Filed 11/9/15 P. v. Carter CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          Nos. B260408, B262401

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA013303)
         v.

MELVYN VINCENT CARTER,

         Defendant and Appellant.



         APPEALS from orders of the Superior Court of Los Angeles County, William C.
Ryan, Judge. No. B260408 is reversed and remanded with directions; No. B262401 is
dismissed as moot.
         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, Senior Assistant Attorney General, Noah P. Hill, and
Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.


                                         ________________________
       In two related appeals Melvyn Vincent Carter challenges the denial of his petitions
for recall of sentence and resentencing pursuant to Penal Code section 1170.126,1 part of
the Three Strikes Reform Act of 2012 (Proposition 36). We reverse the order denying his
initial petition in light of the Supreme Court’s decision in People v. Johnson (2015)
61 Cal.4th 674 and remand for further proceedings in accordance with the procedures
specified in section 1170.126. We dismiss his appeal from the order denying his second
petition as moot.
                                  APPEAL No. B260408
       Carter was convicted in 1997 of grand theft (§ 487, subd. (c)) and robbery (§ 211)
with true findings he had suffered a prior serious felony conviction within the meaning of
section 667, subdivision (a), and two prior serious or violent felony convictions within
the meaning of the three strikes law (§§ 667, subds. (b)-(d); 1170.12). Carter was
sentenced as a third strike offender to an aggregate state prison term of 55 years to life,
consisting of two consecutive indeterminate terms of 25 years to life plus five years for
the prior serious felony enhancement.
       On October 30, 2014 Carter filed a petition for recall of his sentence under
Proposition 36. On November 10, 2014 the superior court denied the petition, finding
Carter ineligible because one of his commitment offenses, robbery, is a violent felony.
(See § 1170.126, subd. (e)(2).) Carter filed a timely notice of appeal from the order.
       People v. Johnson, supra, 61 Cal.4th 674, decided during the pendency of this
appeal, held Proposition 36 “requires an inmate’s eligibility for resentencing to be
evaluated on a count-by-count basis. So interpreted, an 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.” (Johnson, at p. 688.)
       Although Carter’s conviction for robbery is a disqualifying conviction under
section 1170.126, pursuant to Johnson he is nonetheless eligible for recall of his third-

1
       Statutory references are to this code.

                                                2
strike sentence for grand theft. On remand Carter must be resentenced as a second strike
offender for grand theft pursuant to section 1170.126, subdivision (f), if he satisfies all
the criteria set forth in subdivision (e), “unless the court, in its discretion determines that
resentencing [Carter] would pose an unreasonable risk of danger to public safety.”
                                   APPEAL No. B262401
       On December 2, 2014 Carter filed a second petition for recall of his sentence and
resentencing, which the superior court dismissed based on its November 10, 2014 order
denying Carter’s earlier petition with prejudice. Carter filed a timely notice of appeal
from the second order. This appeal is dismissed as moot.
                                       DISPOSITION
       In B260408 the order of November 10, 2014 is reversed and the matter remanded
with directions to the superior court to grant the petition for recall of sentence and to
determine in compliance with the procedures specified in section 1170.126 whether
Carter is eligible under section 1170.126, subdivision (e), for resentencing on his
conviction for grand theft, and, if so, to resentence Carter on that conviction, “unless the
court, in its discretion, determines that resentencing [Carter] would pose an unreasonable
risk of danger to the public safety,” under section 1170.126, subdivision (f). In B262401
the appeal is dismissed as moot.




                                            PERLUSS, P. J.


       We concur:




              ZELON, J.                     BECKLOFF, 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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