DISCUSSION

Defendant argues he is eligible for resentencing with respect to any non-serious felony conviction even though he was also convicted of a serious felony during the same proceeding. Respondent disagrees, contending a serious or violent felony conviction precludes resentencing with respect to any felony conviction suffered in the same proceeding, even if the felony that was neither serious nor violent. Our Supreme Court decided this issue on July 2, 2015, holding “an 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.” (People

2 This was unnecessary as to count 3, which did not allege the enhancement.

3 v. Johnson (2015) 61 Cal.4th 674, 695.) Defendant is thus eligible, with certain exceptions, for resentencing on any non-serious felony count.3 Section 1192.7, subdivision (c), identifies several dozen “serious” felonies. Under that subdivision, any robbery and “any felony in which the defendant personally used a dangerous or deadly weapon” qualifies as a serious felony, but second degree burglary does not. (§ 1192.7, subd. (c)(1)(19) & (23); cf. id. at subd. (c)(1)(18) [first degree burglary is a serious felony].) A trial court ruling on a petition for recall of sentence must consult the entire record to determine whether a defendant was armed with a deadly weapon during a triggering offense. (People v. White (2014) 223 Cal.App.4th 512, 527.) Here, the prosecution expressly alleged defendant used a deadly weapon, i.e., a rock, during the commission of both the robbery and assault, and the jury found him guilty as charged. These offenses therefore qualify as serious felonies, making defendant ineligible for resentencing as to them. (Unarmed robbery also qualifies as serious.) As to count 1, however, second degree burglary, a nonserious felony, defendant is eligible for resentencing if he meets other requirements set forth in section 1170.126. Because the trial court did not reach the merits of defendant’s resentencing petition, the matter must be remanded for further consideration.

3 None of the counts upon which defendant was convicted qualifies as a violent felony. (See § 667.5, subd. (c).)

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DISPOSITION

The order denying defendant’s petition for recall of sentence is reversed as to the sentence for second degree burglary, and the trial court is directed to reconsider defendant’s petition as to that sentence. The order is otherwise affirmed.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

MOOR, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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