Opinion
E058728
09-09-2014
THE PEOPLE, Plaintiff and Respondent, v. DAVID DAWSON, Defendant and Appellant.
Cindi B. Mishkin, 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, Eric A. Swenson and Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FSB06601) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Cindi B. Mishkin, 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, Eric A. Swenson and Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David Dawson, who is currently serving concurrent indeterminate sentences of 25 years to life, petitioned the superior court for recall of his sentence pursuant to Proposition 36, known as the Three Strikes Reform Act of 2012 (hereafter the Act or Reform Act). The trial court concluded defendant was ineligible for resentencing under Penal Code section 1170.126, subdivision (e)(1), because one of defendant's three strikes sentences is for a conviction of attempted robbery, which is a serious felony. (§§ 664, 211, 1192.7, subd. (c)(19) & (39).)
Unless otherwise indicated, all further undesignated statutory references are to the Penal Code.
On appeal, defendant contends he is eligible for resentencing on his three strikes sentence for the nonserious and nonviolent conviction of being a felon in possession of a firearm (former § 12021), notwithstanding his serious felony conviction of attempted robbery. The People argue that (1) defendant had no right to appeal the denial of his petition, so the appeal should be dismissed, (2) defendant's serious felony conviction of attempted robbery renders him entirely ineligible for resentencing under the Act, and (3) even if defendant's serious felony conviction does not render him ineligible for resentencing on his three strikes sentence for being a felon in possession of a firearm, he is nevertheless ineligible for recall and resentencing under section 1170.126, subdivision (e)(2), on his nonserious and nonviolent felony conviction of being a felon in possession of a firearm because he was armed with a firearm during the commission of that offense.
Even if the denial of defendant's petition is not appealable because we could treat this appeal as a petition for extraordinary relief, in the interest of judicial economy, we decline to dismiss the appeal. We need not decide whether a trial court may resentence a prisoner on nonserious and nonviolent felony convictions, notwithstanding the prisoner's serious and/or violent felony convictions for which he is ineligible for resentencing. We conclude defendant is ineligible for resentencing under the Act for his offense of being a felon in possession of a firearm because he was armed with a firearm at the time. We therefore affirm.
I.
FACTS AND PROCEDURAL BACKGROUND
In an information filed on February 9, 1995, the People alleged defendant committed one count of attempted robbery (§§ 664, 211, count 1), and one count of being a felon in possession of a firearm (former § 12021, subd. (a), count 4). The People alleged that defendant suffered two prior robbery convictions, which were serious and/or violent felony strikes within the meaning of section 667, subdivisions (b) through (i).
The relevant facts are brief. Two police officers responded to a report of an attempted robbery at a drugstore. When the first officer (Schultenrich) arrived at the store, he saw three men walk out the front door. A drugstore employee pointed the three men out to Schultenrich as the men quickly walked away. As the men were walking away, a second officer (Rodriguez) walked up to the store and saw that one of the men appeared to have a gun in his hand. Rodriguez told the men to the drop to the ground. One of the men complied, but the other two, including defendant, ran off. As Schultenrich walked in the direction he had seen the three men walking, he saw that two of them were now running back toward him. Schultenrich hid behind a pillar, and saw that defendant was running toward him while the other man ran in another direction. Schultenrich pulled his gun out and ordered defendant to get down on the ground. Defendant complied, and Schultenrich handcuffed him. When asked if he had any weapons on him, defendant told Schultenrich that he had a gun in his waistband. Schultenrich recovered a loaded .45-caliber handgun from defendant. The third man was apprehended by another officer. (People v. Dawson, supra, E019739.)
We take the facts of defendant's underlying conviction from the record in defendant's prior appeal, People v. Dawson (July 13, 1998, E019739) (nonpub. opn.), of which we take judicial notice. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
A jury found defendant guilty on both counts. After finding true the allegations that defendant suffered two prior strike convictions for serious or violent felonies, the trial court sentenced defendant under the three strikes law to an indeterminate term of 25 years to life for the attempted robbery conviction, with a concurrent sentence of 25 years to life for the conviction of being a felon in possession of a firearm. This court affirmed the judgment. (People v. Dawson, supra, E019739.)
On November 14, 2012, defendant, acting in propria persona, filed a petition in the superior court seeking recall of his sentence and resentencing under section 1170.126. Defendant's petition did not address the eligibility requirements under section 1170.126. Instead, he argued that at most he committed an attempted petty theft, and that his rehabilitation and serious medical condition made him eligible for resentencing. Defendant attached to his petition selected portions of the reporter's transcript from his trial which, he maintained, demonstrated he was not guilty of attempted robbery.
During a hearing conducted on April 26, 2013, the trial court noted that defendant was convicted of attempted robbery, "[a]nd that would be a serious felony, so he would not be eligible for resentencing under [section] 1170.126." The deputy public defender who appeared for defendant disagreed with the trial court and requested resentencing, but he submitted on the petition without further argument. The court denied the petition.
Defendant timely filed a notice of appeal.
II.
DISCUSSION
A.
APPEALABILITY
The People contend a prisoner may not appeal from the denial of a petition for recall of sentence and resentencing under section 1170.126, and request that we dismiss the appeal. According to the People, a prisoner who is disqualified from resentencing under the Act "has no statutory right to file a petition for recall of sentence pursuant to Penal Code section 1170.126 in the first instance," and a trial court has no authority under the Act to consider such a prisoner for resentencing. Therefore, the People contend the denial of such an improperly filed petition does not affect the prisoner's substantial rights and is not an appealable postjudgment order under section 1237, subdivision (b).
The issue of whether the denial of a petition for resentencing under section 1170.126 is an appealable postjudgment order is currently before the California Supreme Court. (Teal v. Superior Court, review granted July 31, 2013, S211708.) Even if we were to conclude such an order is not appealable, in the interests of judicial economy, we could treat this appeal as a petition for writ of habeas corpus or a petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal from a nonappealable order as a petition for writ of habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating appeal as a petition for writ of mandate due to uncertainty in the law about appealability].) Therefore, we review the merits of defendant's appeal.
B.
DEFENDANT IS INELIGIBLE FOR RESENTENCING
UNDER THE ACT BECAUSE HE WAS ARMED WITH A FIREARM
DURING THE COMMISSION OF HIS OFFENSE
The People contend a superior court hearing a petition under the Reform Act lacks authority to resentence a prisoner on nonserious and nonviolent felony convictions if the prisoner is also serving an indeterminate term of life for serious and/or violent felony convictions. (§ 1170.126, subd. (e)(1).) In other words, the People argue that resentencing under the Act is an all or nothing proposition. We need not decide this issue, which is pending before the California Supreme Court. (Braziel v. Superior Court, review granted July 30, 2014, S218503; People v. Machado, review granted July 30, 2014, S219819.) Instead, we agree with the People's alternative argument that defendant is ineligible for resentencing under section 1170.126, subdivision (e)(2), on his conviction of being a felon in possession of a firearm, because he was actually armed with a firearm during the commission of that offense. We also conclude facts that render a prisoner ineligible for resentencing under the Act need not be found true by a jury.
Because we do not address that issue, we deny the People's request that we take judicial notice of the official ballot pamphlet for Proposition 36.
"On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act), which amended Penal Code sections 667 and 1170.12 and added section 1170.126. [Citation.] Under the 'Three Strikes' law (§§ 667, subds. (b)-(i), 1170.12) as it existed prior to Proposition 36, a defendant convicted of two prior serious or violent felonies was subject as a third strike offender to a sentence of 25 years to life upon conviction of any third felony. [Citation.] Now, under the prospective provisions of the Reform Act (set forth in §§ 667, 1170.12), a defendant convicted of two prior serious or violent felonies is subject to the 25-year-to-life sentence only if the current third felony is a serious or violent felony. [Citation.] Thus, if the third felony is not a serious or violent felony and none of four enumerated disqualifying exceptions or exclusions applies, the defendant will be sentenced as a second strike offender. [Citation.]" (People v. White (2014) 223 Cal.App.4th 512, 517, fn. omitted (White).)
"Of particular importance here, the retrospective part of the Reform Act provides a means whereby, under three specified eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the Three Strikes law for a third felony conviction that was not a serious or violent felony may be eligible for resentencing as if he or she only had one prior serious or violent felony conviction. [Citations.]" (White, supra, 223 Cal.App.4th at p. 517.)
Any prisoner serving an indeterminate life sentence under the three strikes law may petition the superior court for recall of his or her sentence and for resentencing as a second strike offender. (§ 1170.126, subd. (b); see id., subd. (c) [prisoners serving a term of imprisonment for a second strike are ineligible].) The petition must specify all of the current felonies for which the prisoner is serving an indeterminate life sentence under the three strikes law, and must specify all prior convictions that were pleaded and proven under section 667, subdivision (d) and section 1170.12, subdivision (b). (§ 1170.126, subd. (d).) "An inmate is eligible for resentencing if: [¶] (1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. [¶] (2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. [¶] [and] (3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." (§ 1170.126, subd. (e).)
"Under the plain language of the armed-with-a-firearm exclusion, [defendant] is ineligible for resentencing relief as a second strike offender if his life sentence was 'imposed' because '[d]uring the commission of the current offense, [he] . . . was armed with a firearm. . . .' (§§ 667[, subd.] (e)(2)(C)(iii) & 1170.12[, subd.] (c)(2)(C)(iii) [both cross-referenced in § 1170.126[, subd.] (e)(2)].)" (White, supra, 223 Cal.App.4th at p. 523.)
In White, the prisoner was serving a three strikes sentence following his conviction of being a felon in possession of a firearm. (White, supra, 223 Cal.App.4th at p. 518.) The trial court denied the prisoner's petition for resentencing under the Act because he was armed with a firearm during the commission of his commitment offense. (Ibid.) The appellate court noted that the accusatory pleading did not allege the prisoner was "armed" when he committed the offense of being a felon in possession of a firearm, and the People did not plead a sentence enhancement based on the prisoner being armed with a firearm. (Id. at pp. 524-525.) However, the court concluded the record of the prisoner's underlying conviction established that he was, in fact, armed with a firearm, and that the People's theory of the case was not that defendant merely possessed a firearm, "but also that he was armed with the firearm during [the] commission of the current offense." (Id. at pp. 525-526.) Finally, the court concluded that finding the prisoner ineligible for resentencing based on evidence in the record that he was armed, but not based on such a finding by the trier of fact, "is consistent with the purposes of the Reform Act. . . . [T]he Reform Act is intended to provide resentencing relief to low-risk, nonviolent inmates serving life sentences for petty crimes, such as shoplifting and simple drug possession. [Citation.] [The prisoner]'s current offense of being a felon in possession of a firearm— when viewed in light of the fact that he was armed with the firearm during the commission of that offense—cannot be deemed a petty or minor crime for purposes of the Reform Act." (Id. at p. 526.)
The court in People v. Osuna (2014) 225 Cal.App.4th 1020 (Osuna) reached a similar conclusion. As in White, the prisoner in Osuna was serving a three strikes sentence after having been convicted of being a felon in possession of a firearm, but the People did not allege he was armed with a firearm at the time or allege a sentence enhancement based on being armed with a firearm. (Osuna, at p. 1027.) The trial court denied the prisoner's petition for resentencing, concluding he was ineligible because he was armed with a firearm during the commission of his offense. (Id. at p. 1028.) The appellate court concluded the record contained evidence that the prisoner "had a firearm available for offensive or defensive use" during the commission of his offense, because he "was actually holding a handgun." (Id. at p. 1030.) "Thus, factually he was 'armed with a firearm' within the meaning of the Act." (Ibid.)
Similarly, we conclude defendant was armed with a firearm during the commission of his offense of being a felon in possession of a firearm. "A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citations.] . . . '[A] firearm that is available for use as a weapon creates the very real danger it will be used.' [Citation.] Therefore, '[i]t is the availability—the ready access—of the weapon that constitutes arming.'" (People v. Bland (1995) 10 Cal.4th 991, 997, italics omitted.)
When Officer Schultenrich walked in the direction he had seen the three men walking away from the drugstore, he saw two of them running back toward him and he hid behind a pillar. Schultenrich pulled his gun out and ordered defendant to get down on the ground. After handcuffing defendant, Schultenrich asked defendant if he had any weapons on him. Defendant told Schultenrich that he had a gun in his waistband, and Schultenrich recovered a loaded .45-caliber handgun from defendant. (People v. Dawson, supra, E019739.) Therefore, the record of defendant's conviction amply demonstrates that he was armed with a firearm during the commission of his current offenses, so he is ineligible for resentencing under the Act. (§ 1170.126, subd. (e)(2).)
Defendant nonetheless contends he is eligible for resentencing because the fact that he was armed with a firearm was not found true by a jury beyond a reasonable doubt. The court in Osuna rejected that same argument, concluding "disqualifying factors need not be proven to a jury beyond a reasonable doubt where eligibility for resentencing under section 1170.126 is concerned." (Osuna, supra, 225 Cal.App.4th at p. 1038, fn. omitted.) First, under the plain language of section 1170.126, subdivision (f), the trial court, not a jury, must determine a prisoner's eligibility for resentencing. (Osuna, at p. 1038.) Second, relying on the reasoning from People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, the Osuna court concluded that "Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny do not apply to a determination of eligibility for resentencing under the Act." (Osuna, at p. 1039.) "A finding [that] an inmate is not eligible for resentencing under section 1170.126 does not increase or aggravate that individual's sentence; rather, it leaves him or her subject to the sentence originally imposed. The trial court's determination here that defendant was armed with a firearm during the commission of his current offense did not increase the penalty to which defendant was already subject, but instead disqualified defendant from an act of lenity on the part of the electorate to which defendant was not constitutionally entitled." (Id. at p. 1040.)
Defendant also argued this court should not rely on the probation report for the underlying facts of his conviction, as the People did in its brief. Because we have taken judicial notice of the record in defendant's prior appeal, ante at footnote 2, we need not rely on the probation report. To the extent the record from defendant's first appeal and our unpublished decision affirming the judgment are hearsay, we may consider reliable hearsay in the context of a petition for resentencing under the Reform Act. (People v. Guilford (2014) 228 Cal.App.4th 651, 659-661.)
We agree with Osuna. Because the disqualifying fact that defendant was armed with a firearm was not used to impose increased or aggravated punishment for his underlying crime, and the denial of his petition merely resulted in him serving the remainder of the properly imposed three strikes sentence he was already serving, we may properly consider that fact under section 1170.126 notwithstanding that a jury did not find it true beyond a reasonable doubt.
III.
DISPOSITION
The postjudgment order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur: RICHLI
J.
CODRINGTON
J.