People v. Smith CA4/3

Filed 1/15/16 P. v. Smith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G050533

v. (Super. Ct. No. FWV035340)

TERRYANCE ACEY SMITH, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of San Bernardino, Ingrid Adamson Uhler, Judge. Reversed and remanded for further proceedings. Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

Terryance Acey Smith appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.126 (all further statutory references are to the Penal Code). Smith argues he is eligible for resentencing for his 14 false imprisonment convictions because they are non-serious, non-violent felonies. The Attorney General contends Smith is ineligible for resentencing because first he is also serving life sentences for other serious and/or violent felonies, i.e. robbery and dissuading a witness, and second as to the false imprisonment convictions, the jury found he was armed with a firearm. After briefing in this case was complete, the California Supreme Court filed its opinion in People v. Johnson (2015) 61 Cal.4th 674 (Johnson), and we invited the parties to submit supplemental briefs on the applicability of Johnson to this case. In its supplemental brief, the Attorney General concedes Johnson disposes of her argument Smith’s robbery convictions make him ineligible for resenting. However, the Attorney General maintains Smith was ineligible for resentencing because he was armed during the commission of the false imprisonment offenses. As we explain below, we accept the Attorney General’s concession Smith’s robbery convictions do not make him ineligible for resentencing on his false imprisonment convictions. However, we decline the Attorney General’s invitation to conclude Smith was ineligible on another basis, a basis the trial court did not rely on in denying Smith’s petition. We reverse and remand the matter for further proceedings consistent with this opinion. FACTS In 2006, a jury convicted Smith of 33 felony counts: 13 counts of robbery (§ 211), 14 counts of false imprisonment (§ 236), and six counts of dissuading a witness (§ 136.1, subd. (c)(1)). As to all the counts, the jury found true Smith was a principal armed with a firearm under section 12022, subdivision (a)(1). At a bench trial, the trial court found all the strike prior allegations to be true. The trial court sentenced Smith to