People v. Warren CA2/7

Filed 11/10/15 P. v. Warren CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B261600

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA030761) v.

TIMOTHY WARREN,

Defendant and Appellant.

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

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Timothy Warren challenges the denial of his petition for recall of sentence and resentencing pursuant to Penal Code section 1170.126,1 part of the Three Strikes Reform Act of 2012 (Proposition 36). We reverse the order denying his petition in light of the Supreme Court’s decision in People v. Johnson (2015) 61 Cal.4th 674 and remand for further proceedings in accordance with the procedures specified in section 1170.126.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Warren was convicted of resisting, delaying or obstructing a peace officer with an attempt to remove the officer’s firearm (§ 148, subd. (d)) and battery with serious bodily injury (§ 243, subd. (d)). The trial court found true allegations Warren had suffered two prior convictions qualifying as serious or violent felonies within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). Warren was sentenced as a third strike offender to an aggregate state prison term of 60 years to life, consisting of two consecutive indeterminate terms of 25 years to life plus two five-year enhancements for the two prior serious felony enhancements. On November 3, 2014, Warren filed a petition for recall of his sentence under Proposition 36. On November 13, 2014, the superior court denied the petition, finding Warren ineligible because one of his commitment offenses, battery with serious bodily injury, was a serious felony. (See § 1170.126, subd. (e)(2).) Warren filed a timely notice of appeal from the order.