People v. Lynn

Filed 11/23/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B260407

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA028632) v.

EVERETTE YVVECK LYNN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded. 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, Assistant Attorney General, Noah P. Hill and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

Defendant and appellant Everette Yvveck Lynn appeals from an order denying his motion for recall and resentencing pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (the Act). He contends that the trial court erred by finding him ineligible for resentencing on one of his two current convictions. In light of People v. Johnson (2015) 61 Cal.4th 674 (Johnson), we reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND In 1996, a jury convicted Lynn of second degree robbery (Pen. Code, § 211)1 and attempted grand theft person (§§ 664, 487, subd. (c)). The trial court found Lynn had suffered four “strike” convictions for serious or violent felonies (§ 667, subds. (b)-(i)) and two prior serious felonies (§ 667, subd. (a)(1)), and had served four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced Lynn to a term of 35 years to life pursuant to the Three Strikes law, comprised of concurrent terms of 25 years to life on each count, plus two 5-year prior serious felony enhancements. We affirmed the judgment. (People v. Lynn (Apr. 17, 2000, B126489) [nonpub. opn.].)2 On November 6, 2012, California voters approved the Act, which amended the Three Strikes law effective November 7, 2012. (Johnson, supra, 61 Cal.4th at p. 679; People v. Jernigan (2014) 227 Cal.App.4th 1198, 1203.) Prior to passage of the Act, a defendant convicted of two prior serious or violent felonies was subject to a 25 years to life sentence upon his or her conviction of any additional felony. (Johnson, at p. 680; People v. Jernigan, at p. 1203; People v. Superior Court (Kaulick) (2013)