California Court of Appeals, Fourth District, Second Division
Second of two modifications; opinion filed 4/26/13
Mod./pub. order filed 5/15/13 follow
APPEAL from the Superior Court of San Bernardino County No. FVI900076. Eric M. Nakata, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Tami Falkenstein Hennick, and Ifeolu E. Hassan, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
The petition for rehearing filed on May 30, 2013, is denied. The opinion filed in this matter on April 26, 2013, and modified on May 15, 2013, is modified as follows:
On page 8, remove footnote 5, and modify the first sentence of the last paragraph.
The first two sentences of the last paragraph on page 8 should read as follows:
Neither defendant’s current offenses nor his strike priors disqualify him for resentencing pursuant to section 667(e)(2)(C). Defendant contends, therefore, that upon remand for resentencing, the trial court must sentence him pursuant to section 667(e)(2)(C).
These modifications do not change the judgment.
This is an appeal from the sentence imposed on remand for resentencing following our opinion in People v. Lewis (Aug. 23, 2011, E051058) (nonpub. opn.) (Lewis I).
During the pendency of this appeal, the California Supreme Court issued its opinion in People v. Jones (2012) 54 Cal.4th 350 (Jones). Pursuant to that opinion, we conclude that Penal Code section 654 bars imposition of unstayed sentences on both count 1 and count 4, for possession of a firearm by a convicted felon and for receiving stolen property, consisting solely of the same firearm.
Also during the pendency of this appeal, the electorate amended the three strikes law by passing Proposition 36, the Three Strikes Reform Act of 2012, effective November 7, 2012. Defendant contends that the amendment to sections 667 and 1170.12, which would reduce his sentence from 25 years to life to a far lesser determinate term, applies to him under the doctrine of In re Estrada (1965) 63 Cal.2d 740 (Estrada), i.e., that an amendatory statute which reduces punishment applies in all cases not yet final on appeal, unless there is a clear indication that the enacting body did not so intend. As we discuss below, we agree.
In Lewis I, we reversed the conviction on count 3, possession of ammunition by a convicted felon (§ 12316, subd. (b)(1)), and remanded for further proceedings on count 3 and for resentencing on counts 1 and 4. In count 1, defendant was convicted of being a convicted felon in possession of a firearm (former § 12021, subd. (a)); in count 4, defendant was convicted of receiving or possessing stolen property (§ 496, subd. (a)). (Lewis I, supra, E051058 [at p. 2].) The trial court had sentenced defendant, under the three strikes law (§§ 667, subd. (c)(6), 1170.12, subd. (a)(6)), to consecutive terms of 25 years to life on counts 1 and 4, believing that it had no discretion to do otherwise. We held that the court did have the discretion to impose either concurrent or consecutive terms. (Lewis I, supra, E051058 [at pp. 22-23].)
Our remand order directed the district attorney to determine, within 30 days after the opinion became final, whether to retry defendant on that count. The remand order further stated, “If the district attorney elects not to retry defendant on count 3, the court shall dismiss count 3 and hold a new sentencing hearing within 30 days following the district attorney’s election, to determine whether to ...