People v. Trinidad CA2/2

Filed 8/7/15 P. v. Trinidad CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B261072

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA347246) v.

JUAN GABRIEL TRINIDAD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. William C. Ryan, Judge. Reversed and remanded.

Jonathan B. Steiner, Executive Director, Richard B. Lennon, California Appellate Project, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Viet H . Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________________________________

Defendant Juan Gabriel Trinidad appeals from the denial with prejudice of his petition for recall of sentence pursuant to the three strikes reform act of 2012. (Pen. Code, § 1170.126.)1 The court below denied defendant’s petition with prejudice after determining defendant was ineligible for resentencing because one of his current convictions was for assault with a deadly weapon in violation of section 245, subdivision (a)(1). Defendant appeals on the ground that the court erred in finding him ineligible for recall in one of his three current convictions. FACTUAL AND PROCEDURAL BACKGROUND Defendant was tried along with a codefendant for crimes arising out of an inmate disturbance at the Men’s Central Jail in Los Angeles.2 After flooding their cells and destroying fixtures, defendants threw broken pieces of their porcelain sinks at sheriff’s deputies and later resisted being removed from their cells. This court affirmed defendant’s convictions for assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 1); resisting an executive officer in violation of section 69 (count 2); and possession of a weapon while in custody in violation of section 4502, subdivision (a) (count 3). Defendant admitted having suffered prior convictions for robbery and voluntary manslaughter within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the Three Strikes law), and section 667, subdivision (a)(1). The trial court sentenced defendant to a total term of 75 years to life consisting of terms of 25 years to life in each of counts 1, 2, and 3, which the trial court ordered to be served consecutively. On November 3, 2014, defendant filed a petition for recall of sentence and resentencing pursuant to section 1170.126. Defendant requested recall of sentence and resentencing in all three counts, arguing that none of his current convictions were for