People v. Gonzales CA2/6

Filed 9/21/15 P. v. Gonzales CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B261367 (Super. Ct. No. YA049823-01) Plaintiff and Respondent, (Los Angeles County)

v.

PEDRO PAGAN GONZALES,

Defendant and Appellant.

Pedro Pagan Gonzales appeals an order denying his petition to recall his 2002 third strike sentences pursuant to Proposition 36 (Pen. Code, § 1170.126),1 following his convictions for first degree residential burglary (§ 459) (counts 1 and 2), possession of a firearm by a felon (former § 12021, subd. (a)(1) (count 4), receiving stolen property (§ 496) (counts 6-9), and conspiracy to commit residential burglary (§§ 182, subd. (a)(1), 459) (count 10). Gonzales "was sentenced to a term of 100 years to life, consisting of four consecutive terms of 25 years to life" based on four third strikes: count 1 (first degree burglary), count 2 (first degree burglary), count 4 (possession of a firearm by a felon), and count 6 (receiving stolen property). (People v. Gonzales (Oct. 15, 2003, No. B159396) [nonpub. opn.].)

1 All statutory references are to the Penal Code.

We conclude the trial court erred by ruling Gonzales was "ineligible for resentencing" under Proposition 36 for any of his third strike convictions because "[o]ne of Defendant's current convictions is for first degree burglary." We reverse and remand. FACTS In 2002, Gonzales was sentenced to four consecutive 25-year-to-life three strike terms. Two were based on third strikes for a serious felony--first degree residential burglary (counts 1 and 2). (§ 1192.7, subd. (c)(18).) The other two life sentences were based on felonies that qualified as third strikes prior to Proposition 36--possession of a firearm by a felon and receiving stolen property. In 2014, Gonzales filed a petition "to recall sentence" pursuant to Proposition 36. (§ 1170.126.) He claimed that 1) only two of his four three strike life sentences were based on "serious" third strike felonies, and 2) he was eligible for resentencing on the two third strikes that were not serious or violent felonies. The trial court ruled Gonzales was not eligible for resentencing on any of his third strike felonies. It said, "One of Defendant's current convictions is for first degree burglary in violation of Penal Code section 459, which is a serious felony . . . thereby making Defendant ineligible for resentencing . . . . " (Italics added.) It denied the petition "with prejudice." DISCUSSION Resentencing Under Proposition 36 Gonzales contends the trial court erred by denying his petition to recall a "third 'strike' sentence for receiving stolen property" solely because one of his other convictions involved first degree residential burglary. The People agree and contend the court also improperly prevented him from seeking resentencing on the third strike for possession of a firearm by a felon. Proposition 36, the Three Strikes Reform Act of 2012, "created a postconviction release proceeding," which gives a prisoner the opportunity to "have his or her sentence recalled." (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1010.) "[A] prisoner currently serving a sentence of 25 years to life under the pre-