People v. Moore CA4/2

• Court: California Court of Appeal
• Decided: February 2, 2016
• Docket: E062780
• Status: Unpublished

Opinion

Filed 2/2/16 P. v. Moore CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, E062780

v. (Super.Ct.No. FSB21863)

RONNIE GENE MOORE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

Kenneth H. Nordin, 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, Arlene A. Sevidal and Minh U.

Le, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Ronnie Moore is serving a prison sentence of 86 years to life under the

Three Strikes law after a jury convicted him in 2000 of two counts of second degree

commercial burglary (Pen. Code, § 459)1 and two counts of second degree robbery

(§ 211). Defendant appeals from the trial court’s denial of his petition for recall of

sentence under Proposition 36. Defendant argues, the People concede and this court

agrees that, under People v. Johnson (2015) 61 Cal.4th 674 (Johnson), defendant’s

robbery convictions do not disqualify him from eligibility for resentencing as to the

burglary convictions. We remand to the trial court to determine whether defendant

otherwise qualifies for resentencing, given his very extensive criminal record, including a

prior conviction for rape.

DISCUSSION

In February of 1999, defendant returned to the same gas station market on several

occasions to steal cigarettes. On one occasion he threatened the store clerk after the clerk

pushed the alarm button. On the last occasion, February 17, 1999, defendant went

directly to the front counter, picked up the entire rack of cigarettes and walked out with

them.

On February 7, 1999, defendant went into another business, picked up a display

case of watches and took it out to a waiting vehicle. The clerk followed defendant and

jumped on top of the vehicle as it drove away. The clerk got his feet into the passenger

compartment and began to kick defendant. Defendant grabbed a handgun, but the clerk

1 Section references are to the Penal Code unless otherwise indicated. kicked it out of his hand. The driver then handed defendant a club, which defendant used

to strike the clerk. The clerk stated he wanted to get out of the car. The driver allowed

him to do so.

On the night of February 17-18, 1999, defendant ran from officers trying to arrest

him and elbowed one in the nose. He refused to cooperate even after one officer tackled

him to the ground. Defendant was eventually handcuffed and arrested after backup

officers arrived on the scene.

On August 7, 2000, the People filed an information charging defendant with two

counts of second degree commercial burglary, two counts of second degree robbery, and

one count of misdemeanor battery on a police officer (§ 243, subd. (b)). The People also

alleged defendant had three prior strike convictions (§§ 1170.12, subds. (a)-(d) & 667,

subds. (b)-(i)), four prior prison convictions (§667.5, subd. (b)) and three prior serious

felony convictions (§ 667, subd. (a)(1)).

On August 16, 2000, a jury convicted defendant of the burglary and robbery

charges. The following day the trial court found true all three strike priors, two of the

prison term priors and the three serious felony priors.

On December 1, 2000, the court sentenced defendant to a total term of 86 years to

life.

On May 23, 2013, the superior court read and considered defendant’s petition filed

under section 1170.126. The court denied the petition on the ground that “Petitioner does not satisfy the criteria in PC1170.126(e) and is not eligible,” and noted that “Defendant’s

current commitment offenses include 2 counts of robbery PC211 a serious felony.”

On November 10, 2014, defendant filed a handwritten document which the

superior court deemed to be a “Petition for Recall of Sentence pursuant to PC1170.126.”

On January 8, 2015, the court denied the petition “for the same reasons stated on

5/23/13.”

This appeal followed.

The Three Strikes Reform Act of 2012, added by Proposition 36 (as approved by

voters, Gen. Elec. (Nov. 6, 2012)) (Proposition 36 or the Act) created a postconviction

release proceeding for third strike offenders serving indeterminate life sentences for

crimes that are not serious or violent felonies. (See §§ 667, 1170.12, 1170.126.) If such

an inmate meets the criteria enumerated in section 1170.126, subdivision (e), he or she

will be resentenced as a second strike offender unless the court determines such

resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126,

subd. (f); People v. Yearwood (2013) 213 Cal.App.4th 161, 168.)

As relevant here, in order for an inmate to be eligible for resentencing under the

Act, he or she must be serving an indeterminate term of life imprisonment imposed under

the Three Strikes law “for a conviction of a felony or felonies that are not defined as

serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of

Section 1192.7.” (§ 1170.126, subd. (e)(1).) Defendant’s convictions for second degree commercial burglary meet this requirement; however, his convictions for second degree

robbery do not. (§§ 667.5, subd. (c)(9) & 1192.7, subd. (c)(19).)

Defendant correctly argues that his robbery convictions do not make him

ineligible for resentencing on his burglary convictions. The California Supreme Court

has resolved a split of authority on the issue of the eligibility for resentencing of an

inmate serving an indeterminate life sentence for several offenses, only some of which

are neither serious nor violent felonies. (Johnson, supra, 61 Cal.4th at p. 674.) The court

rejected the argument that “resentencing is allowed only if all of a prisoner’s current

offenses are neither serious nor violent . . . .” (Id. at p. 688.) It held that an inmate’s

eligibility for resentencing must be evaluated on a count-by-count basis (ibid.), and the

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.” (Id.

at p. 695.)

The People concede that defendant’s current convictions for second degree

commercial burglary are not defined as violent felonies by section 667.5, subdivision (c),

or as serious felonies by section 1192.7, subdivision (c). Because “the Act requires an

inmate’s eligibility for resentencing to be evaluated on a count-by-count basis” (Johnson,

supra, 61 Cal.4th at p. 688), defendant is entitled to a remand so the superior court can

determine whether defendant is otherwise eligible for resentencing and, if so, the court

can exercise its discretion to determine whether resentencing him on the burglary convictions only “would pose an unreasonable risk of danger to public safety”

(§ 1170.126, subd. (f)).

DISPOSITION

This matter is remanded to the superior court to determine whether, apart from the

two robbery convictions from 2000, defendant is eligible for resentencing on the burglary

convictions. If appellant is eligible for resentencing, the superior court will then exercise

its discretion under section 1170.126, subdivision (f)), to determine whether to resentence

defendant. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur:

McKINSTER J.

MILLER J.