People v. Stitt CA5

Filed 6/1/16 P. v. Stitt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F070222 Plaintiff and Respondent, (Super. Ct. No. F07905501) v.

DERRIC MEREDITH STITT, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.

Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Poochigian, Acting P.J., Peña, J. and Smith, J.

INTRODUCTION Defendant Derric Meredith Stitt was committed to consecutive prison sentences under the three strikes law (Pen. Code,1 §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) for one serious and violent felony, and one nonserious, nonviolent felony conviction. He filed a petition for resentencing under section 1170.126, the Three Strikes Reform Act of 2012 (the Act). The superior court found him ineligible for resentencing on his nonserious, nonviolent conviction, because of the serious and violent felony conviction. Defendant appealed the denial of his petition. After the parties’ submitted briefing on this issue to this court, the California Supreme Court held “an inmate is eligible for resentencing with respect to a current offense that is neither serious nor violent despite the presence of another current offense that is serious or violent.” (People v. Johnson (2015) 61 Cal.4th 674, 695 (Johnson).) Johnson makes clear that defendant was not statutorily ineligible for resentencing. Accordingly, we will reverse the order from which this appeal is taken and remand the matter for further consideration of defendant’s petition. FACTS AND PROCEDURAL HISTORY2 A jury convicted defendant of second degree robbery (§ 211, count 1), second degree commercial burglary (§§ 459, 460, subd. (b), count 2), receiving stolen property (§ 496, subd. (a), count 3), attempted grand theft of property (§§ 664, 487, subd. (a), count 4), identity theft (§ 530.5, subd. (a), count 5), and resisting a peace officer, a misdemeanor (§ 148, subd. (a)(1), count 5). In a bifurcated proceeding, the jury found true allegations defendant had suffered five prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and he served two prior prison terms (§ 667.5, subd. (b)).