People v. Moore CA4/2 ( 2016 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
DISCUSSION
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.