People v. Morales CA2/3

Filed 11/13/15 P. v. Morales CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B257335

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA029531) v.

ESEQUIEL MORALES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded. California Appellate Project, Jonathan B. Steiner and Susan E. Hier, 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 Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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Esequiel Morales1 appeals from an order denying his petition for recall and resentencing pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (the Act). He contends the trial court erred in concluding he was ineligible for resentencing on his convictions for receiving stolen property. In light of People v. Johnson (2015) 61 Cal.4th 674 (Johnson), we reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND The evidence, the sufficiency of which is not in dispute, established the following. In 1995, Morales committed two counts of first degree burglary and pled guilty to those counts. On March 9, 1998, Morales burglarized Sue Frost’s Saugus residence. On April 28, 1998, Max Allshot’s binoculars were stolen in Saugus. On about May 4, 1998, Valentin Lopez’s weight belt was stolen from his brother’s van, and a weed-whacker was stolen from his pickup truck. On or about May 6, 1998, Morales returned the weed- whacker to Lopez. On May 10, 1998, Los Angeles County sheriff’s deputies found Morales in possession of the binoculars and weight belt. A jury convicted Morales of three counts of receiving stolen property (Pen. Code, § 496, subd. (a))2 and one count of first degree burglary (§ 459), and found he had suffered two prior serious felony convictions (§ 667, subds. (a)-(i)). On January 22, 1999, he was sentenced to prison for 85 years to life pursuant to the Three Strikes law (§ 667, subd. (b)-(i)), consisting of three consecutive terms of 25 years to life as to the burglary and two of the counts for receiving stolen property (relating to the weed- whacker and binoculars) and two five-year terms for the section 667, subdivision (a)(1) prior serious felony conviction enhancements. Morales was also sentenced to prison for 25 years to life for the additional count of receiving stolen property (relating to the weight belt), and the trial court stayed that sentence pursuant to section 654. The judgment was later modified by striking one of the prior serious felony conviction