People v. Hale CA2/4

Filed 9/2/15 P. v. Hale CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B260283

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA050761) v.

ODELL HALE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded with directions. Larry Pizarro, 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, Assistant Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

Odell Hale appeals from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36. (Pen. Code, § 1170.126).1 The trial court considered appellant’s sentence as a whole and deemed him ineligible for resentencing because of his conviction of criminal threats, a serious felony. In light of People v. Johnson (2015) 61 Cal.4th 674, the parties agree the sentence should be considered on a count-by-count basis. We therefore reverse and remand for reconsideration of appellant’s eligibility for resentencing on his conviction for corporal injury to spouse, which is not a serious or violent felony.

FACTUAL AND PROCEDURAL SUMMARY In 2005, appellant was convicted by jury of corporal injury to a spouse, cohabitant or child’s parent (§ 273.5, subd. (a), count 1), based on a March 2004 incident during which he repeatedly struck Velvet Rushing, the mother of his two teenage sons. In a separate incident in February 2005, appellant threatened to kill Rushing and the boys while holding a sword, hit his son Odell and threatened him with a knife. Based on that incident, the jury convicted appellant of one count of assault by means likely to produce great bodily injury as to his son Odell (former § 245, subd. (a)(1), now § 245, subd. (a)(4), count 2); three counts of criminal threats (§ 422, subd. (a), counts 4-6), each with an enhancement for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)), and two counts of assault with a deadly weapon as to his son Odell (§ 245, subd. (a)(1), counts 7-8). The court found true three previous strike convictions and sentenced appellant under the Three Strikes Law to a total of 66 years to life in prison. The sentence consisted of 25 years to life, plus 16 years of enhancements, on one of the criminal threats counts (count 4), and a consecutive 25 years to life term on count 1, corporal injury to a spouse. Appellant received concurrent life sentences on the remaining counts.