People v. Warren CA2/7

Filed 11/10/15 P. v. Warren CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B261600
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA030761)
v.
TIMOTHY WARREN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Reversed and remanded with directions.
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, Senior Assistant Attorney General, Noah P. Hill and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
________________________
Timothy Warren challenges the denial of his petition for recall of sentence and
resentencing pursuant to Penal Code section 1170.126,1 part of the Three Strikes Reform
Act of 2012 (Proposition 36). We reverse the order denying his petition in light of the
Supreme Court’s decision in People v. Johnson (2015) 61 Cal.4th 674 and remand for
further proceedings in accordance with the procedures specified in section 1170.126.
FACTUAL AND PROCEDURAL BACKGROUND
In 1997, Warren was convicted of resisting, delaying or obstructing a peace officer
with an attempt to remove the officer’s firearm (§ 148, subd. (d)) and battery with serious
bodily injury (§ 243, subd. (d)). The trial court found true allegations Warren had
suffered two prior convictions qualifying as serious or violent felonies within the
meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). Warren was sentenced
as a third strike offender to an aggregate state prison term of 60 years to life, consisting of
two consecutive indeterminate terms of 25 years to life plus two five-year enhancements
for the two prior serious felony enhancements.
On November 3, 2014, Warren filed a petition for recall of his sentence under
Proposition 36. On November 13, 2014, the superior court denied the petition, finding
Warren ineligible because one of his commitment offenses, battery with serious bodily
injury, was a serious felony. (See § 1170.126, subd. (e)(2).) Warren filed a timely notice
of appeal from the order.
DISCUSSION
People v. Johnson, supra, 61 Cal.4th 674, decided during the pendency of this
appeal, held Proposition 36 “requires an inmate’s eligibility for resentencing to be
1 Statutory references are to the Penal Code.
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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.” (Johnson, supra, at p. 688.)
Although Warren’s conviction for battery with serious bodily injury is a
disqualifying conviction under section 1170.126, pursuant to Johnson he is nonetheless
eligible for recall of his third strike sentence for resisting, delaying or obstructing a peace
officer with an attempt to remove the officer’s firearm. (§ 148, subd. (d).) On remand,
Warren must be resentenced as a second strike offender for his section 148, subdivision
(d), conviction pursuant to section 1170.126, subdivision (f), if he satisfies all the criteria
set forth in subdivision (e), “unless the court, in its discretion, determines that
resentencing [Warren] would pose an unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (f).)
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DISPOSITION
The order is reversed and the matter remanded with directions to the superior court
to grant the petition for recall of sentence and to determine, in compliance with the
provisions of section 1170.126, whether Warren is eligible under section 1170.126,
subdivision (e), for resentencing on his conviction for resisting, delaying or obstructing a
peace officer with an attempt to remove the officer’s firearm, and, if so, to resentence
Warren on that conviction, “unless the court, in its discretion, determines that
resentencing [Warren] would pose an unreasonable risk of danger to public safety,” under
section 1170.126, subdivision (f).
BECKLOFF, J.*
We concur:
PERLUSS, P. J.
SEGAL, 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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