Filed 10/2/15 P. v. Falcon CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                          B260598

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA226525)
         v.

JUAN ANTONIO FALCON,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Robert J.
Perry, Judge. Affirmed.
         California Appellate Project, Jonathan B. Steiner and Richard B. Lennon, 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, Stephanie C. Brenan and Toni R.
Johns Estaville, Deputy Attorneys General, for Plaintiff and Respondent.
                                  ________________________________
       Juan Antonio Falcon appeals from an order denying his petition for resentencing
pursuant to Proposition 36 (Pen. Code, § 1170.126)1 to reduce his “Three Strikes”
sentence. We affirm the order of the trial court. All of Falcon’s convictions for
assaulting a peace officer were serious felonies, and he is ineligible for resentencing
under Proposition 36.
                        FACTS AND PROCEEDINGS BELOW
       In two separate incidents in 2001, while Falcon was in custody for an earlier
offense, he participated in attacks on sheriff’s deputies. During one of those attacks, he
used a prison-made knife. On two other occasions, deputies found him in possession of
a jail-made weapon. A jury convicted him of four counts of assault on a peace officer
in violation of section 245, subdivision (c), along with three counts of possession
of a weapon while in custody in a penal institution, in violation of section 4502,
subdivision (a). Because Falcon had two previous strike convictions, the court
sentenced him under the Three Strikes law (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d))
to seven consecutive 25-year-to-life terms, plus a five-year enhancement, for a total of
180 years to life in prison.
       In December 2013, Falcon petitioned for resentencing pursuant to Proposition 36,
contending that his convictions were not for serious or violent felonies. The court denied
his petition, concluding that he was ineligible for resentencing because one of his assault
convictions involved the use of a deadly weapon and was therefore a serious felony
pursuant to section 1192.7(c). This appeal followed.




1
       Unless otherwise noted, all subsequent citations are to the Penal Code.

                                             2
                                       DISCUSSION
       Proposition 36, which includes section 1170.126 (Prop. 36, § 6, as approved by
voters, Gen. Elec. (Nov. 6, 2012), effective Nov. 7, 2012), amended the Three Strikes
law so that a defendant with two prior strikes may receive a third-strike indeterminate
sentence of 25 years to life only if convicted of a serious or violent felony. A defendant
who was convicted and sentenced to a third-strike life sentence prior to the enactment of
Proposition 36 for a felony that is not violent or serious may petition the court for
resentencing. (§ 1170.126, subd. (b).)
       Falcon contends that he is eligible for resentencing under Proposition 36 with
respect to two of his convictions assaulting an officer. He points out that, although the
jury sustained an allegation that he used a deadly weapon in an assault on two deputies on
November 28, 2001, there was no similar allegation that he used a weapon in attacking
two other deputies in a separate assault on March 26, 2001. He argues that two of his
four counts of assaulting an officer were therefore not serious felonies as defined in
section 1192.7, subdivision (c).
       Falcon is correct that his convictions for serious felonies do not prevent him from
seeking relief under Proposition 36 for other felony convictions that are neither serious
nor violent. Our Supreme Court recently held, in People v. Johnson (2015) 61 Cal.4th
674, that an inmate’s “eligibility for resentencing [under Proposition 36 must] be
evaluated on a count-by-count basis. . . . [A]n inmate may obtain resentencing with
respect to a three-strikes sentence imposed for a felony that is neither serious nor violent,
despite the fact that the inmate remains subject to a third strike sentence of 25 years to
life” on another offense. (Id. at p. 688.)
       Nevertheless, Falcon’s petition fails because he has misinterpreted the statutes in
question. Section 245 outlaws several different kinds of assaults, notably assaults with a
deadly weapon and assaults committed by means of force likely to cause great bodily
injury. Subdivision (c) of this section, under which Falcon was convicted, applies to
assaults with a deadly weapon or causing great bodily injury where the victim is a peace
officer. Section 1192.7, subdivision (c) lists many different felonies that constitute

                                              3
serious felonies for purposes of the Three Strikes law. One of the entries in the list reads
as follows: “assault with a deadly weapon, firearm, machinegun, assault weapon, or
semiautomatic firearm or assault on a peace officer or firefighter, in violation of
Section 245.” (§ 1192.7, subd. (c)(31), emphasis added.) By the terms of the statute,
then, all assaults on a peace officer in violation of section 245 are serious felonies,
regardless of whether they were committed with a deadly weapon. (People v. Semien
(2008) 162 Cal.App.4th 701, 709-710.)
       Thus, it is irrelevant that two of Falcon’s convictions under section 245,
subdivision (c) did not involve the use of a deadly weapon. They remain serious felonies,
and Falcon is ineligible for resentencing under Proposition 36.
                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED.




                                                          ROTHSCHILD, P. J.
       We concur:




                     CHANEY, J.




                     JOHNSON, J.




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