People v. Robinson CA2/5

Filed 9/10/15 P. v. Robinson CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B260635

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA019803) v.

GARLON GRADY ROBINSON,

Defendant and Appellant.

Appeal from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed in part, reversed in part 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.

In April 2000, a jury convicted defendant, Garlon Grady Robinson, of: two counts of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a))1; deadly weapon assault, to wit, steel toe boots (former § 245, subd. (a)(1), Stats. 1999, ch. 129, § 1); and assault by means of force likely to produce great bodily injury (ibid.). Defendant was found to have sustained two prior convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. Defendant was sentenced to consecutive 25-years-to-life terms on the two aggravated assault counts. We affirmed defendant’s conviction on appeal. (People v. Robinson (Apr. 19, 2001, B142456) [nonpub. opn.].) The present appeal is from the denial of defendant’s section 1170.126 resentencing petition. The trial court found defendant was ineligible for resentencing because, “One of [d]efendant’s current convictions is for assault with a deadly weapon, to wit, steel toe boots . . . , which makes the underlying felony conviction a serious felony pursuant to . . . section 1192.7[, subdivision] (c)(23), making [d]efendant ineligible for resentencing pursuant to . . . section 1170.126[, subdivision] (e)(2).” This was the sole ground upon which the trial court denied defendant’s sentence recall petition. Deadly weapon assault is a serious felony under section 1192.7, subdivision (c)(31). Further, any felony in which the defendant personally used a dangerous or deadly weapon also is a serious felony under section 1192.7, subdivision (c)(23). Here, in the course of assaulting his wife, defendant kicked her with a steel-toe boot. (People v. Robinson, supra, typed opn. at pp. 3-6.) We agree that defendant is ineligible for resentencing on his deadly weapon assault conviction. But in People v. Johnson (2015) 61 Cal.4th 674, 679 our Supreme Court held, “[T]he presence of a conviction of a serious or violent felony does not disqualify an inmate from resentencing with respect to a current offense that is neither serious nor violent.” Thus, defendant’s deadly weapon assault conviction does not prevent resentencing on the remaining assault by means of force likely to produce great