Filed 12/18/15 P. v. Becerra CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B263874
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA077776)
v.
ANTHONY DAVID BECERRA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Reversed in part; affirmed in part.
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, Victoria B. Wilson and
Viet H. Nguyen , Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Anthony David Becerra, appeals from an order denying his Penal Code
section 1170.1261 petition to recall his indeterminate sentences. We reverse the denial
order solely as to his methamphetamine possession conviction and remand for further
proceedings as to that count only.
On November 3, 2008, defendant was sentenced to consecutive 25-years-to-life
terms for: firearm assault (former § 245, subd. (a)(2), Stats. 2004, ch. 494, § 1, p. 4040)
(count 1), a serious felony (§ 1192.7, subd. (c)(31)); criminal threats (former § 422, Stats.
1998, ch. 825, § 3, pp. 5161-5162) (count 3), a serious felony (§ 1192.7, subd. (c)(38));
and methamphetamine possession (former Health & Saf. Code, § 11377, subd. (a), Stats.
2002, ch. 664, § 131, p. 3860) (count 4), a nonviolent and nonserious felony. (§§ 667.5,
subd (c); 1192.7, subd. (c)). On February 6, 2015, defendant filed his resentencing
petition. On February 27, 2015, defendant’s resentencing petition was denied. The trial
court ruled: “One of [d]efendant’s current convictions is for criminal threats . . . , which
is a serious felony under . . . section 1192.7[, subdivision] (c)(38). This conviction makes
[d]efendant ineligible for resentencing pursuant to . . . section 1170.126[, subdivision]
(e)(1).”
On July 2, 2015, in People v. Johnson (2015) 61 Cal.4th 674, 688 (Johnson), our
Supreme Court held: “[T]he [Three Strikes Reform 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.”
As noted above, methamphetamine possession is neither a serious nor a violent
felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).) Defendant asserts, the Attorney General
concedes and we agree that, viewed on a count-by-count basis, defendant is eligible for
resentencing on his methamphetamine possession count. (Johnson, supra, 61 Cal.4th at
1 Further statutory references are to the Penal Code except where otherwise noted.
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p. 688) This is because defendant is serving an indeterminate life term imposed for
methamphetamine possession, a nonserious, nonviolent felony conviction. (§ 1170.126,
subd. (e)(1).) Further, methamphetamine possession is not one of the offenses appearing
in sections 667, subdivision (e)(2)(C)(i)-(iii) or 1170.12, subdivision (c)(2)(C)(i)-(iii).
(§ 1170.126, subd. (e)(2).) And, according to the record before us, defendant has no prior
conviction for any of the offenses appearing in sections 667, subdivision (e)(2)(C)(iv) or
1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126, subd. (e)(3).) The Attorney General
impliedly concedes it has no record of any such prior conviction.
The order denying the resentencing petition in its entirety is reversed in one
respect. Upon remittitur issuance, the trial court shall resentence defendant on his
methamphetamine possession conviction unless it determines that resentencing him
would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) The
order denying the resentencing petition is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
MOSK, J.
KRIEGLER, J.
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