Filed 3/4/16 P. v. Thomas 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B263219

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. NA087606)
         v.

RELIUS LEWIS THOMAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Reversed and Remanded.
         California Appellate Project, Jonathan B. Steiner and 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, Assistant Attorney General, Victoria B.
Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
      In 2011, a jury convicted appellant Relius Lewis Thomas of stalking (Pen.
Code § 646.9, subd. (b)),1 and three counts of making criminal threats (§ 422). He
admitted four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)) and two prior serious felony convictions (§ 667, subd. (a)(1)). On the stalking
count, the trial court sentenced him to 35 years to life in state prison: 25 years to
life under the Three Strikes law, plus two consecutive five-year terms for the prior
serious felony convictions. On the criminal threat counts, the court imposed, and
stayed, terms of 25 years to life. We affirmed the judgment of conviction in an
unpublished opinion, B236133.
      In 2014, appellant filed a petition for recall of his sentence under section
1170.126. As here relevant, section 1170.126, a provision of Proposition 36
enacted by the voters in 2012, “authorizes prisoners serving third strike sentences
whose ‘current’ offense (i.e., the offense for which the third strike sentence was
imposed) is not a serious or violent felony to petition for recall of the sentence and
for resentencing as a second strike case [citations]” (People v. Johnson (2015) 61
Cal.4th 674, 679-680), so long as the court makes certain other findings, including
a determination that the petitioner will not pose an unreasonable risk of danger to
public safety (§ 1170.126, subd. (f)).
      In March 2015, the trial court denied appellant’s petition, concluding that
defendant was ineligible under section 1170.126, subdivision (e)(1), because
defendant’s criminal threats convictions were serious felonies under section
1192.7, subdivision (c)(38). After the trial court’s ruling, our Supreme Court held
in Johnson, supra, 61 Cal.4th at page 695, that “resentencing is allowed with
respect to a count that is neither serious nor violent, despite the presence of another
count that is serious or violent.” Because defendant’s stalking conviction is not a

1
      Undesignated section references are to the Penal Code.
                                           2
serious or violent felony, in this appeal from the denial of the petition to recall his
sentence, defendant contends that under Johnson he is not ineligible for
resentencing on that count, even though he is ineligible for resentencing on his
criminal threats counts. Appellant asks that we remand the case for the trial court
to consider defendant’s eligibility for resentencing on the stalking count.
Respondent agrees that a remand is appropriate. We agree as well.
      Stalking is not a serious or violent felony, and therefore petitioner is not
facially ineligible for resentencing on that count. Thus, we order the case
remanded to the trial court to make any further relevant findings regarding whether
petitioner is eligible for resentencing on that count, including, if necessary, a
determination whether appellant poses an unreasonable risk of danger to public
safety under section 1170.126, subdivision (f). Further, if the court determines to
resentence defendant on the stalking count, the court is obligated to impose an
indeterminate life term on one of the criminal threat counts, and impose and stay
the sentence on the stalking count and remaining counts. (People v. Kramer
(2002) 29 Cal.4th 720, 722-723 [in determining appropriate sentence under § 654,
the court must impose the longest sentence and stay sentence on the other counts].)




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                                   DISPOSITION
             The order denying the petition for recall of sentence on the stalking
count is reversed. The case is remanded to the trial court to determine whether,
given that stalking is not a serious or violent felony, appellant is otherwise eligible
for resentencing on that count, including, if necessary, a determination whether
appellant poses an unreasonable risk of danger to public safety under section
1170.126, subdivision (f). If the court determines to resentence defendant on the
stalking count, the court shall impose an indeterminate life term on one of the
criminal threat counts, and impose and stay the sentences on the stalking count and
remaining counts.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             MANELLA, J.



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