California Court of Appeals, Second District, Fifth Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION [*]]
APPEAL from an order of the Superior Court of Los Angeles County, No. BA227949 William C. Ryan, Judge.
[Copyrighted Material Omitted]
Jonathan B. Steiner, Richard B. Lennon and Suzanne Hier, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal arises from the denial of a Penal Code section 1170.126 resentencing petition. The trial court ruled defendant, Gene Atkins, was ineligible for resentencing because his current convictions include criminal threats, a serious felony. However, the sole indeterminate life term defendant is serving is for stalking, a non-serious, non-violent felony. Defendant is not serving an indeterminate sentence for a serious or violent felony. Rather, defendant is subject to one stayed indeterminate term and three determinate terms for criminal threats, a serious felony. In the published portion of this opinion, we hold that defendant’s mere conviction of four serious felonies for criminal threats does not permit the denial of his resentencing petition. We reverse the denial order and, upon remittitur issuance, allow the trial court to reconsider its decision for reasons discussed in the unpublished portion of this opinion.
The underlying facts are set forth in our prior opinion on appeal, which we have judicially noticed without objection. (People v. Atkins (July 16, 2003, B161010) [nonpub. opn.].) In the fall of 1998, K.W. became involved in a romantic relationship with defendant. In the spring of 1999, after learning that defendant was married, K.W. attempted to end the relationship. Defendant hit and chocked her. In May, 2001, K.W. obtained a temporary, then a permanent, restraining order against defendant. After the hearing on the permanent restraining order, defendant told K.W. that a piece of paper was not going to keep him away from her. Defendant called K.W. every day. He went to her place of employment. He went to the school where her son practiced sports.
The conduct at issue in this case began on the morning of January 25, 2002. Defendant telephoned K.W. at her place of employment repeatedly. She hung up on him and eventually set her telephone so that all calls went to her voicemail. When she listened to her voicemail, she heard a message from defendant in which he called her a “lying bitch” and said: “I’m going to kill
you. I am sick of going through this with you. Trust me, I’m going to get you.” He also said, “I’m going to beat your ass, motherfucker.” K.W. took these threats very seriously because defendant had hit her in the past and pulled a gun on her. On January 31, 2002, at about 7:30 a.m., defendant banged on the door to K.W.’s apartment and said: “I’m really getting tired of you. I want to talk to you. Open up this door so we can talk.” When she refused, defendant threatened to kill her. He said: “I’m going ...