Filed 1/15/16 P. v. Smith CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE PEOPLE,

     Plaintiff and Respondent,                                         G050533

         v.                                                            (Super. Ct. No. FWV035340)

TERRYANCE ACEY SMITH,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of San Bernardino,
Ingrid Adamson Uhler, Judge. Reversed and remanded for further proceedings.
                   Neil Auwarter, 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, Eric A. Swenson and
Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
              Terryance Acey Smith appeals from the trial court’s order denying his
petition for resentencing under Penal Code section 1170.126 (all further statutory
references are to the Penal Code). Smith argues he is eligible for resentencing for his
14 false imprisonment convictions because they are non-serious, non-violent felonies.
The Attorney General contends Smith is ineligible for resentencing because first he is
also serving life sentences for other serious and/or violent felonies, i.e. robbery and
dissuading a witness, and second as to the false imprisonment convictions, the jury found
he was armed with a firearm.
              After briefing in this case was complete, the California Supreme Court filed
its opinion in People v. Johnson (2015) 61 Cal.4th 674 (Johnson), and we invited the
parties to submit supplemental briefs on the applicability of Johnson to this case. In its
supplemental brief, the Attorney General concedes Johnson disposes of her argument
Smith’s robbery convictions make him ineligible for resenting. However, the Attorney
General maintains Smith was ineligible for resentencing because he was armed during the
commission of the false imprisonment offenses.
              As we explain below, we accept the Attorney General’s concession Smith’s
robbery convictions do not make him ineligible for resentencing on his false
imprisonment convictions. However, we decline the Attorney General’s invitation to
conclude Smith was ineligible on another basis, a basis the trial court did not rely on in
denying Smith’s petition. We reverse and remand the matter for further proceedings
consistent with this opinion.
                                          FACTS
              In 2006, a jury convicted Smith of 33 felony counts: 13 counts of robbery
(§ 211), 14 counts of false imprisonment (§ 236), and six counts of dissuading a witness
(§ 136.1, subd. (c)(1)). As to all the counts, the jury found true Smith was a principal
armed with a firearm under section 12022, subdivision (a)(1). At a bench trial, the trial
court found all the strike prior allegations to be true. The trial court sentenced Smith to

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an indeterminate life sentence of 380 years and 8 months. (See People v. Smith (Dec. 29,
2008, G040872) [nonpub opn.].)
              In 2014, Smith filed a petition for recall of sentencing and request for
resentencing under section 1170.126. The trial court denied the petition, reasoning
section 1170.126 did not apply and Smith was ineligible for resentencing because his
current convictions for robbery were both serious and violent felonies (§§ 667.5,
subd. (c)(9) [robbery], 1192.7, subd. (c)(19) [robbery]).
                                       DISCUSSION
              Citing to Johnson, supra, 61 Cal.4th 674, the Attorney General concedes
the fact Smith suffered convictions for other serious and/or violent felonies—robbery and
dissuading a witness—in addition to his non-serious and non-violent false imprisonment
convictions does not make him ineligible for resentencing pursuant to section 1170.126.
              Section 1170.126 allows certain qualifying inmates already serving a three
strikes sentence to petition for resentencing under the Three Strikes Reform Act. In
Johnson, supra, 61 Cal.4th at page 688, the California Supreme Court opined the
following: “[W]e conclude that the Act 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.”
              Here, the trial court denied Smith’s petition for resentencing on his false
imprisonment convictions, reasoning he was ineligible since he was also convicted of
other serious and/or violent crimes, robbery. In light of Johnson, the trial court’s ruling
was incorrect. We accept the Attorney General’s concession and conclude that pursuant
to Johnson, Smith’s robbery convictions do not make him ineligible for resentencing.
              In her respondent’s brief and supplemental letter brief, the Attorney
General, however, asserts Smith was ineligible for resentencing for another reason.

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Relying on sections 1170.126, subdivision (e)(2), and 1170.12, subdivision (c)(2)(C)(iii),
the Attorney General maintains Smith was also ineligible for resentencing because the
jury in convicting Smith of 14 counts of false imprisonment also found true he was armed
within the meaning of section 12022, subdivision (a)(1).
              The trial court did not deny Smith’s petition on these grounds but instead
solely on the ground he suffered robbery convictions. We acknowledge the issue the
Attorney General raises is a question of law that we have discretion to consider. (Sea &
Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [reviewing court
discretion to decide such an issue if it presents pure question of law arising on undisputed
facts, particularly when issue matter of important public policy].) Nonetheless, we
decline to decide these legal issues. The trial court must first decide the threshold
question whether Smith is eligible for resentencing.
                                      DISPOSITION
              The postjudgment order is reversed and the matter remanded for further
proceedings consistent with this opinion.




                                                  O’LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



BEDSWORTH, J.




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