Cal.App.4th
512, 527.) And there may be other issues that warrant further litigation. And even if the
defendant is eligible for resentencing on the assault by means of force likely to produce
great bodily injury count, it may be he is unsuitable. (See People v. Johnson, supra, 61
Cal.4th at p. 682; § 1170.126, subd. (f).) We leave these other matters once the remittitur
issues in the trial court’s good hands. That part of the trial court’s ruling finding
defendant is ineligible for resentencing is affirmed.




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       The order denying the sentence recall petition of defendant, Garlon Grady
Robinson, is reversed as to his conviction of assault by means of force likely to produce
great bodily injury. Upon remittitur issuance, the trial court is to proceed to resolve other
issues. The order denying his sentence recall petition on the deadly weapon assault
conviction is affirmed.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                            TURNER, P. J.



We concur:



       MOSK, J.



       KIRSCHNER, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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