Filed 10/30/15 P. v. Cross CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062173

v.                                                                       (Super.Ct.Nos. RIF108334 &
                                                                          RIF108604)
MATTHEW STEVEN CROSS,
                                                                         OPINION
         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed in part; reversed and remanded in part.

         James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and

Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Matthew Steven Cross appeals from an order denying his

petition to recall his life sentence under the Three Strikes Reform Act of 2012, added by

Proposition 36 (as approved by voters, Gen. Elec. (Nov. 6, 2012)) (the Reform Act).

(Pen. Code, § 1170.126.)1 On appeal, defendant argues that the Reform Act allows him

to seek resentencing for his two nonserious, nonviolent qualifying felony convictions in

case No. RIF108334. Following our Supreme Court’s recent decision in People v.

Johnson (2015) 61 Cal.4th 674 (Johnson), we agree with defendant and remand the

matter.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND2

       On February 12, 2003, defendant and his accomplice Manuel Lopez stole a car

from the Riverside Auto Auction holding lot. A security guard on duty identified Lopez

as the driver.3 The security guard did not see any passengers in the stolen vehicle.

However, as the vehicle fled, several other witnesses observed two people in the stolen

vehicle.


       1   All future statutory references are to the Penal Code, unless otherwise stated.

       2 A summary of the factual background in case No. RIF108334 is taken from this
court’s nonpublished opinion in defendant’s prior appeal, case No. E040378. (See
People v. Cross (July 20, 2007, E040378) [nonpub. opn.], at pp. 2-6.)

       3  Lopez was originally charged with the same offenses as defendant. Lopez
pleaded guilty to one count of carjacking, two counts of vehicle theft as a repeat offender,
and two counts of receipt of stolen property. He was sentenced to prison for a total term
of six years. (People v. Cross, supra, E040378, p. 3.)


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       Around 3:00 p.m. on February 12, a witness saw two men, whom he later

identified as defendant and Lopez, walking in a field in Corona. Defendant had his arm

around Lopez’s neck and had his right hand in his jacket pocket as if he were holding a

gun on Lopez. Lopez and defendant jumped into a white truck that was parked in a

residential driveway; defendant got into the driver’s seat, and Lopez got in on the

passenger side. The truck took off at a high rate of speed, jumped the curb, and ran into a

flower bed in front of a sign for the housing development, where it became stuck. Lopez

jumped out and tried to push the truck while defendant stepped on the gas to try to get the

truck “unstuck” from the mud. A van pulled up in the middle of the intersection. The

driver got out of the van, and the van fled, leaving the driver in the street.

       The driver of the van after seeing two men, one White and one Hispanic, trying to

get a white truck out of the mud, stopped to assist when defendant waved to him as if

signaling for help. When the driver stopped, defendant opened the passenger door, and

ordered the driver to get out of the van while placing his arm underneath his shirt and

pointing toward the driver as if he had a gun. Defendant pushed the driver out of the van

and then moved into the driver’s seat while Lopez got in on the passenger side. Both

men took off in the van at a high rate of speed.

       The van eventually slid down a hill and got stuck in the mud. Two male

witnesses, who saw the van speeding through the parking lot near the Prado Dam and the

Prado Olympic shooting park, grabbed their guns. They saw defendant and Lopez exit

the van and also saw defendant with his left arm around Lopez’s neck and his other hand



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in his pocket as if he had a gun. The men ordered defendant to take his hand out of his

pocket, to release Lopez, and lie down on the ground. When defendant and Lopez failed

to comply, one of the men fired a shot over their heads. Both defendant and Lopez then

hit the ground, and were ordered to stay put until the police arrived. Defendant got up

and walked away, but Lopez stayed with the men. Defendant was eventually arrested

after he was spotted walking fast on a horse trail near the 71 freeway and hiding in the

backyard of a residence.

       A jury found defendant guilty of carjacking in count 1 (§ 215, subd. (a)) and of

vehicle theft with a prior vehicle theft in counts 2 and 3 (§ 666.5, subd. (a); Veh. Code,

§ 10851.) In a bifurcated proceeding, the trial court found true the allegation that

defendant had suffered two prior strike convictions, a prior Vehicle Code section 10851

conviction for purposes of counts 1 and 2, a prior prison term, and a prior serious felony

conviction. The trial court sentenced defendant to 83 years to life in prison as follows:

an indeterminate term of 27 years to life on count 1, a consecutive term of 25 years to life

on count 2, a consecutive term of 25 years to life on count 3, a consecutive term of

five years for the prior serious felony conviction, and a consecutive term of one year for

the prior prison term.

       In case No. RIF108604, on September 20, 2006, a jury found defendant guilty of

possession of a firearm by a felon (former § 12021, subd. (a)(1)) and possession of




                                             4
methamphetamine while armed (Health & Saf. Code, § 11370.1).4 In a bifurcated

proceeding, the jury found true that defendant had suffered two prior strike convictions.

Defendant was sentenced to concurrent indeterminate terms of 25 years to life on both

counts with the sentences to run consecutively to the sentence in case No. RIF108334.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Reform Act, which went into effect the next day. It amended sections 667 and 1170.12

so that an indeterminate term of 25 years to life in prison is applied only where the third

strike offense is a serious or violent felony or the prosecution pleads and proves an

enumerated triggering factor. (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2).)

       The Reform Act also created section 1170.126, which provides a procedure for

resentencing “persons presently serving an indeterminate term of imprisonment” under

the Three Strikes law “whose sentence under this act would not have been an

indeterminate life sentence.” (§ 1170.126, subd. (a).) Such a person may file a petition

to recall his or her sentence and be resentenced as a second strike offender. (§ 1170.126,

subd. (b).) Essentially, an inmate is eligible for such resentencing if his or her

commitment offense is not a serious or violent felony and none of the factors that would

trigger a third strike sentence under the Three Strikes law as reformed by the Reform Act

applies. (§ 1170.126, subd. (e).) Resentencing of qualified inmates may nonetheless be




       4The jury acquitted defendant of simple possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)).


                                              5
refused if the trial court, “in its discretion, determines that resentencing the petitioner

would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)

       On September 9, 2014, in case No. RIF108334, defendant filed a petition to recall

his sentence and to be resentenced under section 1170.126. On September 15, 2014, the

trial court denied defendant’s petition, finding defendant ineligible for resentencing under

section 1170.126. The court noted that defendant could not split the two vehicle theft

counts from the carjacking count and be separately resentenced.

       On October 9, 2014, defendant filed an “ex parte” motion to modify his sentence

and to reduce the $5,000 restitution fine in case No. RIF108604. The trial court

considered and denied the motion.

       Defendant appealed from the denial of his petition to recall his sentence in case

No. RIF108334, as well as from the denial of his “ex parte motion for modification of

sentence”5 in case No. RIF108604

                                               II

                                        DISCUSSION

       Defendant acknowledges that he is ineligible for resentencing on his conviction

for carjacking, which is a serious felony under sections 1192.7, subdivision (c)(27), and

667.5, subdivision (c)(17). (§ 1170.126, subd. (e)(1) [an inmate is eligible for

resentencing if he or she “is serving an indeterminate term of life imprisonment imposed

[under the Three Strikes law] for a conviction of a felony or felonies that are not defined

       5   Defendant makes no claims on appeal relating to case No. RIF108604.


                                               6
as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of

Section 1192.7”], italics added; § 667.5, subd. (c)(17).) He contends, however, that he is

eligible for resentencing on his two vehicle theft with a prior vehicle theft convictions

because those offenses are not defined as serious or violent felonies.

       Defendant argues that the language of section 1170.126 and the intent of the

Reform Act are consistent with a conclusion that an inmate is eligible for resentencing on

nonserious, nonviolent commitment offenses, notwithstanding ineligibility on the other

third strike term. The People concede that defendant’s two vehicle theft convictions are

nonserious and nonviolent, but maintain defendant is ineligible under section 1170.126

due to his serious and violent felony carjacking conviction, which disqualifies him for

resentencing.

       Based on the conclusion recently reached by our Supreme Court in Johnson,

supra, 61 Cal.4th 674, we agree with defendant and remand the matter for further

proceedings.

       Resolving the exact issue raised in this appeal, on July 2, 2015, our Supreme Court

in Johnson concluded: “In sum, section 1170.126 is ambiguous as to whether a current

offense that is serious or violent disqualifies an inmate from resentencing with respect to

another count that is neither serious nor violent. Considering section 1170.126 in the

context of the history of sentencing under the Three Strikes law and Proposition 36’s

amendments to the sentencing provisions, and construing it in accordance with the

legislative history, we conclude that resentencing is allowed with respect to a count that



                                             7
is neither serious nor violent, despite the presence of another count that is serious or

violent. Because an inmate who is serving an indeterminate life term for a felony that is

serious or violent will not be released on parole until the Board of Parole Hearings

concludes he or she is not a threat to the public safety, resentencing with respect to

another offense that is neither serious nor violent does not benefit an inmate who remains

dangerous. Reducing the inmate’s base term by reducing the sentence imposed for an

offense that is neither serious nor violent will result only in earlier consideration for

parole. If the Board of Parole Hearings determines that the inmate is not a threat to the

public safety, the reduction in the base term and the resultant earlier parole date will

make room for dangerous felons and save funds that would otherwise be spent

incarcerating an inmate who has served a sentence that fits the crime and who is no

longer dangerous.” (Johnson , supra, 61 Cal.4th at pp. 694-695.)

       A decision of the California Supreme Court is controlling authority and must be

followed by lower courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d

450, 455.) Accordingly, we remand the matter to the trial court for a hearing on

defendant’s petition to recall his sentence and for resentencing.




                                               8
                                            III

                                     DISPOSITION

       In case No. RIF108334, the trial court’s order denying defendant’s petition to

recall his life sentence and for resentencing under the Reform Act is reversed. The matter

is remanded for a hearing on defendant’s petition.

       In case No. RIF108604, the trial court’s order denying defendant’s ex parte motion

for modification is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              RAMIREZ
                                                                                        P. J.
We concur:



HOLLENHORST
                          J.



CODRINGTON
                          J.




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