Opinion
E055569
2013-04-26
The PEOPLE, Plaintiff and Respondent, v. Michael LEWIS, Defendant and Appellant.
See 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Introduction To Crimes, § 48. APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified; remanded for resentencing. (Super.Ct.No. FVI900076)
As Modified May 15, 2013
As Modified on Denial of Rehearing June 10, 2013
Review Granted August 14, 2013
Certified for Partial Publication.
This opinion is certified for partial publication, with the exception of section I.
Affirmed in part, reversed in part, and remanded with directions.
See 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Introduction To Crimes, § 48. APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified; remanded for resentencing. (Super.Ct.No. FVI900076) Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Tami Falkenstein Hennick, and Ifeolu E. Hassan, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from the sentence imposed on remand for resentencing following our opinion in People v. Lewis (Aug. 23, 2011, E051058, 2011 WL 3672058) (nonpub. opn.) ( Lewis I ).
During the pendency of this appeal, the California Supreme Court issued its opinion in People v. Jones (2012) 54 Cal.4th 350, 142 Cal.Rptr.3d 561, 278 P.3d 821 ( Jones ). Pursuant to that opinion, we conclude that Penal Code section 654
bars imposition of unstayed sentences on both count 1 and count 4, for possession of a firearm by a convicted felon and for receiving stolen property, consisting solely of the same firearm.
All statutory citations refer to the Penal Code unless another code is specified.
Also during the pendency of this appeal, the electorate amended the three strikes law by passing Proposition 36, the Three Strikes Reform Act of 2012, effective November 7, 2012. Defendant contends that the amendment to sections 667 and 1170.12, which would reduce his sentence from 25 years to life to a far lesser determinate term, applies to him under the doctrine of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ), i.e., that an amendatory statute which reduces punishment applies in all cases not yet final on appeal, unless there is a clear indication that the enacting body did not so intend. As we discuss below, we agree.
The cause is remanded. The superior court is directed to hold a resentencing hearing within 30 days after finality of this opinion. The superior court is directed to impose sentence pursuant to Penal Code sections 667(e)(2)(C) and 1170.12(c)(2)(C) and to stay imposition of sentence on either count 1 or count 4 pursuant to Penal Code section 654. The superior court is directed to issue an amended abstract of judgment reflecting the sentence as modified and to provide a copy of the amended abstract to the parties and to the Department of Corrections and Rehabilitation within 30 days after resentencing.
The judgment is otherwise affirmed.