People v. Thomas CA2/4

Filed 3/4/16 P. v. Thomas CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B263219

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA087606) v.

RELIUS LEWIS THOMAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and Remanded. California Appellate Project, Jonathan B. Steiner and 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, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

In 2011, a jury convicted appellant Relius Lewis Thomas of stalking (Pen. Code § 646.9, subd. (b)),1 and three counts of making criminal threats (§ 422). He admitted four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)) and two prior serious felony convictions (§ 667, subd. (a)(1)). On the stalking count, the trial court sentenced him to 35 years to life in state prison: 25 years to life under the Three Strikes law, plus two consecutive five-year terms for the prior serious felony convictions. On the criminal threat counts, the court imposed, and stayed, terms of 25 years to life. We affirmed the judgment of conviction in an unpublished opinion, B236133. In 2014, appellant filed a petition for recall of his sentence under section 1170.126. As here relevant, section 1170.126, a provision of Proposition 36 enacted by the voters in 2012, “authorizes prisoners serving third strike sentences whose ‘current’ offense (i.e., the offense for which the third strike sentence was imposed) is not a serious or violent felony to petition for recall of the sentence and for resentencing as a second strike case [citations]” (People v. Johnson (2015) 61 Cal.4th 674, 679-680), so long as the court makes certain other findings, including a determination that the petitioner will not pose an unreasonable risk of danger to public safety (§ 1170.126, subd. (f)). In March 2015, the trial court denied appellant’s petition, concluding that defendant was ineligible under section 1170.126, subdivision (e)(1), because defendant’s criminal threats convictions were serious felonies under section 1192.7, subdivision (c)(38). After the trial court’s ruling, our Supreme Court held in Johnson, supra, 61 Cal.4th at page 695, that “resentencing is allowed with respect to a count that is neither serious nor violent, despite the presence of another count that is serious or violent.” Because defendant’s stalking conviction is not a