Filed 9/2/15 P. v. Burns CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069147
         Plaintiff and Respondent,
                                                                                 (Super. Ct. No. 240912)
                   v.

MONROE WALTER BURNS,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Stanislaus County. John D.
Freeland, Judge.
         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Peter H. Smith and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
       The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act)
created a postconviction release proceeding for third strike offenders serving
indeterminate life sentences for crimes that are not serious or violent felonies. If such an
inmate meets the criteria enumerated in Penal Code section 1170.126, subdivision (e), he
or she will be resentenced as a second strike offender unless the court determines such
resentencing would pose an unreasonable risk of danger to public safety.1 (§ 1170.126,
subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)
       After the Act went into effect, Monroe Walter Burns (defendant), an inmate
serving two concurrent indeterminate terms of 25 years to life under the three strikes law,
moved to have his sentence recalled and for resentencing under the Act. The trial court
determined defendant was ineligible for resentencing and denied the petition.2
       We hold defendant was ineligible for resentencing with respect to his conviction
for assault with a deadly weapon, but was eligible for resentencing with respect to his
conviction for petty theft with a prior conviction. Accordingly, we affirm in part and
reverse in part, and remand the matter for further proceedings.
                       FACTS AND PROCEDURAL HISTORY
       On August 8, 2000, a jury convicted defendant of assault with a deadly weapon
(§ 245, subd. (a)(1)) and petty theft with a prior theft-related conviction (§§ 484,
subd. (a), 666). He was found to have been previously convicted of robbery (§ 211) and
kidnapping (§ 207), both of which constituted serious felonies under the three strikes law




1      Further statutory references are to the Penal Code.
2     Although we refer to the trial court, the judge who originally sentenced defendant
was no longer on the bench at the time the resentencing petition was filed. Accordingly,
another judge was assigned to rule on the petition. (See § 1170.126, subd. (j).)
       Denial of the petition is an appealable order. (Teal v. Superior Court (2014) 60
Cal.4th 595, 598.)


                                             2.
(§ 667, subd. (d)), and to have served a prior prison term (§ 667.5, subd. (b)). He was
sentenced to concurrent terms of 25 years to life plus one year.
       On November 9, 2012, defendant petitioned the trial court for a recall of sentence
pursuant to section 1170.126. In support, he submitted a number of documents attesting
to his participation in, and completion of, various rehabilitative courses.
       The People opposed the petition on the ground defendant was ineligible for
resentencing pursuant to section 1170.126, subdivision (e)(1), which requires that an
eligible petitioner must be serving an indeterminate sentence for a nonserious, nonviolent
felony. The People asserted defendant’s commitment conviction of assault with a deadly
weapon constituted a serious felony under current section 1192.7, subdivision (c)(31), but
they observed that the offense was committed in 1999 and, prior to March 8, 2000,
assault with a deadly weapon constituted a serious felony only when the defendant
personally used the weapon (§ 1192.7, subd. (c)(23)). They argued the court could
review the trial transcript to determine whether the prosecution proved defendant
personally used a deadly weapon, and they attached portions of that transcript. The
People also opposed the petition on the ground that, if eligible, defendant still should not
be resentenced because to do so would pose an unreasonable risk of danger to public
safety. In support, the People pointed to defendant’s criminal history.
       On March 6, 2014, the trial court denied the petition. It stated it had reviewed the
portions of the trial transcript attached to the People’s opposition, and the facts described
by the witnesses supported a conviction for assault with a deadly weapon. It noted we
also so found on appeal. Accordingly, it concluded defendant did not meet the eligibility
requirements for resentencing.
                                       DISCUSSION
       Insofar as is pertinent to this appeal, in order for an inmate to be eligible for
resentencing under the Act, he or she must be serving an indeterminate term of life
imprisonment imposed under the three strikes law “for a conviction of a felony or

                                              3.
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.” (§ 1170.126, subd. (e)(1).)
Defendant’s conviction for petty theft with a prior conviction clearly meets this
requirement. When defendant committed his offenses in 1999, however, assault with a
deadly weapon constituted a serious felony only if the defendant personally used a
dangerous or deadly weapon. (§ 1192.7, subd. (c)(23); People v. Rodriguez (1998) 17
Cal.4th 253, 261.) In 2000, voters adopted Proposition 21, which, among other things,
added subdivision (c)(31) to section 1192.7. Under that provision, all assaults with
deadly weapons are now serious felonies. (People v. Delgado (2008) 43 Cal.4th 1059,
1067, fn. 3, 1070, fn. 4.)3
       Defendant says the trial court erred by finding him ineligible for resentencing
under section 1170.126 with respect to his conviction for assault with a deadly weapon.
He claims the definition of violent or serious felony, for purposes of deciding eligibility
for resentencing under section 1170.126, is the definition of those terms in effect at the
time of the commission of the offense being punished. He then argues the fact of being
armed with a deadly weapon or personal use of a deadly weapon had to be pled and
proven; hence, the trial court could not properly make “any ‘extra fact’ determination” to
find defendant personally used a deadly weapon during commission of the offense.
       We need not reach defendant’s pleading-and-proof claim (which, defendant
acknowledges, we rejected in People v. Blakely (2014) 225 Cal.App.4th 1042, 1057-
1063). This is so because the California Supreme Court recently held: “[F]or purposes
of resentencing under section 1170.126, the characterization of the current offense as
serious or violent is based on the law as of the effective date of Proposition 36,
November 7, 2012.” (People v. Johnson (2015) 61 Cal.4th 674, 695 (Johnson).)


3      At no time has assault with a deadly weapon constituted a violent felony as
defined in section 667.5, subdivision (c).


                                             4.
       In the present case, the information and abstract of judgment clearly show
defendant was charged with, and convicted of, assault with a deadly weapon, in violation
of section 245, subdivision (a)(1). At the time, subdivision (a)(1) of section 245 could be
violated either by assaulting the person of another with a deadly weapon or instrument
other than a firearm, or by any means of force likely to produce great bodily injury. (See
former § 245, subd. (a)(1).) Assault by means of force likely to produce great bodily
injury is not a serious felony, even under section 1192.7, subdivision (c)(31). (People v.
Haykel (2002) 96 Cal.App.4th 146, 151.) In light of the unambiguous description, in the
abstract of judgment, of defendant’s conviction as being for “Assault with deadly
weapon,” there can be no doubt defendant was convicted of an offense that, as of
November 7, 2012, constituted a serious felony. (See People v. Delgado, supra, 43
Cal.4th at pp. 1069, 1072.) That being the case, defendant is ineligible for resentencing
on that conviction. (§ 1170.126, subd. (e)(1); Johnson, supra, 61 Cal.4th at p. 683.)
       Defendant correctly asserts, however, that he nevertheless is eligible for
resentencing on his conviction for petty theft with a prior conviction. Johnson further
held: “[A]n inmate is 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.” (Johnson, supra, 61 Cal.4th at p. 695.) The People do not contend — nor
could they — that defendant’s current conviction for petty theft with a prior theft-related
conviction is defined as a violent felony by section 667.5, subdivision (c) or as a serious
felony by section 1192.7, subdivision (c). Because “the Act requires an inmate’s
eligibility for resentencing to be evaluated on a count-by-count basis” (Johnson, supra,
61 Cal.4th at p. 688), defendant is entitled to a remand so the trial court can exercise its
discretion to determine whether resentencing him as a second strike offender on that
conviction only “would pose an unreasonable risk of danger to public safety”
(§ 1170.126, subd. (f)).



                                              5.
                                       DISPOSITION
       The order denying petition is affirmed with respect to defendant’s conviction for
assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1).
It is reversed with respect to his conviction for petty theft with a prior theft-related
conviction in violation of Penal Code sections 484, subdivision (a), and 666. The matter
is remanded to the trial court with directions to find defendant eligible for resentencing
under the Act as to that conviction only, and to proceed as described in subdivision (f) of
section 1170.126 of the Penal Code.


                                                                   _____________________
                                                                      DETJEN, Acting P.J.
WE CONCUR:


 _____________________
 PEÑA, J.


 _____________________
 SMITH, J.




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