Filed 9/2/15 P. v. Hale CA2/4
                        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR




THE PEOPLE,                                                                   B260283

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. PA050761)
          v.

ODELL HALE,

          Defendant and Appellant.



          APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Reversed and remanded with directions.
          Larry Pizarro, 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, Assistant Attorney General, Noah P. Hill and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
                                         ______________________________
       Odell Hale appeals from an order denying his petition to recall his sentence under
the Three Strikes Reform Act of 2012, added by Proposition 36. (Pen. Code,
§ 1170.126).1 The trial court considered appellant’s sentence as a whole and deemed him
ineligible for resentencing because of his conviction of criminal threats, a serious felony.
In light of People v. Johnson (2015) 61 Cal.4th 674, the parties agree the sentence should
be considered on a count-by-count basis. We therefore reverse and remand for
reconsideration of appellant’s eligibility for resentencing on his conviction for corporal
injury to spouse, which is not a serious or violent felony.


                      FACTUAL AND PROCEDURAL SUMMARY
       In 2005, appellant was convicted by jury of corporal injury to a spouse, cohabitant
or child’s parent (§ 273.5, subd. (a), count 1), based on a March 2004 incident during
which he repeatedly struck Velvet Rushing, the mother of his two teenage sons. In a
separate incident in February 2005, appellant threatened to kill Rushing and the boys
while holding a sword, hit his son Odell and threatened him with a knife. Based on that
incident, the jury convicted appellant of one count of assault by means likely to produce
great bodily injury as to his son Odell (former § 245, subd. (a)(1), now § 245,
subd. (a)(4), count 2); three counts of criminal threats (§ 422, subd. (a), counts 4-6), each
with an enhancement for personal use of a deadly or dangerous weapon (§ 12022,
subd. (b)(1)), and two counts of assault with a deadly weapon as to his son Odell (§ 245,
subd. (a)(1), counts 7-8).
       The court found true three previous strike convictions and sentenced appellant
under the Three Strikes Law to a total of 66 years to life in prison. The sentence
consisted of 25 years to life, plus 16 years of enhancements, on one of the criminal
threats counts (count 4), and a consecutive 25 years to life term on count 1, corporal
injury to a spouse. Appellant received concurrent life sentences on the remaining counts.




       1
           Statutory references are to the Penal Code.
                                               2
                                        DISCUSSION
       An inmate is eligible for resentencing under the Three Strikes Reform Act if “[t]he
inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the
Three Strikes law] for a conviction of a felony or felonies that are not defined as serious
and/or violent . . . .” (§ 1170.126, subd. (e)(1).) During the pendency of this appeal, the
California Supreme Court resolved a split of authority on the issue of the eligibility for
resentencing of an inmate serving an indeterminate life sentence for several offenses,
only some of which are neither serious nor violent felonies. (People v. Johnson, supra,
61 Cal.4th 674.) The court rejected the argument that “resentencing is allowed only if all
of a prisoner’s current offenses are neither serious nor violent . . . .” (Id. at p. 688.) It
held that an inmate’s eligibility for resentencing must be evaluated on a count-by-count
basis (ibid.), and the inmate may be eligible for resentencing “with respect to a current
offense that is neither serious nor violent despite the presence of another current offense
that is serious or violent.” (Id. at p. 695.) The court noted that the same approach applies
to the list of current offenses and circumstances incorporated into section 1170.126,
subdivision (e)(2) through sections 667 and 1170.12. (People v. Johnson, at p. 693.)
       Corporal injury to a spouse, where the criminal conduct does not include personal
use of a dangerous or deadly weapon, is not a serious or violent felony. (People v.
Trujillo (2006) 40 Cal.4th 165, 175, 179.) Respondent concedes that appellant was
unarmed during the March 2004 incident, which is the basis for count 1, corporal injury
to a spouse. Appellant is not rendered ineligible for resentencing on count 1 by the
serious felonies he committed in February 2005, and the trial court erred in denying the
petition on that basis. (People v. Johnson, supra, 61 Cal.4th at p. 695.)
       Respondent proposed an alternative basis for denying the petition—that
appellant’s sentence was imposed for an offense in which he used a deadly weapon,
which is a disqualifying circumstance. (§§ 667, subd. (e)(2)(C)(iii); 1170.12,
subd. (c)(2)(C)(iii); 1170.126, subd. (e)(2).) As People v. Johnson, supra, 61 Cal.4th at
page 693 makes clear, that is not a valid basis for denying the petition either. Because
appellant’s sentence must be examined count by count, section 1170.126, subdivision

                                                3
(e)(2) does not disqualify appellant from resentencing on the non-serious count 1, during
the commission of which he was unarmed.
       We direct the trial court to reconsider defendant’s petition with respect to count 1,
corporal injury to a spouse. Under section 1170.126, subdivisions (f) and (g), the trial
court has discretion to consider all relevant factors in determining whether a new
sentence on that count “would result in an unreasonable risk of danger to public safety.”
(1170.126, subd. (g)(3).)


                                     DISPOSITION
       The order is reversed. The trial court is directed to reconsider appellant’s
eligibility for resentencing under section 1170.126 with respect to his corporal injury to a
spouse conviction.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       MANELLA, J.




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