Opinion
A143933
02-15-2018
THE PEOPLE, Plaintiff and Respondent, v. BRYAN E. MAZZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. R125195)
Appellant Bryan Mazza appeals from the trial court's denial of his petition for resentencing under Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36 or the Act). (Pen. Code, § 1170.126.) The court found Mazza was not eligible because his conviction for being a felon in possession of a firearm brought him within the provisions of section 1170.126, subdivision (e)(2), which makes defendants who were armed during the commission of their current offenses ineligible for resentencing under the Act. We reverse and remand for the trial court to consider whether Mazza is eligible for resentencing under the standards set forth in People v. Frierson (2017) 4 Cal.5th 225 (Frierson).)
All further statutory references are to the Penal Code, unless otherwise designated.
I. PROCEDURAL BACKGROUND
On May 10, 2006, the Napa County District Attorney charged Mazza by amended information with possession of a firearm by a felon in violation of former section 12021, subdivision (a)(1) (Count One), carrying a dirk or dagger in violation of former section 12020, subdivision (a) (see Stats. 2010, ch. 711, §§ 4, 6, No. 10 West's Cal. Legis. Service, pp. 4138, 4146, 4150, 4179) (Count Two), carrying a switchblade knife in violation of former section 653k (see Stats. 2010, ch. 711, §§ 2, 6, No. 10 West's Cal. Legis. Service, pp. 4138, 4146, 4180) (Count Three), and possession of methamphetamine, a controlled substance, in violation of Health and Safety Code section 11377, subdivision (a) (Count Four). The information also alleged Mazza had suffered two prior strike convictions within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)): a 1991 conviction for violation of section 212.5 (robbery) and a 1996 conviction for violation of section 245, subdivision (c), assault with a deadly weapon on a peace officer.
Former section 12021, subdivision (a)(1), which was repealed and reenacted without substantive change as section 29800, subdivision (a)(1), provided: "Any person who has been convicted of a felony . . . and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." (Stats. 2010, ch. 711, §§ 4, 6, No. 10 West's Cal. Legis. Service, pp. 4138, 4146, 4271.)
Mazza's trial began June 12, 2006. On June 16, 2006, the jury returned guilty verdicts on counts one, three, and four and acquitted Mazza on count two, the dirk or dagger count. Mazza admitted his two prior strike convictions.
On July 31, 2006, Mazza moved pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to dismiss his prior strike convictions for purposes of sentencing. On September 11, 2006, the court denied Mazza's motion and sentenced him to 25 years to life in state prison on count one (felon in possession of a firearm) and a concurrent term of 25 years to life in state prison on count four (possession of methamphetamine).
On November 8, 2007, we affirmed Mazza's convictions and sentence in an unpublished opinion (People v. Mazza (Nov. 8, 2007, A115237) [nonpub. opn.]).
In November 2012, California voters passed Proposition 36, the Three Strikes Reform Act. On September 29, 2014, Mazza filed a petition under the Act asking the trial court to recall his 2006 sentence of 25 years to life in state prison and resentence him to the reduced penalties available under the Act. The People opposed Mazza's petition. After hearing argument on December 17, 2014, the trial court denied Mazza's petition. Mazza filed a timely notice of appeal.
II. FACTUAL BACKGROUND
In our opinion affirming Mazza's convictions and sentence, we summarized the facts underling Mazza's convictions as follows:
"About 12:30 a.m. on October 15, 2005, Napa Police Officer John Metz was driving his patrol car on Jefferson Street near El Centro Avenue, when he noticed an unoccupied silver Pontiac Grand Am in an area where new homes were under construction. Because Metz was concerned, based on his 11 years of experience, about possible vandalism and thefts at construction sites, he drove to the car to run its license plate. He learned that the car was registered to a rental car agency.
"Metz got out of his car to investigate. The homes in the area were in the early stages of construction, and they lacked external walls. Boards were placed on the floors and entrances for construction workers to walk across. When Metz got out of his car, he could hear someone walking on the boards somewhere in the construction area.
"Other officers arrived and set up a perimeter. Metz and Police Officer Brian Bandy walked through the area, and Metz noticed a wet spot on the ground near the house closest to Jefferson Street where it appeared that someone had recently urinated. Within the house, Metz discovered a burgundy fanny pack on a stack of lumber. The pack was not dirty or discolored by paint or other substances. Inside the pack, Metz found a .22 revolver loaded with five live rounds and one expended casing. The pack also contained a box of shells.
"The pack was later found to contain a plastic bag holding 6.7 grams of methamphetamine. About 12:44 a.m., a police 'K-9' handler was called to the scene with his dog to track a scent from the fanny pack." (People v. Mazza, supra, A115237.) The dog eventually traced a scent from appellant's car to the area in the construction site where the fanny pack had been discovered. (Ibid.)
"Shortly after 2:00 a.m., another police officer saw someone dressed in dark clothing run across Jefferson Street and enter the same unfinished house where Metz had discovered the pack with the loaded revolver. The person turned on a flashlight and began training it on the floor of the house. A few minutes later, the officer lost sight of the person, who 'disappeared' into the construction site. Metz then saw the person [later identified as Mazza] emerge from behind the houses, walk to the back of the silver car, and approach the driver's door." (People v. Mazza, supra, A115237, fn. omitted.)
Mazza began to drive away in the Pontiac. The officers stopped the car and searched Mazza, finding an open switchblade knife, a second knife, and a set of pliers in his pockets. They arrested him and placed him into custody.
During trial, the People played an audio recording of a visiting room conversation later the day of Mazza's arrest between Mazza and Christine Cronin, described as his girlfriend. Mazza told Cronin that he had been arrested at Jefferson and El Centro where the houses were being built. Mazza said, "I took the gun and the drugs, and I hid 'em. I hid them. [¶] . . . [¶] They found it. [¶] . . . [¶] That was, that was where I was going, to get rid of it, but the, but they didn't find it on me." When Cronin asked Mazza whether they could link the drugs and gun to him, Mazza responded, "No. I, they haven't linked it to me yet, but I haven't heard anything. . . . But if they do, I'm washed up. . . . They didn't find it on me, though." Later in the conversation, Cronin asked Mazza whether he had any needles. Mazza responded, "Yup, that was in the bag along with the fucking gun, everything was in that bag, the drugs, the weed, everything was in that bag, I was going to take it somewhere, . . ."
III. DISCUSSION
Mazza argues he is entitled to remand for a new hearing on his petition to reduce his sentence because the trial court erroneously believed that Mazza's conviction for possessing a firearm as a felon categorically disqualified him from obtaining relief under Proposition 36. Mazza also argues we should depart from a consistent line of Court of Appeal decisions holding that one whose conviction was for being a felon in possession of a firearm is ineligible for Proposition 36 relief when the record of conviction shows the defendant was armed with a firearm; he urges us to hold that the disqualification for one who is armed in the commission of his current offense does not apply to firearms possession offenses. In the alternative, Mazza argues he was not disqualified because his firearms possession conviction was based on evidence of constructive possession, rather than actual or direct possession, and that, under the same case law, a felon who possessed a firearm only constructively is eligible for Proposition 36 relief.
E.g., People v. Frutoz (2017) 8 Cal.App.5th 171, 175-176; People v. Hicks (2014) 231 Cal.App.4th 275, 284 (Hicks); People v. Brimmer (2014) 230 Cal.App.4th 782, 797 (Brimmer); People v. Blakely (2014) 225 Cal.App.4th 1042, 1052, 1057 (Blakely); People v. Osuna (2014) 225 Cal.App.4th 1020, 1030, 1035 (Osuna), disapproved to the extent inconsistent with Frierson, supra, 4 Cal.5th at page 240, footnote 8; People v. White (2014) 223 Cal.App.4th 512, 519, 524 (White).
The People concede the trial court erroneously believed that any conviction for possessing a firearm as a felon automatically disqualified the defendant from relief. They urge us, nevertheless, to review the record of conviction, find by a preponderance of the evidence that Mazza actually was armed in the commission of his offenses, and affirm the denial of Mazza's petition.
A. Legal Standards
Under the original Three Strikes law, a defendant who was convicted of any felony, even if it was not a serious or violent felony, was subject to a sentence of at least 25 years to life in prison if the defendant had two or more prior convictions for serious or violent felonies. (Former § 667, subds. (d), (e)(2)(A), as amended by Stats. 1994, ch. 12, § 1, pp. 71-75; former § 1170.12, subds. (b), (c)(2)(A), added by Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994); People v. Estrada (2017) 3 Cal.5th 661, 666-667 (Estrada).)
Proposition 36 modified the Three Strikes law in two fundamental ways: First, it operates prospectively by restricting life sentences only to cases in which the current crime is a serious or violent felony or in which the prosecutor has pleaded and proved one of the enumerated qualifying factors. Second, it applies retrospectively to sentenced defendants by creating a postconviction resentencing procedure whereby an inmate serving a life sentence under the Three Strikes law for a crime that would no longer mandate a life sentence—and who is not otherwise disqualified—may petition to have his or her sentence recalled and be sentenced as a second strike offender, unless the trial court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126; Frierson, supra, 4 Cal.5th at pp. 230-231; Estrada, supra, 3 Cal.5th at p. 667; Brimmer, supra, 230 Cal.App.4th at pp. 791-792.)
Specifically, section 1170.126 provides that an inmate serving a third strike sentence may be eligible for resentencing if his or her current conviction is not for a serious felony (as defined in § 1192.7, subd. (c)) or a violent felony (as defined in § 667.5, subd. (c)), provided the inmate is not made ineligible by any of the enumerated disqualifying factors listed in section 1170.126, subdivision (e). Under this section, an inmate is statutorily ineligible for resentencing under the Act if, inter alia, "[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2); Frierson, supra, 4 Cal.5th at p. 231; Estrada, supra, 3 Cal.5th at pp. 667-669.) " ' "[A]rmed with a firearm" [or weapon] has been statutorily defined and judicially construed to mean having a firearm [or weapon] available for use, either offensively or defensively. [Citations.]' [Citation.] It is the availability of and ready access to the weapon that constitutes arming. [Citations.] In ruling on a petition for resentencing, the trial court may consider the entire record of conviction including the transcript of the trial testimony and the appellate opinion affirming the judgment of conviction." (People v. Cruz (2017) 15 Cal.App.5th 1105, 1109-1110 (Cruz).)
B. Analysis
Mazza was convicted of being a felon in possession of a firearm and possession of methamphetamine, both non-violent and non-serious felonies. The elements of possession of a firearm by a felon " 'are that a person, who has previously been convicted of a felony, had in his or her possession or under his or her custody or control any firearm.' (People v. Padilla (2002) 98 Cal.App.4th 127, 138.)" (Brimmer, supra, 230 Cal.App.4th at p. 795.) Although the crime of possession of a firearm by a felon can be committed by one who personally carries or is in actual physical possession of the firearm, it can also be committed by one who is only in constructive possession of the firearm. (Ibid.) " 'To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.' " (Ibid., quoting People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417.) "Hence, while the act of being armed with a firearm—that is, having ready access to a firearm [citation]—necessarily requires possession of the firearm, possession of a firearm does not necessarily require that the possessor be armed with it." (Brimmer, supra, at p. 795.)
As the People concede, the trial court erred in reading Hicks, supra, 231 Cal.App.4th at page 284 (at the prosecutor's urging) to hold that every conviction for being a felon in possession of a firearm is equivalent to being armed with a firearm, making the inmate automatically ineligible for resentencing. As every court to consider the issue has concluded, a felon who possesses a firearm is "armed" only if he or she has the firearm available for use, either offensively or defensively. (E.g., Cruz, supra, 15 Cal.App.5th at pp. 1109-1110; Hicks, supra, 231 Cal.App.4th at p. 284; Brimmer, supra, 230 Cal.App.4th at pp. 795-796; Blakely, supra, 225 Cal.App.4th at pp. 1052-1054; see People v. Conley (2016) 63 Cal.4th 646, 659, citing White, supra, 223 Cal.App.4th at p. 524 for this proposition.)
We decline Mazza's request that we depart from this consistent line of precedent and hold that the "armed" disqualifier in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) (and incorporated by § 1170.126, subd. (e)(2)) cannot apply to firearms possession charges. We agree with our colleagues from multiple courts of appeal that the plain language of the governing statutory provisions precludes such a limitation. (E.g., Hicks, supra, 231 Cal.App.4th at pp. 283-284; Brimmer, supra, 230 Cal.App.4th at pp. 797-799; Osuna, supra, 225 Cal.App.4th at pp. 1030-1032.)
Mazza argues the record of his conviction suggests his possession of a firearm in this case was merely constructive possession, so he was not "armed" for purposes of disqualification under section 1170.126, subdivision (e). The People, on the other hand, urge us to review Mazza's record of conviction and find that Mazza was in fact "armed," that is, that his post-arrest conversations in the jail provided sufficient evidence that Mazza actually possessed the firearm when he carried the pack containing the gun and drugs to the construction site to hide them.
After briefing was completed in this case, the California Supreme Court decided in Frierson that the prosecution bears the burden of proving beyond a reasonable doubt that a defendant otherwise eligible for resentencing under section 1170.126 is disqualified based on one of the factors listed in section 1170.126, subdivision (e). (Frierson, supra, 4 Cal.5th at pp. 235-236.)
We conclude the appropriate disposition is to remand to the trial court so it can in the first instance review the record of Mazza's conviction and make findings as to whether Mazza was armed for purposes of disqualification under section 1170.126, subdivision (e) when he possessed the firearm. (See Frierson, supra, 4 Cal.5th at p. 240 [Supreme Court remands case to the Court of Appeal with directions to return the case to the trial court for further proceedings on defendant's petition for resentencing]; People v. Cook (2017) 8 Cal.App.5th 309, 315-316 [case remanded to trial court to reconsider under the correct standards whether defendant's prior conviction was for one of the enumerated offenses that would disqualify him from Proposition 36 relief].) On remand, the trial court shall review the entire record of Mazza's conviction (see Estrada, supra, 3 Cal.5th at p. 670), including the trial testimony and exhibits and this court's opinion affirming Mazza's conviction, but not evidence outside the record. (See Cruz, supra, 15 Cal.App.5th at p. 1110; Cook, supra, 8 Cal.App.5th at pp. 315-316; Hicks, supra, 231 Cal.App.4th at p. 286; cf. Frierson, supra, 4 Cal.5th at p. 238, fn. 6 [Supreme Court declined to comment on what evidence the trial court may consider when making an eligibility determination under § 1170.126, subd. (e)(2)]; Estrada, supra, 3 Cal.5th at p. 676, fn. 7 [same].) The trial court shall determine whether the People can prove beyond a reasonable doubt (Frierson, supra, 4 Cal.5th at pp. 235-236) that Mazza was armed when he possessed the firearm underlying count one. If the trial court concludes the People have failed to meet this burden, then it must decide whether resentencing on that count would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f); Frierson, supra, 4 Cal.5th at pp. 238-239.)
We note that neither party has raised the issue whether appellant was armed when he possessed the methamphetamine for which he was convicted in count four. (See People v. Bland (1995) 10 Cal.4th 991, 997-1004.) Appellant is entitled to separate consideration of his eligibility for relief under Proposition 36 for each individual conviction. (People v. Johnson (2015) 61 Cal.4th 674, 690-691.)
IV. CONCLUSION
The order denying Mazza's petition for resentencing under Proposition 36 is reversed and the matter is remanded to the trial court for further proceedings consistent with Frierson and this opinion.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.