Filed 11/13/15 P. v. Beckwith CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                          B261626

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA052644)
         v.

GERALD DELANE BECKWITH,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Christopher
Estes, Judge. Reversed.
         Adrian K. Panton, 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, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for
Plaintiff and Respondent.
                                             ——————————
       A jury convicted Gerald Delane Beckwith of first degree residential burglary, a
felony, in violation of Penal Code section 4591 (count 1) and petty theft with three priors,
also a felony, in violation of section 666, subdivision (a) (count 2). In a bifurcated
proceeding, the trial court found true the allegations that Beckwith had suffered two prior
strike convictions as to both counts, and had served seven prior prison terms. The court
sentenced Beckwith to 37 years to life for first degree residential burglary, and stayed his
sentence for petty theft under section 654. Beckwith appealed and we affirmed. (People
v. Beckwith (Mar. 25, 2013, B242147) [nonpub. opn.].)
       Subsequently, on November 24, 2014, the trial court received Beckwith’s petition
for recall and resentencing on his petty theft conviction under Proposition 47 (§ 1170.18,
subd. (a)). The court denied the petition on December 18, 2014, stating that Beckwith
was ineligible for resentencing as he was serving a life sentence for first degree burglary,
and his sentence for petty theft had been stayed. Beckwith filed this timely appeal.
       Beckwith argues, and respondent agrees, that he is eligible to have his section 666,
subdivision (a) petty theft conviction reduced to a misdemeanor under Proposition 47,
despite his life sentence for burglary and his stayed sentence for petty theft. Proposition
47, enacted by the voters in November 2014, added section 1170.18, which provides: “A
person currently serving a sentence for a conviction . . . of a felony . . . who would have
been guilty of a misdemeanor under the act . . . had this act been in effect at the time of
the offense may petition for a recall of sentence . . . to request resentencing in accordance
with . . . section . . . 666 of the Penal Code, as th[at] section[] ha[s] been amended or
added by this act.” (§ 1170.18, subd. (a); see People v. Rivera (2015) 233 Cal.App.4th
1085, 1089, 1092.) As amended by Proposition 47, section 666, subdivision (a) now
provides that any person with a prior violent or serious felony conviction “who, having
been convicted of . . . burglary, and having served a term of imprisonment therefor in any
penal institution . . . and who is subsequently convicted of petty theft, is punishable by
imprisonment in the county jail not exceeding one year, or in the state prison.”

       1   All further statutory references are to the Penal Code.

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       Beckwith’s petty theft conviction was eligible for reduction to a misdemeanor.
“[A]n 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.” (People v. Johnson (2015) 61
Cal.4th 674, 688.) “[S]entencing under the Three Strikes law has focused on the sentence
to be imposed with respect to each count individually” (ibid.), and post-Proposition 36,
the Three Strikes Reform Act of 2012, a defendant convicted of a serious or violent
felony and a felony that is neither serious nor violent is required to have his eligibility for
resentencing evaluated on a “count-by-count basis.” (Ibid.) Proposition 47, using the
same language as Proposition 36, states that if the petitioner is eligible for resentencing
the petition shall be granted “unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(§§ 1170.126, subd. (f), 1170.18, subd. (b).)
       Here, Beckwith’s petty theft count was not a serious or violent crime, and
therefore on a count-by-count basis resentencing was allowed, although he also was
convicted of the serious felony of first degree burglary (§ 1192.7, subd. (c)(18)) for
which he is subject to a sentence of 37 years to life. The trial court should have
considered his petition, as he was eligible for resentencing on the petty theft count despite
his accompanying conviction and sentence for the serious felony of burglary. (Johnson,
supra, 61 Cal.4th at p. 695.)
       The staying of Beckwith’s sentence for petty theft also does not affect his
eligibility for resentencing. Section 654, subdivision (a) provides that an act punishable
in different ways by different statutes is to be punished under the provision with the
longest potential prison term, “but in no case shall the act or omission be punished under
more than one provision.” The trial court applies section 654 by staying the execution of
the sentence until the defendant has completed the sentence for the greater offense so that
“if the unstayed sentence is reversed, a valid sentence remains extant.” (People v. Alford
(2010) 180 Cal.App.4th 1463, 1469.) However, “section 654 prohibits [a] defendant
from being disadvantaged in any way as a result of the stayed conviction[].” (People v.

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Pearson (1986) 42 Cal.3d 351, 361.) As Beckwith would be disadvantaged if the stayed
sentence for felony petty theft prevented consideration of his conviction for petty theft for
reduction to a misdemeanor, the trial court erred in considering the stayed sentence as a
barrier to eligibility for resentencing.
       We reverse the order denying Beckwith’s petition for recall and resentencing
under Proposition 47, and remand to the trial court for further proceedings on the merits
of the petition.
                                       DISPOSITION
       The order is reversed.
       NOT TO BE PUBLISHED.


                                                  JOHNSON, J.


We concur:


               ROTHSCHILD, P. J.


               LUI, J.




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