People v. Anderson CA4/1

Filed 7/16/15 P. v. Anderson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065338

Plaintiff and Respondent,

v. (Super. Ct. No. SCD114427)

KENNETH JEROME ANDERSON,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of San Diego County,

David J. Danielsen, Judge. Reversed and remanded with directions.

Patrick DuNah and Leslie Ann Rose, under appointment by the Court of Appeal,

for Defendant and Appellant.

Kamala D. Harris, Attorney General, and Anthony Da Silva, Deputy Attorney

General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Kenneth Jerome Anderson is serving, as a third strike recidivist

offender, an aggregate state prison sentence of 81 years to life imposed in 1996 under the
pre-Proposition 36 version of California's Three Strikes law (Pen. Code,1 §§ 667, subds.

(b)–(i), 1170.12, subds. (a)–(d)). He appeals an order denying his post-Proposition 36

petition under section 1170.126 in which he requested that two of the three consecutive

25-year-to-life sentences that are included in his aggregate sentence be recalled and that

he be resentenced as a second strike offender.

As this appeal involves the interpretation of Proposition 36, and in order to

provide necessary context in framing the issue presented, we must first explain the

pertinent provisions of Proposition 36 and summarize relevant portions of the procedural

background of this case.

Overview of Proposition 36

In Teal v. Superior Court (2014) 60 Cal.4th 595, 596-597 (Teal), the California

Supreme Court succinctly explained the relevant provisions of Proposition 36 and the

petition procedure at issue here for recalling a sentence imposed under the pre-

Proposition 36 version of the Three Strikes law:

"On November 6, 2012, the California electorate approved
Proposition 36, otherwise known as the Three Strikes Reform Act of
2012 (the Act), which became effective the next day. Before the
Act's passage, the Three Strikes law provided that a recidivist
offender with two or more qualifying strikes was subject to an
indeterminate life sentence if the offender was convicted for any
new felony offense. [Citation.] The Act amended the Three Strikes
law so that an indeterminate life sentence may only be imposed
where the offender's third strike is a serious and/or violent felony or
where the offender is not eligible for a determinate sentence based
on other disqualifying factors. [Citations.] The Act also enacted
section 1170.126, establishing a procedure for an offender serving an

1 All further statutory references are to the Penal Code unless otherwise specified.
2
 indeterminate life sentence for a third strike conviction that is not
defined as a serious and/or violent felony to file a petition for recall
of sentence. (§ 1170.126, subd. (b).)" (Fn. omitted.)

Anderson's Convictions, Aggregate Sentence, and Petition

A jury convicted Anderson of three nonserious and nonviolent felony drug

offenses (counts 1, 4 & 5) that were strikes under the pre-Proposition 36 version of

California's Three Strikes law: one count of possessing cocaine base for sale in violation

of Health and Safety Code section 11351.5 (count 1), and two counts of

selling/furnishing cocaine base in violation of Health and Safety Code section 11352,

subdivision (a) (counts 4 & 5).2 The jury also convicted Anderson of possession of a

firearm by a felon (count 2: former § 12021, subd. (a)).3 The court declared a mistrial as

to another drug offense charged in count 3 (possession of a firearm by a possessor of a

controlled substance in violation of Health & Saf. Code, § 11370.1, subd. (a)), and the

court later dismissed that count.

Of particular importance here, the jury found to be true an allegation that

Anderson was personally armed with a firearm within the meaning of section 12022,

2 The felony offenses of possessing cocaine base for sale and selling/furnishing
cocaine base are not among the crimes listed in section 1192.7, subdivision (c), which
defines the term "serious felony," and they are not among the offenses listed in section
667.5, subdivision (c), which defines the term "violent felony."

3 "Effective January 1, 2012, former section 12021[, subdivision ](a), was repealed
and reenacted without substantive change as section 29800, subdivision (a)." (People v.
White (2014) 223 Cal.App.4th 512, 518, fn. 2 (White).) Anderson's conviction of count 2
is not pertinent to the issue presented in this appeal. However, on remand it may be
relevant to the exercise of the court's discretion under section 1170.126, subdivisions (f)
and (g) (discussed, post).
3
subdivision (c) (hereafter section 12022(c)) when he committed his count 1 offense of

possessing cocaine base for sale. The prosecution had not alleged and, thus, the jury did

not find that Anderson was armed with a firearm when he committed counts 4 and 5.

In a bifurcated proceeding the trial court found that Anderson had suffered two

prior strikes within the meaning of the Three Strikes law: (1) a 1980 conviction of

robbery while armed with a firearm (Super. Ct. San Diego County, No. CR48947); and

(2) a 1991 conviction of assault with a firearm (Super. Ct. San Diego County, No.

CR121868). The court also found to be true a count 1 allegation that Anderson had

previously been convicted of a drug offense (Health and Saf. Code, § 11351.5) within the

meaning of Health and Safety Code section 11370.2, subdivision (a).

The trial court sentenced Anderson under the pre-Proposition 36 version of the

Three Strikes law to an aggregate prison term of 81 years to life, which he is now

serving. His sentence consists of three consecutive indeterminate 25-year-to-life

terms─one for each of the convictions of the nonserious and nonviolent felonies charged

in counts 1, 4, and 5, plus the low determinate term of three years for the jury's finding

that Anderson was personally armed with a firearm when he committed his count 1

offense of possessing cocaine base for sale, plus an additional determinate three-year

term for the count 1 prior-drug-offense enhancement (Health and Saf. Code, § 11370.2,

subd. (a)).4

4 The court imposed but stayed under section 654 an indeterminate term of 25 years
to life for Anderson's count 2 conviction of possession of a firearm by a felon.
4
 In December 2012, using the procedure authorized by Proposition 36, Anderson

filed a petition under section 1170.126 for a recall of his sentence. In his petition

Anderson specifically sought resentencing as a second strike offender for his convictions

of the nonserious/nonviolent felony offenses charged in counts 4 and 5 for which he was

sentenced to consecutive life terms of imprisonment.

In January 2014 the court denied Anderson's petition, finding he was "statutor[il]y

disqualified" and thus ineligible for resentencing with respect to his count 4 and count 5

offenses because "[h]e was, in fact, armed during the commission of the offense [(count

1)] which resulted in the life-in-prison sentence." Anderson concedes on appeal that he is

ineligible for resentencing with respect to his count 1 conviction because he was armed

with a firearm when he committed that third drug offense.

Issue and Holdings

We must resolve the following principal issue: Is Anderson eligible to be

resentenced under section 1170.126 as a second strike offender for his count 4 and count

5 nonserious and nonviolent felony offenses of selling/furnishing cocaine base─for which

he is serving two consecutive third strike life sentences─if he satisfies all of the

resentencing eligibility criteria set forth in subdivision (e) of section 1170.126 (hereafter

section 1170.126(e), discussed, post) with respect to each of those offenses, even though

he is not eligible to be resentenced with respect to his count 1 nonserious and nonviolent

felony offense of possessing cocaine base for sale for which he is serving another third

strike life sentence?

5
 If the answer to this question is yes, the order denying Anderson's petition must be

reversed on the ground the court erroneously found he was ineligible for resentencing as

a matter of law under section 1170.126.

We hold that, under the plain language of section 1170.126, Anderson is eligible

to be resentenced as a second strike offender for his count 4 and count 5

nonserious/nonviolent felony offenses, notwithstanding his ineligibility to be resentenced

under that section for his count 1 nonserious/nonviolent count offense, if he demonstrates

that all three of the eligibility criteria set forth in section 1170.126(e) are satisfied with

respect to each of those two counts. Accordingly, we reverse the order denying

Anderson's petition and remand the matter for a new hearing on the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background5

1. Count 4

On August 1, 1994, Anderson sold about 5.8 grams of cocaine base to two

witnesses who were working under the supervision of FBI agents and San Diego Police

Department detectives.

2. Count 5

On September 6, 1994, Anderson sold about five grams of cocaine base to the

same witnesses, who again were working under the supervision of law enforcement

officers.

5 The following uncontested facts are derived from the October 1996 probation
officer's report.
6
 3. Count 1

On June 13, 1995, members of the San Diego Police Department's Violent Crime

Task Force went to a residence in San Diego to execute warrants for Anderson's arrest.

After the officers saw Anderson leave the residence and drive away, they pursued him,

stopped his vehicle, and arrested him. The officers learned that Anderson was an

absconded parolee who was subject to a search condition.

The officers transported Anderson to his residence and searched his home. In

Anderson's kitchen the officers found seven rocks of cocaine base that weighed a total of

about three grams, a scale with off-white residue, and a ceramic bong. In his bedroom

the officers found two loaded handguns and ammunition.

B. Procedural Background

1. Petition

On December 14, 2012, Anderson filed in propria persona a petition to recall his

count 4 and count 5 third strike life sentences and for resentencing under the Act for

those offenses. He argued that he was eligible for resentencing as a second strike

offender because those two current offenses were nonserious/nonviolent felonies. The

trial court appointed counsel to represent Anderson.

a. Ruling

On January 24, 2014, following a hearing, the court denied Anderson's petition,

finding Anderson was "statutor[il]y disqualified." The court stated:

"The court reviewed the file on this matter. It appears that the record
of conviction on this case includes the specific finding of the truth of
the allegation [under] [section] 12022(c). He was, in fact, armed

7
 during the commission of the offense which resulted in the life-in-
prison sentence. According to the [Act], that would disqualify him
from relief." (Italics added.)

The court ordered that Anderson "serve out the previously ordered sentence."

2. Appeal

On February 5, 2014, Anderson timely and properly appealed from the order

denying his petition for relief under section 1170.126. (Teal, supra, 60 Cal.4th at p. 601

[an order denying a petition to recall a sentence pursuant to section 1170.126 is an

appealable order].)

Anderson's appointed appellate counsel filed a brief asking this court to

independently review the record for error as mandated by People v. Wende (1979) 25

Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel referred to

the following as a possible, but not arguable, issue: "Whether the trial court erred in

finding [Anderson] ineligible for resentencing under Penal Code section 1170.126."

Anderson thereafter filed in propria persona a supplemental opening brief in which

he argued the trial court erred in finding he is statutorily ineligible under the Act for

resentencing for his convictions of counts 4 and 5. Conceding he was ineligible for

resentencing with respect to the life sentence imposed for his count 1 conviction of

possessing cocaine base for sale, Anderson asserted "[t]here is nothing anywhere in the

statutory language precluding [him] from being resentenced on the two nonserious,

nonviolent offenses [(counts 4 & 5)] for which a life term has also been imposed."

8
 This court directed the Attorney General to file a written response to Anderson's

supplemental opening brief and provided Anderson's appellate counsel an opportunity to

file a written reply on his behalf.

The Attorney General thereafter filed a letter brief claiming the trial court properly

concluded that Anderson is ineligible for resentencing. The Attorney General asserted

that Anderson "was armed with a firearm during the commission of his commitment

offenses because he had a firearm at his disposal for offensive or defensive use" (italics

added); and, thus, "under the plain language of section 1170.126, subdivision (e)(2),

[Anderson] is ineligible for resentencing as a second strike offender" for his count 4 and

count 5 offenses.

Anderson's appellate counsel filed a letter brief in response. Counsel asserts that

"[Anderson's] sentences on counts 4 and 5 should have been considered for possible re-

sentencing under [] section 1170.126 because they were non-violent/non-serious

offenses; [they] occurred on separate dates, times and location than count 1; and, in

neither offense was a firearm alleged or involved."

In response to this court's request for additional briefing,6 the Attorney General

filed a supplemental letter brief acknowledging that the Attorney General's previous letter

brief "erroneously stated that [Anderson] was armed with a firearm during the

6 Noting that the Attorney General's first letter brief had stated that "[Anderson] was
armed with a firearm during the commission of his commitment offenses because he had
a firearm at his disposal for offensive or defensive use" (italics added), this court
requested that the Attorney General file and serve a supplemental letter brief answering
the following question: "As to each of his commitment offenses, where does the record
show that [he] was armed with a firearm during his commission of the offense?"
9
commission of his commitment offenses," and that "[Anderson's] convictions for sales of

cocaine base in counts 4 and 5 occurred on a separate date and did not involve use of a

weapon."

DISCUSSION

The principal issue presented is whether Anderson is eligible to be resentenced

under section 1170.126 as a second strike offender for his count 4 and count 5 nonserious

and nonviolent felony offenses of selling/furnishing cocaine base─for which he is serving

two consecutive third strike life sentences─if he satisfies all of the resentencing eligibility

criteria set forth in section 1170.126(e) with respect to each of those offenses, even

though (as Anderson concedes) he is not eligible to be resentenced with respect to his

count 1 nonserious and nonviolent felony offense of possessing cocaine base for sale for

which he is serving another third strike life sentence.

We hold that, under the plain language of section 1170.126, Anderson is eligible

to be resentenced as a second strike offender for his count 4 and count 5

nonserious/nonviolent felony offenses, notwithstanding his ineligibility to be resentenced

under that section for his count 1 nonserious/nonviolent count offense, if he demonstrates

that all three of the eligibility criteria set forth in section 1170.126(e) are satisfied with

respect to each of those two counts.

A. Standard of Review and Principles of Statutory Interpretation

We are asked to determine whether Anderson is eligible for resentencing as to

counts 4 and 5 based upon interpretation of section 1170.126. As the interpretation of a

10
statute presents a question of law, we apply the de novo standard of review. (People v.

Martinez (2014) 226 Cal.App.4th 1169, 1181.)

The principles that guide our interpretation of section 1170.126 are well-

established. Section 1170.126 was enacted by the electorate when it approved

Proposition 36. (Teal, supra, 60 Cal.4th at pp. 596-597.) "[O]ur interpretation of a ballot

initiative is governed by the same rules that apply in construing a statute enacted by the

Legislature." (People v. Park (2013) 56 Cal.4th 782, 796 (Park).) When we interpret a

statute, "our goal is '"'to ascertain the intent of the enacting legislative body so that we

may adopt the construction that best effectuates the purpose of the law.'"'" (People v.

Albillar (2010) 51 Cal.4th 47, 54-55.) Thus, as section 1170.126 was enacted by the

electorate, it is the voters' intent that controls. (See Park, at p. 796.) "'We first examine

the words of the statute, "giving them their ordinary and usual meaning and viewing them

in their statutory context, because the statutory language is usually the most reliable

indicator of legislative intent."'" (Albillar, supra, 51 Cal.4th at p. 55.) If the language of

the statute is ambiguous, we examine other indicators of the voters' intent, particularly the

analysis and arguments contained in the official ballot pamphlet. (People v. Briceno

(2004) 34 Cal.4th 451, 459.) However, "'"[i]f the language of the statute is not

ambiguous, the plain meaning controls and resort to extrinsic sources to determine the

[electorate's] intent is unnecessary."'" (Albillar, at p. 55.) "Once the electorate's intent

has been ascertained, the provisions must be construed to conform to that intent." (Park,

supra, 56 Cal.4th at p. 796.)

11
 B. Analysis

By approving Proposition 36 the electorate enacted section 1170.126, which

established a procedure under which an offender serving an indeterminate life sentence as

a third strike offender for a nonserious/nonviolent felony conviction that was a strike

under the pre-Proposition 36 version of the Three Strikes law, may file a petition for

recall of sentence and request resentencing as a second strike offender for that offense.

(Teal, supra, 60 Cal.4th at pp. 596-597; White, supra, 223 Cal.App.4th at p. 517.) The

petitioning inmate is eligible for resentencing if all three of the following eligibility

criteria set forth in section 1170.126(e)7 are satisfied: "'(1) the [inmate] is serving an

indeterminate life sentence for a crime that is not a serious or violent felony; (2) the life

sentence was not imposed for any of the offenses appearing in sections 667[, subdivision

(e)(2)(C)] and 1170.12[, subdivision (c)(2)(C)]; and (3) the inmate has no prior

convictions for any of the offenses appearing in clause (iv) of section 667[, subdivision

7 Section 1170.126(e) provides in full: "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 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."

12
(e)(2)(C)] or section clause (iv) of section 1170.12[(c)(2)(C)]. (White, supra, at p. 522,

italics omitted; § 1170.126(e).)

If the petitioning inmate satisfies all three of the foregoing section 1170.126(e)

resentencing eligibility criteria, the trial court must resentence the inmate as a second

strike offender unless the court, in the exercise of its discretion under subdivision (f) of

section 1170.126 (hereafter section 1170.126(f)),8 determines that such resentencing

would pose an unreasonable risk of danger to public safety. (White, supra, 223

Cal.App.4th at p. 522.) Subdivision (g) of section 1170.126 (hereafter section

1170.126(g)) sets forth several factors that a trial court may consider in exercising its

discretion under section 1170.126(f) to grant or deny the inmate's petition for

resentencing.9

Section 1170.126, however, does not explicitly address how a trial court should

proceed in the more complex circumstances presented here in which the petitioning

8 Section 1170.126(f) provides: "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." (Italics added.)

9 Section 1170.126(g) provides: "In exercising its discretion in [section
1170.126(f)], the court may consider: [¶] (1) The petitioner's criminal conviction history,
including the type of crimes committed, the extent of injury to victims, the length of prior
prison commitments, and the remoteness of the crimes; [¶] (2) The petitioner's
disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any other
evidence the court, within its discretion, determines to be relevant in deciding whether a
new sentence would result in an unreasonable risk of danger to public safety."
13
inmate is serving an aggregate sentence consisting of multiple third strike life terms of

imprisonment imposed under the pre-Proposition 36 version of the Three Strikes law and

he is seeking to be resentenced as a second strike offender for some of his current

nonserious/nonviolent felony offenses, but he is ineligible under section 1170.126 to be

resentenced for another current nonserious/nonviolent felony offense for which he is

serving another third strike life term that is part of his aggregate sentence. To resolve the

issue presented in this appeal, we must interpret section 1170.126 in accordance with the

applicable principles of statutory construction (discussed, ante).

Turning to the language of section 1170.126 and giving the words their ordinary

and usual meaning and viewing them in their statutory context, as we must (Park, supra,

56 Cal.4th at p. 796), we conclude that the plain language of section 1170.126 shows the

electorate, in approving Proposition 36 and enacting that section, intended that an inmate

like Anderson, who is serving multiple third strike terms of life imprisonment based upon

current commitment convictions of nonserious/nonviolent felonies, may seek

resentencing as a second strike offender for some of those offenses, notwithstanding his

ineligibility for such resentencing with respect to another one of those offenses, provided

all three of the eligibility factors set forth in section 1170.126(e) (discussed, ante) are

satisfied with respect to the offenses for which the inmate is requesting resentencing.

An examination of the text of section 1170.126 discloses that nothing in the

language of that section supports a conclusion that the voters intended to preclude such

resentencing. "Section 1170.126, subdivisions (a) and (b), broadly describe who is

14
eligible to file a petition and to be resentenced." (Teal, supra, 60 Cal.4th at p. 598.)

Subdivision (a) of section 1170.126 (hereafter section 1170.126(a)) states:

"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." (Italics added.)

Section 1170.126(a) uses the terms "indeterminate term of imprisonment" and

"sentence," rather than "aggregate indeterminate term of imprisonment," "aggregate

sentence," or any other term that would suggest the electorate intended to preclude

resentencing eligibility for an inmate, like Anderson, whose aggregate sentence includes

multiple consecutive third strike terms of life imprisonment based upon multiple

commitment convictions of nonserious/nonviolent felonies, but who is ineligible for

resentencing with respect to one of those current offenses. Such an inmate, who is

seeking resentencing under the Act as a two strike offender but is challenging only some

of the third strike life terms that are included in his aggregate sentence, plainly falls

within the scope of section 1170.126(a) because, as to each of the life terms he is

challenging, he is "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," even though he is ineligible for resentencing with respect to another current

nonserious/nonviolent felony for which he is serving an additional third strike life term

that is also included in his aggregate sentence.

15
 Such an inmate also plainly falls within the scope of subdivision (b) of section

1170.126 (hereafter section 1170.126(b)), which allows "[a]ny person" to petition for

resentencing if he or she is "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 . . . 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."10 Such an inmate plainly belongs to the class of

inmates described in section 1170.126(b) even if the inmate is ineligible for resentencing

with respect to another current nonserious/nonviolent felony for which he is serving one

of the third strike life terms included in his aggregate sentence.

Section 1170.126(e) (see fn. 7, ante), which sets forth the resentencing eligibility

criteria, also contains no language that would suggest the electorate intended to render an

inmate like Anderson ineligible for resentencing as a second strike offender.

Thus, the plain and unambiguous language of section 1170.126 supports the

conclusion that an inmate like Anderson is eligible for resentencing as a second strike

offender for some of his commitment nonserious/nonviolent felony offenses,

10 Section 1170.126(b) provides in full: "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."
16
notwithstanding his ineligibility for such resentencing with respect to another such

offense for which he is currently serving an additional life sentence that is part of his

aggregate sentence, provided all three of the eligibility factors set forth in section

1170.126(e) are satisfied with respect to each of the offenses for which the inmate is

requesting resentencing.

Our conclusion finds support in our Supreme Court's recent decision in People v.

Johnson (July 2, 2015, S219454, S219819) ___ Cal.4th ___ [2015 Cal. Lexis 4521],

which addressed an issue similar, but not identical, to the one presented here. The issue

in Johnson was "whether an inmate who was convicted of both a serious or violent felony

and a felony that is neither serious nor violent is eligible for resentencing with respect to

the felony that is neither serious nor violent." (Id. at p. *2.) The Supreme Court held that

"an 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." (Id. at p. *39.) The Johnson court explained 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." (Johnson, at p. *21, italics added.)

Here, we similarly have concluded that Anderson may seek resentencing under the

Act with respect to the three-strikes sentences imposed for his convictions of the felonies

charged in counts 4 and 5, which are neither serious nor violent, despite the fact that he

17
remains subject to a third-strike sentence of 25 years to life for his conviction of the

nonserious and nonviolent felony charged in count 1.

For all of the foregoing reasons, we conclude the court erred in finding Anderson

is ineligible for resentencing as a matter of law under section 1170.126. Accordingly, we

reverse the order denying Anderson's petition for a recall of his count 4 and count 5 life

sentences which are part of his 81-year-to-life aggregate sentence, and we remand the

matter to the superior court with directions to conduct a new hearing on the petition in a

manner consistent with this opinion. If Anderson meets his burden on remand of

demonstrating he is eligible for resentencing for his convictions of counts 4 and 5

because all three of the eligibility criteria set forth in section 1170.126(e) are satisfied as

to each of those counts, he must be resentenced as a second strike offender for his

convictions of those counts unless the trial court in the exercise of its discretion under

section 1170.126(f) determines that resentencing would pose an unreasonable risk of

danger to public safety. (People v. Yearwood (2013) 213 Cal.App.4th 161, 170 [if the

prisoner's petition for resentencing satisfies all three of the eligibility criteria set forth in

section 1170.126(e), "the prisoner shall be resentenced as a second strike offender 'unless

the court, in its discretion, determines that resentencing the prisoner would pose an

unreasonable risk of danger to public safety'"], quoting § 1170.126(f); accord, White,

supra, 223 Cal.App.4th at p. 522.)

DISPOSITION

The order denying Anderson's Penal Code section 1170.126 petition for the recall

of his count 4 and count 5 life sentences and for resentencing on those counts is reversed.

18
The matter is remanded to the superior court with directions (1) to conduct a new hearing

on Anderson's petition; (2) to determine whether Anderson has met his burden of

demonstrating that all three eligibility criteria set forth in Penal Code section 1170.126,

subdivision (e), are satisfied with respect to his count 4 and count 5

nonserious/nonviolent felony offenses; and (3) if Anderson has met that burden, to

resentence him as a second strike offender for those offenses unless the court, in the

exercise of its discretion under Penal Code section 1170.126, subdivisions (f) and (g),

determines that such resentencing would pose an unreasonable risk of danger to public

safety.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

19