Filed 10/13/15 P. v. Wilson CA2/7

                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 SEVEN


THE PEOPLE,                                                                   B260281

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. SA025425)
          v.

KENNETH ROY WILSON,

          Defendant and Appellant.




                     APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Reversed and remanded with directions.


                     Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and
Appellant.


                     Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and
Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                                    ___________________________________
                                    INTRODUCTION
       Kenneth Roy Wilson, serving a three strikes, indeterminate sentence of 56 years to
life, petitioned pursuant to Penal Code section 1170.126,1 part of the Three Strikes
Reform Act (Proposition 36), for recall of his sentence and resentencing as a second
strike offender. The trial court denied the petition on the ground Wilson was ineligible
for resentencing because one of the commitment offenses, assault by means of force
likely to produce great bodily injury and with a deadly weapon (former § 245,
subd. (a)(1)), is a serious felony. (See § 1170.126, subd. (e)(2).) We conclude Wilson
was eligible for resentencing and reverse.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Wilson lived with his girlfriend Belinda P., a child they had together, and Belinda
P.’s four children. Wilson came home intoxicated, and he and Belinda P. had a verbal
altercation that escalated into a shoving match in the living room. Wilson, a large man,
scratched Belinda P.’s face with his fingernails and pushed her into a glass table, which
shattered. Wilson then threatened to kill Belinda P. and retrieved a knife from the
kitchen before returning to the living room. When Wilson began walking with the knife
to the children’s room, Belinda P. blocked him and he jabbed at her, cutting her hands
and arms. Wilson threatened to stab her and kill her. (See People v. Wilson (Jan. 15,
2002, B142587) [nonpub. opn].)
       A jury convicted Wilson in 1996 of inflicting corporal injury on a cohabitant
(§ 273.5, subd. (a), count 1), making a terrorist threat with the use of a knife (§§ 422,
12022, subd. (b)(1), count 2) and assault by means of force likely to produce great bodily
injury and with a deadly weapon (count 3) with findings he had suffered one prior serious
felony conviction for voluntary manslaughter (§ 667, subd. (a)(1)) and four prior
convictions qualifying him for sentencing under the three strikes law (§§ 667,




1
       Statutory references are to the Penal Code.

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subds. (b)-(d), 1170.12). The jury also found Wilson had four prior felony convictions
that were predicates for a separate prison term enhancement (§ 667.5, subd. (b)).
       The trial court imposed an aggregate state prison sentence of 58 years to life.
Wilson twice appealed from the judgment, and each time on remand the trial court
elected to impose an aggregate term of 58 years to life.
       On January 15, 2002, following Wilson’s third appeal, we ordered the judgment
modified to reflect an aggregate state prison sentence of 56 years to life: A term of
25 years to life for infliction of corporal injury upon a cohabitant (count 1) and a
consecutive term of 25 years to life for aggravated assault (count 3), plus five years for
the prior serious felony enhancement and one year for the prior prison term enhancement.
The term of 25 years to life for making a terrorist threat plus one year for the use of a
deadly weapon was stayed pursuant to section 654. (See People v. Wilson, supra,
B142587.)
                                       DISCUSSION
       An inmate’s petition to recall his or her sentence must state “all of the currently
charged felonies, which resulted in the [third strike life sentence]” and “all of the prior
[strike] convictions . . . .” (§ 1170.126, subd. (d).) The trial court must then determine
whether the inmate has satisfied the requirements set forth in subdivision (e) of
section 1170.126. (§ 1170.126, subd. (f).) An inmate is eligible for resentencing if (1) he
or she is currently serving a third strike life term for conviction of a felony or felonies
that are not defined as serious and/or violent felonies by section 667.5, subdivision (c), or
section 1192.7, subdivision (c); (2) the “current sentence was not imposed for any of the
offenses” listed in section 667, subdivision (e)(2)(C)(i)-(iii), or section 1170.12,
subdivision (c)(2)(C)(i)-(iii); and (3) none of the inmate’s prior convictions is listed in
section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv).
(§ 1170.126, subd. (e).) If the inmate satisfies these requirements, the trial court shall
resentence him or her, “unless the court, in its discretion, determines that resentencing the
[inmate] would pose an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).)

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       Wilson argues he is entitled to recall of his third strike sentence for infliction of
corporal injury on a cohabitant because the offense is neither a serious nor a violent
felony and an inmate’s eligibility for resentencing under Proposition 36 should be
determined on a count-by-count basis. The Supreme Court recently addressed this issue
in People v. Johnson (2015) 61 Cal.4th 674, holding that 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, supra, at p. 688.)
       Based on this holding, although Wilson’s convictions for aggravated assault and
making a criminal threat with a deadly weapon enhancement are disqualifying serious
felony convictions under section 1170.126 (see §§ 667, subd. (e)(2)(C)(iii), 1170.12,
subd. (c)(2)(C)(iii)), he is nonetheless eligible for recall of his indeterminate sentence for
inflicting corporal injury on a cohabitant. On remand, the trial court must resentence
Wilson for inflicting corporal injury on a cohabitant pursuant to section 1170.126,
subdivision (f), if Wilson satisfies all the criteria set forth in subdivision (e), “unless the
court, in its discretion, determines that resentencing [Wilson] would pose an
unreasonable risk of danger to public safety.”
                                       DISPOSITION
       The order is reversed, and the matter remanded with directions to grant the petition
for recall of sentence and to proceed in accordance with the procedures specified in
section 1170.126 regarding the sentence for inflicting corporal injury on a cohabitant.




              SEGAL, J.


We concur:


              PERLUSS, P. J.                                       ZELON, J.

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