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Name: People v. Lynn
Case #: B260407
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 11/23/2015

Where at least one of a third strike defendant’s offenses is subject to Proposition 36 resentencing, the trial court should consider whether the nonviolent, nonserious offense should be reduced. In 1996 Lynn was convicted of second degree robbery (Pen. Code, § 211) and attempted grand theft from the person (Pen. Code, §§ 664, 487, subd. (c)). The court found four strike priors true and imposed a life sentence pursuant to the Three Strikes law. After the Three Strikes law was amended by Proposition 36 in 2012, Lynn petitioned for resentencing (Pen. Code, § 1170.126). The trial court found he was ineligible for resentencing based on his robbery conviction. Lynn appealed. Held: Reversed and remanded. In People v. Johnson (2015) 61 Cal.4th 674, the California Supreme Court recently held that a third strike defendant is eligible for resentencing under section 1170.126 on a current conviction that is neither serious nor violent, even though he has another current conviction that is serious or violent. The Johnson court “reasoned that historically, sentencing under the Three Strikes law has focused on the sentence to be imposed with respect to each count.” Nothing in the Proposition 36 ballot materials suggests an intent to employ a different approach with respect to section 1170.126 resentencing. Evaluating resentencing on a count-by-count basis promotes sentencing that fits the crime, effectuating the voters’ intent to protect public safety while making room in prison for more dangerous offenders. Although second degree robbery is a serious and violent felony, attempted grand theft is not (absent additional circumstances). The fact that Lynn was convicted of robbery does not make him ineligible as a matter of law for resentencing on the attempted grand theft count, unless the attempted grand theft itself qualified as a serious or violent felony.