Filed 11/13/15 P. v. Morales CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B257335

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. PA029531)
         v.

ESEQUIEL MORALES,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Reversed and remanded.
         California Appellate Project, Jonathan B. Steiner and Susan E. Hier, 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 Carl N. Henry,
Deputy Attorneys General, for Plaintiff and Respondent.



                          _________________________________________
       Esequiel Morales1 appeals from an order denying his petition for recall and
resentencing pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (the Act).
He contends the trial court erred in concluding he was ineligible for resentencing on his
convictions for receiving stolen property. In light of People v. Johnson (2015) 61 Cal.4th
674 (Johnson), we reverse and remand.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The evidence, the sufficiency of which is not in dispute, established the following.
In 1995, Morales committed two counts of first degree burglary and pled guilty to those
counts. On March 9, 1998, Morales burglarized Sue Frost’s Saugus residence. On
April 28, 1998, Max Allshot’s binoculars were stolen in Saugus. On about May 4, 1998,
Valentin Lopez’s weight belt was stolen from his brother’s van, and a weed-whacker was
stolen from his pickup truck. On or about May 6, 1998, Morales returned the weed-
whacker to Lopez. On May 10, 1998, Los Angeles County sheriff’s deputies found
Morales in possession of the binoculars and weight belt.
       A jury convicted Morales of three counts of receiving stolen property (Pen. Code,
§ 496, subd. (a))2 and one count of first degree burglary (§ 459), and found he had
suffered two prior serious felony convictions (§ 667, subds. (a)-(i)). On January 22,
1999, he was sentenced to prison for 85 years to life pursuant to the Three Strikes law
(§ 667, subd. (b)-(i)), consisting of three consecutive terms of 25 years to life as to the
burglary and two of the counts for receiving stolen property (relating to the weed-
whacker and binoculars) and two five-year terms for the section 667, subdivision (a)(1)
prior serious felony conviction enhancements. Morales was also sentenced to prison for
25 years to life for the additional count of receiving stolen property (relating to the
weight belt), and the trial court stayed that sentence pursuant to section 654. The
judgment was later modified by striking one of the prior serious felony conviction

1
      Morales’s name is spelled “Esequiel Morales” in some court documents and
“Ezequiel Morales” in others.
2
       All further undesignated statutory references are to the Penal Code.

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enhancements, thereby reducing Morales’s unstayed prison term to 80 years to life. (See
People v. Esequiel Morales (B130194; filed on May 25, 2000) [nonpub. opn.].)
       On November 6, 2012, California voters approved Proposition 36, the Act, which
amended the Three Strikes law effective November 7, 2012. (Johnson, supra, 61 Cal.4th
at p. 679.) Prior to passage of the Act, a defendant convicted of two prior serious or
violent felonies was subject to a 25 years to life sentence upon his or her conviction of
any additional felony. (Id. at p. 680.) Under amended sections 667 and 1170.12, a
defendant who has been convicted of two prior strikes is subject to such a sentence only
if the current, third felony is itself serious or violent or if certain enumerated exceptions
apply. (Id. at p. 681; §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) Absent such
exceptions, the defendant is to receive a second strike sentence of twice the term
otherwise provided for the current felony. (Johnson, supra, 61 Cal.4th at p. 681.)
       The Act also added section 1170.126,3 which created a resentencing procedure for
prisoners serving indeterminate terms under the former version of the Three Strikes law,

3
        Section 1170.126 provides in pertinent part: “(a) The resentencing provisions
under this section and related statutes are intended to apply exclusively to persons
presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
whose sentence under this act would not have been an indeterminate life sentence. [¶]
(b) Any person serving an indeterminate term of life imprisonment imposed pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of
Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are
not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two
years after the effective date of the act that added this section or at a later date upon
a showing of good cause, before the trial court that entered the judgment of conviction in
his or her case, to request resentencing in accordance with the provisions of
subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes
have been amended by the act that added this section. [¶] . . . [¶] (e) An inmate is
eligible for resentencing if: [¶] (1) The inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7. [¶] (2) The inmate’s current sentence was not
imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of
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who would not have been sentenced to such terms under the Act. (Johnson, supra,
61 Cal.4th at p. 682.) An eligible prisoner may file a petition to recall his or her sentence
in the trial court and seek resentencing as a second strike offender. (§ 1170.126, subds.
(b), (e).) Resentencing of eligible inmates may nonetheless be refused if the trial court in
its discretion determines that resentencing would pose an unreasonable risk of danger to
public safety. (§ 1170.126, subd. (f).)
       On May 16, 2014, Morales filed a petition for recall of sentence seeking
resentencing under the Act as to his convictions for receiving stolen property. The trial
court denied the petition finding that Morales was ineligible for resentencing under
section 1170.126, subdivision (e)(2) because one of his current convictions was for first
degree burglary, a serious felony. Morales timely appealed.
                                        DISCUSSION
       After the parties completed initial briefing the California Supreme Court,
resolving an issue that had divided the Courts of Appeal, held in Johnson that an inmate
is eligible for resentencing under section 1170.126 on a current conviction that is neither
serious nor violent, even though he or she has another current conviction that is serious or
violent. (Johnson, supra, 61 Cal.4th at pp. 679-680.) The court reasoned that
historically, sentencing under the Three Strikes law has focused on the sentence to be
imposed with respect to each individual count. (Id. at pp. 688-689.) The Proposition 36
ballot materials did not suggest that the electorate intended to apply a different approach


subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii),
inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. [¶]
(3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. [¶] (f) Upon
receiving a petition for recall of sentence under this section, the court shall determine
whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of
subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12
unless the court, in its discretion, determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety.”

                                               4
in the context of resentencing under section 1170.126. (Id. at pp. 691, 694.) Moreover,
evaluating resentencing eligibility on a count-by-count basis promotes sentencing that fits
the crime, effectuates the voters’ intent of making room in prison for dangerous criminals
while protecting public safety, and prevents a distinction in punishment based on whether
the counts were tried in the same prosecution. (Id. at p. 694.) Accordingly, Johnson
concluded 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.” (Id. at p. 688.)
       Here, Morales’s current convictions are for first degree burglary (§ 459) and
receiving stolen property (§ 496, subd. (a)). First degree burglary is a serious felony.
(§§ 667.5, subd.(c)(21), 1192.7, subd. (c)(18).) Receiving stolen property is not a serious
or violent felony absent additional circumstances, such as, for example, the use of a
firearm or the infliction of great bodily injury in the commission of the felony. (§§ 667.5,
subd. (c), 1192.7, subd. (c).) Under Johnson, the fact Morales was convicted of first
degree burglary does not make him ineligible as a matter of law for recall of sentence and
resentencing on the receiving stolen property convictions.4 Accordingly, we reverse the
trial court’s order and remand for a new hearing at which the court should determine
Morales’s eligibility for recall and resentencing on the receiving stolen property
convictions in accordance with section 1170.126, subdivisions (e) and (f). (See People v.
Jernigan (2014) 227 Cal.App.4th 1198, 1204 [“First, the trial court must determine
whether an inmate is eligible for resentencing. And second, the trial court must evaluate
whether resentencing an eligible inmate would pose an unreasonable risk of danger to the
public.”].)


4
       We invited the parties to submit supplemental briefing in light of Johnson.
Morales agrees and the People concede that, under Johnson, Morales may be eligible for
resentencing on his convictions for receiving stolen property.

                                              5
                                        DISPOSITION
          The trial court’s order denying Morales’s petition for recall of sentence is reversed
and the matter is remanded for further proceedings consistent with the opinions expressed
herein.


          NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                           EDMON, P. J.

WE CONCUR:




          ALDRICH, J.




          JONES, 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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