Filed 11/17/14 P. v. Bridgett CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065402

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS165958)

NEWMANN BRIDGETT, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Reversed and remanded with directions.

         Gerald J. Miller, under appointment by the Court of Appeal, for Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Warren Williams, Deputy Attorneys General, for Respondent.

         This appeal follows the denial of Newman Bridgett, Jr.'s petition to recall one of

his three strikes sentences pursuant to Penal Code1 section 1170.126.




1        All further statutory references are to the Penal Code unless otherwise specified.
       Bridgett is currently serving an indeterminate term of 59 years to life as a result of

two separate cases in which he was sentenced to an indeterminate sentence under the

three strikes law. In case No. SCS165958 Bridgett pled guilty to possession of cocaine

(Health & Saf. Code, § 11350, subd. (a)), and providing false identification, a

misdemeanor (§ 148.9, subd. (a)). In January 2003, Bridgett was sentenced to 25 years to

life under the three strikes law.

       In case No. SCD168052 Bridgett was convicted of five counts of robbery (§ 211)

with the use of a deadly weapon (§ 12022, subd. (b)(1)). He was sentenced to a term of

34 years to life, consecutive to the sentence in case No. SCS165958.

       In October 2013, Bridgett filed a petition to recall his sentence pursuant to section

1170.126 in case No. SCS165958. The trial court summarily denied the petition based

upon the finding that Bridgett had been found guilty in case No. SCD168052 of an

offense punishable by life imprisonment. (§ 1170.12, subd. (c)(2)(C)(iv)(VIII).)

       Bridgett appeals contending the trial court erred in summarily denying the petition

because it incorrectly determined the convictions for robbery in case No. SCD168052

were "offenses punishable by life imprisonment."

       The People have responded conceding the trial court erred in its interpretation of

what constitutes an offense punishable by life imprisonment. The People argue however

the order is not appealable, but even if we reach the merits the trial court's erroneous

interpretation of the statute was harmless.

       Since the briefing was completed in this case our Supreme Court has resolved the

issue of whether orders such as the one entered in this case are appealable. In Teal v.

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Superior Court (Nov. 6, 2014, S211708) ___ Cal.4th ___ [2014 Cal. LEXIS 10481] the

Supreme Court has determined such orders may be appealed. We accept the People's

concession that the trial court's interpretation of the statute was incorrect. We will

decline to address the issue of harmless error. Our review of the record demonstrates the

trial court did not consider any issues other than whether the robbery convictions were for

offenses punishable by life imprisonment. The issues which would be presented if we

wandered into the harmless error analysis of what the court could have done are virtually

all pending before our Supreme Court. The appellate courts have split on all of the issues

and the high court has granted review on almost all of the published opinions. Thus, it

does not make sense for this court to address an issue not squarely before us. Rather we

will leave the remaining potential issues for another day after the Supreme Court has

clarified the law in this area.2

                                       DISCUSSION

                                        A. Analysis

       The transcript of the hearing on the petition consists of one page. At the hearing

the court concluded that since Bridgett had received a life sentence for the robbery




2      Among the cases now pending review by the Supreme Court are People v.
Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017; People v.
Leggett (2013) 219 Cal.App.4th 846, review granted December 18, 2013, S214264
(holding that order is not appealable); but see People v. Wortham (2013) 220 Cal.App.4th
1018, 1023, review granted January 15, 2014, S214844 (holding that order is appealable);
Braziel v. Superior Court (2014) 225 Cal.App.4th 933, review granted July 30, 2014,
S218503; In re Machado (2014) 226 Cal.App.4th 1044, review granted July 30 2014,
S219819.
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offense in case No. SCD168052 he was statutorily ineligible for recall of his sentence in

case No. SCS165958, in which he was convicted of nonviolent/nonserious felonies.

       The section upon which the court apparently relied, section 1170.126, subdivision

(c)(2)(C)(iv)(VIII), renders a prisoner ineligible for resentencing where he or she has

been convicted of "[a]ny serious and/or violent felony offense punishable in California by

life imprisonment or death." Apparently, the trial court concluded that since Bridgett

received a life term for the robberies because of the three strikes law, robbery was thus an

offense punishable by life imprisonment. That conclusion is incorrect.

       As the court pointed out in the context of similar language used in a case involving

section 186.22, subdivision (b)(5), a crime is a "life offense" only if the statute defining

the crime, by its own terms, provides for a life sentence. (People v. Montes (2003) 31

Cal.4th 350, 352.) Robbery is not such an offense. By its own terms, robbery under

section 211 provides for a determinate sentence, not a life term. It only becomes a "life

term" by application of a third strike sentence. Hence, as the parties agree, the robbery

convictions in case No. SCD168052 are not life term convictions.

                                     B. Harmless Error

       As we have explained above, the trial court did not articulate any reason to deny

the petition other than conviction for a "life offense." After explaining Bridgett was not

eligible for resentencing on the robbery case, the court said: "But he does have an




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F.C.S.3 case that had a life in prison sentence imposed that he may be eligible for relief.

And given the circumstances of his imprisonment, I would recommend that further

discussions be had between counsel as to a possible resolution by stipulation. I'm sure

that contact with Mr. Bridgett will authorize that sort of relief."

       On this record we cannot say what the court intended by its comments, other than

there may be a basis of eligibility for some form of relief. The record is devoid of

information as to any follow up to the court's suggestion. Thus we cannot find any basis

to apply harmless error to the court's conceded mistake.

                                       DISPOSITION

       The order denying Bridgett's petition to recall the sentence is reversed. The trial

court is directed to conduct a new hearing on Bridgett's petition and determine anew

whether he is eligible for resentencing on case No. SCS165958.



                                                                             HUFFMAN, J.

WE CONCUR:



              BENKE, Acting P. J.


                    McINTYRE, J.




3      We have no idea what an "F.C.S." case is and there is nothing in the record to
explain the reference.
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