People v. Wilson CA2/7

Filed 10/13/15 P. v. Wilson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B260281

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA025425) v.

KENNETH ROY WILSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded with directions.

Cheryl Lutz, 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, Senior Assistant Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Kenneth Roy Wilson, serving a three strikes, indeterminate sentence of 56 years to life, petitioned pursuant to Penal Code section 1170.126,1 part of the Three Strikes Reform Act (Proposition 36), for recall of his sentence and resentencing as a second strike offender. The trial court denied the petition on the ground Wilson was ineligible for resentencing because one of the commitment offenses, assault by means of force likely to produce great bodily injury and with a deadly weapon (former § 245, subd. (a)(1)), is a serious felony. (See § 1170.126, subd. (e)(2).) We conclude Wilson was eligible for resentencing and reverse. FACTUAL AND PROCEDURAL BACKGROUND Wilson lived with his girlfriend Belinda P., a child they had together, and Belinda P.’s four children. Wilson came home intoxicated, and he and Belinda P. had a verbal altercation that escalated into a shoving match in the living room. Wilson, a large man, scratched Belinda P.’s face with his fingernails and pushed her into a glass table, which shattered. Wilson then threatened to kill Belinda P. and retrieved a knife from the kitchen before returning to the living room. When Wilson began walking with the knife to the children’s room, Belinda P. blocked him and he jabbed at her, cutting her hands and arms. Wilson threatened to stab her and kill her. (See People v. Wilson (Jan. 15, 2002, B142587) [nonpub. opn].) A jury convicted Wilson in 1996 of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a), count 1), making a terrorist threat with the use of a knife (§§ 422, 12022, subd. (b)(1), count 2) and assault by means of force likely to produce great bodily injury and with a deadly weapon (count 3) with findings he had suffered one prior serious felony conviction for voluntary manslaughter (§ 667, subd. (a)(1)) and four prior convictions qualifying him for sentencing under the three strikes law (§§ 667,