Opinion
A153246
06-26-2020
In re SAIYEZ AHMED, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-171977-2)
Petitioner Saiyez Ahmed is currently serving a 25-years-to-life prison sentence after having been convicted by a jury in 1998 of false imprisonment (Pen. Code, § 236) and robbery (§§ 211/212.5). The life sentence was imposed by the trial judge on the false imprisonment count pursuant to the Three Strike sentencing statute in effect at the time. On the robbery count, there is a dispute between the parties as to whether the trial court sentenced Ahmed to a concurrent life term or a concurrent three-year term.
All further statutory references are to the Penal Code.
Petitioner seeks a recall of his life sentence and resentencing under the Three Strikes Reform Act (Reform Act), a measure adopted by the California electorate in 2012 to provide more lenient sentencing for third strike offenders convicted of felonies that are neither serious nor violent. The People oppose the petition, contending the petition is untimely and successive and that petitioner is ineligible for relief under the Reform Act. We disagree with both arguments. The People also argue that if petitioner were resentenced on the false imprisonment count, the court would be required to correct the sentence he has already served on the robbery count which is unlawful because the court did not state reasons for striking a prior on the record. Because this defect renders the sentence unlawful, we must remand the case to the trial court to make clear what sentence it intended on the robbery count and, if it was a determinate term, the basis for striking the priors for that charge.
Petitioner also seeks relief on other grounds, which we shall discuss below.
BACKGROUND
As we stated in our unpublished 2001 opinion on appellant's direct appeal, "[a]ppellants Saiyez Ahmed and Sam Henry Vaughn, Jr. were jointly tried for a series of offenses which began as a minor altercation with complete strangers and ended with a near-deadly bludgeoning of one of the victims with a shotgun." At the conclusion of their 1998 trial, after deliberating for two days, the jury convicted Vaughn of attempted voluntary manslaughter with personal use of a firearm and great bodily injury, second degree robbery, and false imprisonment and the trial court sentenced him to an aggregate term of 11 years and 6 months. Ahmed was acquitted of attempted murder and the lesser included offense of voluntary manslaughter. However, the jury convicted him of false imprisonment and robbery, and the court found he had suffered three prior serious felony convictions and, under the Three Strikes law, sentenced him to 25 years to life on the false imprisonment count and to a concurrent term, which we will discuss further, on the robbery count.
Petitioner filed a direct appeal, raising among other arguments a challenge to his Three Strikes sentence as cruel and unusual punishment under the state and federal constitutions. In a 2001 unpublished opinion, we rejected that challenge and affirmed Ahmed's conviction and sentence.
Eleven years later, the voters adopted Proposition 36, the Reform Act, sections 667.1, 1170.125-1170.126. Prior to the Reform Act, "the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third-strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent." (People v. Johnson (2015) 61 Cal.4th 674, 680 (Johnson).)
The Reform Act made the Three Strikes law less harsh in two respects. First, for defendants convicted after the Reform Act took effect in 2012, a defendant whose current conviction was for a felony that was neither serious nor violent, except in limited circumstances, would receive a second-strike sentence of twice the term otherwise provided for the current felony. (Johnson, supra, 61 Cal.4th at p. 681; §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) Second, the Reform Act "provides a procedure by which some prisoners already serving third-strike sentences may seek resentencing in accordance with the new sentencing rules. (§ 1170.126.) 'An inmate is eligible for resentencing if [¶] . . . [t]he inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or violent. . . .' (§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced under the new provisions, an inmate is disqualified from resentencing if any of the exceptions . . . are present. (§ 1170.126, subd. (e).) In contrast to the rules that apply to sentencing, however, the rules governing resentencing provide that an inmate will be denied recall of his or her sentence if 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subd. (f).)" (Johnson, supra, 61 Cal.4th at p. 682.)
The exceptions include current convictions of offenses involving specified quantities of controlled substances, certain sex offenses, or offenses in which the defendant used a firearm or was armed with a firearm or deadly weapon or intended to cause great bodily injury to another person. (§§ 667, subd. (e)(2)(C)(i)-(iii), 1170.12, subd. (c)(2)(C)(i)-(iii).) Other exceptions are for prior conviction of so-called "super strikes," which include specified sex offenses, homicide or attempted homicide offenses, solicitation of murder, assault with a machine gun on a peace officer or firefighter, possession of a weapon of mass destruction or any serious or violent felony punishable by life imprisonment or death. (Johnson, supra, 61 Cal.4th at pp. 681-682; §§ 667, subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv).)
After the Reform Act was enacted in 2012, Ahmed reached out to various lawyers and law offices seeking assistance with filing a resentencing petition under that Act. Specifically, he wrote letters to the Contra Costa Public Defender's Office, the Prison Law Office, the Three Strikes Justice Center and the attorney who represented him at trial. Initially, he received no response from any of the offices to which he had written. He continued to send letters to these offices requesting resentencing. In 2014, he was informed by the Three Strikes Justice Center that his conviction for second degree robbery rendered him ineligible for resentencing under the Reform Act. At some point, he also sought assistance from the Contra Costa County Superior Court, which forwarded his letter to the Public Defender. In 2017, he finally received a response from the public defender informing him that both the robbery and false imprisonment convictions rendered him ineligible.
Documents provided by Ahmed also indicate that he believed a misconception by the Board of Prison Terms that he was serving a concurrent life term for robbery under the Reform Act was preventing him from seeking relief under that law, and at some point he requested a correction of his CDCR records to reflect that he had been sentenced to a three year-term on that count and that he had already completed that term. Based on a review of his records by the CDCR's "Correctional Case Records Analyst," on October 12, 2017, the CDCR partially granted Ahmed's appeal in that matter, finding that he had been "sentenced on January 22, 1999, on Count 1, [Penal Code section] 236 False Imprisonment for 25 years to life, sentenced pursuant to [Penal Code section] 667[, subdivisions] (b)-(i) or [Penal Code section] 1170.12 (Three Strikes), Count 3 [Penal Code sections] 211-212.5[, subdivision] (c) Robbery for the middle term of 3 years to run concurrent with the sentence imposed on Count 1." The CDCR corrected its records to so reflect.
In the meanwhile, in 2016, Ahmed filed a habeas petition in this court asserting that his sentence was unconstitutional under People v. Vargas (2014) 59 Cal.4th 635 because, he contended, it was based on multiple strike convictions resulting from a single criminal act. We summarily denied that petition.
Also in 2016, the voters enacted Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). It amended the state constitution to provide for earlier parole consideration for inmates convicted of nonviolent felonies.
Finally, in October 2017, Ahmed filed a habeas petition on his own behalf in the Contra Costa County Superior Court seeking the relief he seeks here based on the Reform Act and Proposition 57. That court denied the petition in December 2017. In January 2018, petitioner filed the instant petition in this court.
After receiving Ahmed's petition, we requested a response from the People. After receiving the People's opposition to the petition, we appointed counsel to represent petitioner and permitted him to file a supplemental habeas corpus petition on Ahmed's behalf. We also ordered that the Warden of the State Prison in Los Angeles County show cause why the relief requested in the petition pursuant to Proposition 36, the Reform Act, should not be granted.
Counsel for Ahmed filed a supplemental petition, the People filed a return on behalf of the Warden and counsel for Ahmed filed a traverse to the return.
At the request of petitioner's counsel, we held oral argument on June 16, 2020, and following argument the petition was submitted.
DISCUSSION
I.
The Petition Is Timely.
The People contend we should reject the petition seeking relief under the Reform Act on the ground that the time to file a petition for relief under the Reform Act "has come and gone" and the petition is "successive" and "was inexplicably delayed." We disagree.
Under the Reform Act, a person serving an indeterminate prison sentence under the Three Strikes law that "would not have been an indeterminate life sentence" under the Reform Act because the current felony was not defined as serious or violent may file a petition "within two years after the effective date of the [Reform Act] or at a later date upon a showing of good cause, before the trial court that entered the judgment of conviction in his or her case, to request resentencing in accordance with the provisions of the [Three Strikes statutes] as . . . amended by the [Reform Act]." (§ 1170.126, subd. (b).) The Reform Act was enacted on November 6, 2012, and became effective the following day, which means the two-year period for seeking resentencing ended on November 7, 2014. Ahmed filed the habeas petition in the superior court in October 2017, almost three years after the expiration of the statutory two-year period.
We conclude Ahmed has shown good cause for this three-year delay. As we have discussed, over the period between the voters' enactment of the Reform Act and the filing of the habeas petition in the trial court, Ahmed wrote to three different law offices, one government office (the public defender) and two non-profit organizations. Receiving no response to his initial letters, he wrote again, only to be told by one in 2014 that he was ineligible and by another that he should contact his former trial counsel, which he did. Still receiving no helpful information, he then wrote directly to the superior court, which referred his letter to the public defender. In 2017, that office again told him he was ineligible.
There seems to have been considerable uncertainty among the criminal defense bar at the time about whether a prisoner who had been convicted of a nonviolent felony and a felony designated as serious or violent under the relevant statutes was entitled to relief under section 1170.126. That uncertainty should have been resolved in July 2015, when People v. Johnson, supra, 61 Cal.4th 674 was decided. In Johnson, our Supreme Court held that under the Reform Act, an inmate is entitled to resentencing with respect to a three-strikes sentence imposed for a felony count that is neither serious nor violent even if the inmate remains subject to a three-strikes sentence on another count. (Id. at p. 695.)
Despite this, the public defender misinformed Ahmed as late as September 2017 that both his false imprisonment and robbery offenses rendered him ineligible. This was incorrect in two and possibly three ways. First, false imprisonment is not and was not at any relevant time designated as a violent or serious felony that would render Ahmed ineligible for relief under the Reform Act. (See §§ 667.5, subd. (c), 1192.7, subd. (c).) Second, although robbery was designated a serious felony, Ahmed, as the People now acknowledge, was entitled to resentencing on the false imprisonment count regardless of his robbery conviction. (Johnson, supra, 61 Cal.4th at p. 695 ["we conclude 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"].) Third, while it is not clear what information the public defender had regarding Ahmed's sentencing, if Ahmed is correct that his sentence on the robbery count was a concurrent determinate term of three years, by 2017 he had long since served that sentence. Therefore, the robbery conviction could not have disqualified him from resentencing under section 1170.126. (See § 1170.126, subd. (a) ["The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to [the Three Strikes Act], whose sentence under this act would not have been an indeterminate life sentence," italics added].)
Given the combination of the uncertainty in the law and the fact that Ahmed made considerable efforts to obtain assistance with filing a resentencing petition only to be misadvised by those who responded to him, we find good cause exists for the delay in his seeking resentencing through his habeas corpus petitions.
In People v. Drew (2017) 16 Cal.App.5th 253, 258-260, the Fourth District held there was no good cause merely because of the uncertainty that existed prior to the decision in Johnson. The court based this holding in Drew on quite different circumstances. Unlike here, "there was no evidence [the petitioner] did anything to investigate potential relief" during the three and a half years between the effective date of the Reform Act and the date he filed his petition. (Id. at p. 260.)
II.
Remand Is Required to Allow the Trial Court to Correct the Minute
Order or Resentence Ahmed on the Robbery Count.
A trial court has discretion under section 1385 to strike or dismiss a prior strike or strikes for purposes of sentencing. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508, 531 (Romero).) And, as a leading treatise states, "In exercising its discretion to dismiss prior strikes under section 1385, the court may grant the motion as to some counts and deny the motion as to other counts. The court is not required to treat all current convictions with perfect symmetry, thus requiring the court to either grant or deny a motion to dismiss prior strikes as to every conviction in the current proceeding, when to do so would create an unjust sentence. The court is entitled to treat each count separately under the Three Strikes Law." (Couzens et al., Sentencing California Crimes (The Rutter Group 2019) § 20:52, pp. 20-126.)
Here, the trial court agreed with Ahmed's counsel at the hearing on post-trial motions and sentencing in 1999 that "the evidence going toward the robbery count was not particularly strong," that "the real issue was whether the intent had arisen prior to the taking" and that the court "felt that [the robbery count] was probably" "by far the weakest . . . of all of them," although it concluded the evidence was sufficient to go to the jury and denied Ahmed's motion for a new trial on that count. It denied the motion to strike the priors and sentenced Ahmed to a Three-Strikes life sentence on the false imprisonment count, but, apart from stating the sentence for the robbery count would run concurrently, did not state the sentence it was imposing for that count. As we will discuss, other documents indicate the court sentenced Ahmed to a three-year determinate term on the robbery count. Thus, it is not entirely clear whether the court exercised its discretion to strike the prior strike offenses in sentencing Ahmed to the determinate term on the robbery count. Ahmed contends it did, whereas the People's position is not entirely clear.
In his petition, Ahmed states that in 1999, he was sentenced to 25 years to life under California's Three Strikes law on the false imprisonment count and to a three-year concurrent term on the robbery count. Attached as Exhibit A to the petition is an abstract of judgment file-stamped on the date he was sentenced (January 22, 1999). The abstract reflects that on December 4, 1998, Ahmed was convicted of false imprisonment under section 236 as a "lesser offense" and was sentenced to 25 years to life with the possibility of parole on that count (count 1) under the Three Strikes law. It further reflects that he was convicted on the same date of second-degree robbery (section 212.5, subd. (c)) and received an unspecified "concurrent" sentence on that count. Included as part of the exhibit is a minute order bearing the same date (January 22, 1999),which states, "[t]he court sentences the defendant [Ahmed] to the Department of Corrections for a period of 25 years to life as follows: [¶] Count 1 : 25 years to life ([Pen. Code, §] 236, False Imprisonment, a felony) pursuant to the three strikes mandate [¶] Count 3 : Mid term of 3 years ([Pen. Code, §§] 211-212.5[, subd.] (c), Robbery, a felony) The sentence on Count Three shall run concurrent with the Sentence imposed on Count 1."
The jury did not convict Ahmed of the charge of kidnapping, but instead convicted him of the lesser included offense of false imprisonment.
In their informal opposition to the petition, the People contend Ahmed was serving two concurrent Three-Strikes life sentences, one for false imprisonment and one for robbery, and that because robbery is a serious felony he was not eligible for resentencing on that count under the Reform Act. The People also argue that a "non-three-strikes sentence on the robbery, a serious felony, was an unauthorized sentence, correctable at any time" and that it was corrected by the court in an amended abstract of judgment.
As counsel for Ahmed points out in Ahmed's supplemental petition, however, "the amended abstract of judgment did not purport to correct or make any change in Ahmed's sentence for robbery, but just added credits against his term." Ahmed's counsel also argues, "[r]ather than 'showing he is serving two concurrent three-strike sentences,' the amended [abstract of judgment] continued to reflect that the only three-strike sentence that Ahmed was serving was for his conviction for false imprisonment. When read together with the clerk's minutes of sentencing, if not also the sentencing transcript itself, both [abstracts of judgment] reflect that the concurrent sentence for robbery was a three-year term rather than a term of 25 years to life." CDCR records submitted by Ahmed reflect that CDCR's personnel (including its case records analyst) also understood the sentence on the robbery count was a three-year concurrent sentence.
As we have said, the transcript of the sentencing hearing, unlike the minutes, is ambiguous about the sentence imposed on Ahmed on the robbery count. The court discussed at some length the defense request that it strike two prior strike convictions, concluding by stating it did "not feel that it is appropriate with this history and with the sequence of events here" to strike the priors. It then stated it would "sentence Mr. Ahmed on the [section] 236 [false imprisonment] to 25 years to life pursuant to the three strikes mandate, and I will run the Count Three [robbery] concurrent." Nowhere does the transcript indicate what the term is for the robbery sentence or whether the sentence is determinate or indeterminate. Further, the court indicated that, as with the sentence it imposed on Ahmed's co-defendant, it "believe[d] that [section] 654 would apply to both counts that Mr. Ahmed was convicted of." However, as to Ahmed, rather than staying one sentence it made the sentences concurrent.
Notwithstanding the ambiguity in the transcript, the minutes, filed on the same day, are quite clear that the sentence on the robbery count is the "Mid term of 3 years" to run "concurrent with the Sentence imposed on Count 1 [false imprisonment]." However, the minutes do not state how the court decided on that term. Further, the minutes state, "the Court finds no justification in striking a strike based on defendant's prior criminal history." The abstracts of judgment indicate that the indeterminate sentence was imposed only on the false imprisonment count and not on the robbery count. The CDCR concluded, based on a review of Ahmed's sentencing records, that he had been sentenced to a three-year determinate term on the robbery count.
We note that the district attorney did not seek an aggregate sentence of 50 years to life for the two offenses, even though she argued such a term could be imposed if the court followed her recommendation not to strike any of Ahmed's strike convictions. Instead, she recommended a 25-years-to-life sentence. Whether she intended that the court exercise its discretion to sentence Ahmed concurrently on both counts or arrived at her recommended sentence in some other way is unclear. In any event, the record does not reflect that the district attorney objected to the court's imposition of the three-year concurrent term on the robbery count after the minute order setting forth the sentence was issued.
By contrast to their initial position that the trial court imposed two life sentences on Ahmed, the People's return to the supplemental petition implicitly concedes that the robbery sentence was a determinate sentence. The return does not deny Ahmed's allegation in the supplemental petition that the various sentencing-related records, read together, "reflect that the concurrent sentence for robbery was a three-year term rather than a term of 25 years to life." Rather, the return argues that in order to strike prior felony convictions so as to impose a non-three-strikes sentence on the robbery count, the trial court was required to set forth its reasons for striking prior strike offenses "in an order entered on the minutes"; it did not do so; and the determinate sentence was therefore "an unauthorized sentence, correctable at any time." Further, the return posits that if the trial court resentenced Ahmed on the false imprisonment count under the Reform Act, "the unassailable three strikes sentence on the robbery would necessarily be imposed in its stead."
The People's return is correct that at the time of sentencing, section 1385 required a court striking a prior strike conviction for purposes of sentencing to set forth its reasons for doing so in an order entered upon the minutes. (Romero, supra, 13 Cal.4th at p. 531; see Stats. 2000, ch. 689, § 3 [amending § 1385].) The minutes of the sentencing hearing do not contain such a statement of reasons. However, the return fails to provide any authority for the proposition that an unexplained non-three-strikes sentence is unauthorized for purposes of the general rule that unauthorized sentences may be corrected at any time. (See People v. Scott (1994) 9 Cal.4th 331, 354 [referring to "venerable notion that claims involving 'unauthorized,' 'void,' or 'excessive' sentences, and sentences entered in 'excess of jurisdiction,' can be raised at any time"].) Nor does the return provide authority indicating that rule applies even where, as here, the defendant long ago finished serving the non-three-strikes, determinate term.
The current iteration of section 1385 requires the court to set the reasons forth orally or, if there are no recorded oral proceedings and a party requests it, in a minute order. (§ 1385, subd. (a).)
Our own research indicates that failure to state reasons for striking priors in the minute order renders the sentence unauthorized.
If the trial court failed to exercise its discretion to strike prior convictions, the sentence is unauthorized. (See People v. Vizcarra (2015) 236 Cal.App.4th 422, 436 [failure to impose enhancement and double sentence under Three Strikes law or exercise discretion under § 1385 to strike the prior resulted in unauthorized sentence]; People v. Morales (2003) 106 Cal.App.4th 445, 454-456 [reversing where trial court failed to double terms for current offenses despite serious prior felony conviction or to exercise discretion to strike the prior conviction]; People v. Bradley (1998) 64 Cal.App.4th 386, 391 (Bradley) ["The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal"])
Moreover, where, as here, the record is ambiguous as to whether the trial court exercised its discretion to strike the priors for one of the counts because it failed to put its reasons for doing so in the minute order, the sentence is also unauthorized. In Bradley, the trial court did not expressly strike a prior prison term enhancement under section 1385 or former section 1170.1. Neither the oral pronouncement nor the minutes contained a statement of reasons as to why judicial leniency would be in the interests of justice. The court held "the absence of any statement in the minutes means no section 1385 subdivision (a) order striking the prior prison term enhancements was issued," and no on-the-record statement striking the enhancement meant no order striking it under former section 1170.1 occurred, either. (Bradley, supra, 64 Cal.App.4th at p. 392.) It further concluded that the failure to sentence on the enhancement was "legally unauthorized" and "that limited resentencing may be in order concerning the prior prison term enhancement." (Ibid.) The Bradley court cited Romero, in which our Supreme Court held an order that expressly struck an enhancement but only on an erroneous legal ground without setting forth the reasons for a discretionary dismissal was "ineffective" and remanded for the court to either exercise its discretion and state its reasons in compliance with section 1385, subdivision (a) or allow the defendant to withdraw his plea. (Romero, supra, 13 Cal.4th at p. 532; see also People v. Bonnetta (2009) 46 Cal.4th 143, 152-153 [ordering remand where trial court struck enhancements without stating reasons in minute order even though its reasons were stated orally on the record].) Because the trial court did not state in the minutes, as required by section 1385, subdivision (a), the reasons for sentencing Ahmed to a determinate term for the robbery count, including the factors that led to any exercise of discretion to strike the priors for the robbery count, the sentence is unauthorized and we must remand the case to the trial court for resentencing. Specifically, "the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason." (Bonnetta, at p. 153.)
III.
Ahmed Is Eligible to Petition for Resentencing on the
False Imprisonment Offense.
As we have already discussed, our Supreme Court in Johnson held that an inmate is entitled to resentencing with respect to a three-strikes sentence imposed for a felony that is not serious or violent even if he remains subject to a third-strike life sentence on another count. (See also People v. Lynn (2015) 242 Cal.App.4th 594.) The People acknowledge this holding and concedes that, regardless of the robbery conviction, Ahmed could have sought resentencing on the false imprisonment charge. They argue that even if Ahmed had done so, however, he "would have been found ineligible for reconsideration as a danger to public safety on the basis of his many prior serious and violent felony strikes, his lengthy criminal history, his poor performance on parole" and his "disciplinary history in prison."
As Ahmed's counsel points out in the traverse, the People are treating the potential for a denial of a request for resentencing with his eligibility for consideration for resentencing. Under section 1170.126, the criteria for resentencing are that the inmate is serving an indeterminate life sentence for conviction of a felony not defined as violent or serious and his current offense and prior offenses are not among the so-called super strikes. (§ 1170.126, subd. (e)(1)-(3).) But the resentencing provision entail a two-step process. "First, the trial court must determine whether an inmate is eligible for resentencing. And second, the trial court must evaluate whether resentencing an eligible inmate would pose an unreasonable risk of danger to the public." (People v. Jernigan (2014) 227 Cal.App.4th 1198, 1204.) "An inmate is eligible for resentencing if the inmate is serving an indeterminate life term imposed for a nonserious, nonviolent felony conviction; the inmate's current sentence was not imposed for any of the disqualifying offenses specified in section 1170.126, subdivision (e)(2); and the inmate has no prior convictions for any of the disqualifying offenses adverted to in section 1170.126, subdivision (e)(3). (§ 1170.126, subd. (e).) If the inmate is eligible, the trial court must resentence the inmate unless, in its discretion, the trial court determines resentencing the inmate would pose an unreasonable risk of danger to the public." (Ibid.)
The People do not contend that Ahmed's false imprisonment sentence is a serious or violent felony, that the sentence he is currently serving was imposed for any of the disqualifying offenses in section 1170.126, subdivision (e)(2), or that he has prior convictions for any of the disqualifying offenses in section 1170.126, subdivision (e)(3). Ahmed is eligible for resentencing on the false imprisonment count under the Reform Act as stated in Johnson, whether or not his determinate sentence on the robbery count is changed. He is entitled to resentencing on the false imprisonment count unless the trial court determines resentencing him "would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).) The latter is not an issue of eligibility but of the trial court's discretion. The People contend the trial court would not exercise its discretion to resentence Ahmed because of his prior criminal history and his prison record. These are factual issues we will not address in the first instance.
IV.
Ahmed's Other Claims
Ahmed raised an additional argument in his petition that he was entitled to early parole consideration under Proposition 57 (see Cal. Const., art. 1, § 32, subd. (a)(1) ["Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense"].) We did not issue an order to show cause on that issue. After we issued the order to show cause on Ahmed's Reform Act claim and appointed counsel, his counsel further briefed the Proposition 57 claim and raised an additional claim, i.e., that the trial court erred by applying the wrong legal standard when it denied Ahmed's new trial motion on the robbery count and it was ineffective assistance of counsel for his appellate counsel not to have raised that issue on appeal.
Subsequently, Ahmed's counsel informed us that the Proposition 57 claim had become moot because respondent had acceded to his claim and provided Ahmed with early parole consideration under Proposition 57. We therefore dismiss that part of Ahmed's petition as moot. Regarding Ahmed's claim of ineffective assistance of counsel, simultaneous with filing this opinion we will sever that claim for separate treatment and issue an order to show cause in that new case.
DISPOSITION
The petition for habeas corpus is granted in part. The case is remanded for the purpose of correction of the minutes or resentencing on the robbery count. We also direct that petitioner be permitted to apply and be considered for resentencing under the Reform Act.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.