People v. Wilson CA2/7

INTRODUCTION

Kenneth Roy Wilson, serving a three strikes, indeterminate sentence of 56 years to life, petitioned pursuant to Penal Code section 1170.126,1 part of the Three Strikes Reform Act (Proposition 36), for recall of his sentence and resentencing as a second strike offender. The trial court denied the petition on the ground Wilson was ineligible for resentencing because one of the commitment offenses, assault by means of force likely to produce great bodily injury and with a deadly weapon (former § 245, subd. (a)(1)), is a serious felony. (See § 1170.126, subd. (e)(2).) We conclude Wilson was eligible for resentencing and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Wilson lived with his girlfriend Belinda P., a child they had together, and Belinda P.’s four children. Wilson came home intoxicated, and he and Belinda P. had a verbal altercation that escalated into a shoving match in the living room. Wilson, a large man, scratched Belinda P.’s face with his fingernails and pushed her into a glass table, which shattered. Wilson then threatened to kill Belinda P. and retrieved a knife from the kitchen before returning to the living room. When Wilson began walking with the…