Opinion
2d Crim. No. B298657
06-23-2020
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR NEVAREZ, Defendant and Appellant.
Richard B. Lennon, Executive Director under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5. (Super. Ct. No. 1176163)
(Santa Barbara County)
Arthur Nevarez appeals a May 3, 2019 order denying his Proposition 36 petition to recall a 2006 "Three Strikes" sentence. (Pen. Code, § 1170.126, subd. (b).) This case addresses one of the criteria for resentencing eligibility: the defendant must not have been "armed with a . . . deadly weapon, or intended to cause great bodily injury to another person" during "the commission of the current offense." (§ 1170.12, subd. (c)(2)(C)(iii).) The prosecution, in opposing the petition for resentencing, failed to prove, beyond a reasonable doubt, that appellant was armed with a deadly weapon or intended to inflict great bodily injury when he committed the offense of unlawful possession of ammunition (count 7; former § 12316, subd. (b)(1)). (People v. Frierson (2017) 4 Cal.5th 225, 230 (Frierson); People v. Perez (2018) 4 Cal.5th 1055, 1059 (Perez).) We, accordingly, reverse and remand for further proceedings. (§ 1170.126, subd. (f).)
All further statutory references are to the Penal Code. --------
Procedural History
In 2006, a jury convicted appellant of assault with a firearm (count 1; § 245, subd. (a)(2)), corporal injury to a spouse (count 2; § 273.5), dissuading a witness by force or threat (count 3; § 136.1, subd. (c)(1)), two counts of unlawful possession of a firearm by a felon (counts 4 & 8; § 12021, subd. (a)(1)), two counts of unlawful possession of ammunition (counts 5 & 7; § 12316, subd. (b)(1)), and attempted criminal threats (count 6; §§ 664/422). In the second phase of trial, the trial court found that appellant had suffered two serious felony convictions within the meaning of section 667, subdivision (a), that the prior convictions were strikes within the meaning of the California "Three Strikes" law (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(4)), and that appellant committed counts 1 through 5 while on bail (§ 12022.1, subd. (b)). Appellant was sentenced to 25 years to life on counts 1-5 plus 12 years on the enhancements. On count 7 (unlawful possession of ammunition) and count 8 (unlawful possession of a firearm by a felon), appellant was sentenced to consecutive 25-year-to-life terms. The total aggregate sentence was 87 years to life state prison. We affirmed the judgment in a nonpublished opinion. (People v. Nevarez (Nov. 27, 2007, B191255).)
First Petition for Resentencing
In 2012, appellant filed a Proposition 36 petition to recall the Three Strikes sentence on count 7 (unlawful possession of ammunition) and count 8 (possession of a firearm by a felon). The trial court found that appellant was not eligible for resentencing and denied the petition. We affirmed the order in a nonpublished opinion. (People v. Nevarez (Aug. 25, 2014, B252432).)
Second Petition for Resentencing
Based on a change in the law affecting the burden of proof (Frierson, supra, 4 Cal.5th at p. 230), appellant filed a new resentencing petition in 2019 alleging that the arming factor which elevated count 7 (a nonserious, nonviolent felony) to a Three Strike offense could not be proven beyond a reasonable doubt as required by Frierson. Being "armed" with a deadly weapon means having a firearm available for use, either offensively or defensively, when the offense was committed. (People v. Bland (1995) 10 Cal.4th 991, 997.)
The trial court considered the record on conviction and our opinion in the last appeal (B252432) which summarizes counts 6 and 7. Count 6 (attempted criminal threats) involved an incident where appellant pointed a handgun at his wife's forehead and threatened to kill his wife and her children. (Count 6.) The handgun discharged and shot a hole in the garage.
The wife called 911, left the house, got an emergency protective order, and told an officer that appellant said if she came back, "'You better come prepared because I am going to shoot you and anyone with you.'" Officers accompanied the wife back to the house, detained appellant, and found four rounds of .357 caliber ammunition in his pocket. (Count 7; unlawful possession of ammunition.) Appellant told the officers "'I didn't know they were there, I had forgotten about that.'"
The trial court found that appellant "is not statutorily eligible for resentencing" which we construe to be an implied finding that appellant was ineligible for resentencing because appellant was armed with a deadly weapon and/or intended to cause great bodily injury when the officers found him in possession of ammunition. Normally we apply a deferential substantial evidence standard of review, but where the facts are undisputed the issue of Proposition 36 resentencing eligibility is a question of law and subject to de novo review. (Perez, supra, 4 Cal.5th at p. 1068 (conc. opn. of Corrigan, J.); see, e.g., People v. McWhorter (2009) 47 Cal.4th 318, 346 [voluntariness of confession; facts surrounding giving of the statement undisputed]; People v. Aldridge (1984) 35 Cal.3d 473, 477 [facts bearing on legality of a detention undisputed; de novo review].)
Count 7 - Unlawful Possession of Ammunition
Count 7 (unlawful possession of ammunition) was committed hours after appellant threatened to kill his wife (count 6). But there was no evidence that appellant was still armed or intended to cause the wife great bodily harm when she returned to the house with the police. Officers found four shells in appellant's pocket, but there is no evidence that appellant possessed the ammunition hours earlier when the wife was assaulted, that appellant was wearing the same clothes, that he was in the same place (the garage) where the assault occurred, that a firearm was still in the house, or that appellant still intended to cause the wife great bodily harm when she returned to the house with the officers.
We reject the Attorney General's argument that the prosecution could "borrow" the count 6 arming and intent to inflict great bodily injury evidence to prove, beyond a reasonable doubt, that appellant was armed and intended to inflict great bodily harm when he committed count 7 hours later. The Attorney General argues that the Proposition 36 ineligibility factors can be inferred, but that is not proof beyond a reasonable doubt. (People v. Centeno (2014) 60 Cal.4th 659, 672 [prosecutor may not confound the concept of rejecting unreasonable inferences with the standard of proof beyond a reasonable doubt].)
Contrary inferences can be made from both the evidence and the sentence imposed. Counts 6 and 7 were based on the same operative facts but had separate and independent objectives or intents, which is why consecutive Three Strikes sentences were imposed. (§ 654 [criminal acts committed pursuant to independent objectives or intents can be punished separately]; People v. Danowski (1999) 74 Cal.App.4th 815, 823 [where the three strikes law does not mandate consecutive sentencing, section 654 applies to sentencing under the three strikes law]; see People v. Lawrence (2000) 24 Cal.4th 219, 233 [to warrant mandatory three strikes consecutive sentencing, the two crimes must take place on different occasions and arise from different facts].) "Proposition 36 permits a trial court to find a defendant was armed with a deadly weapon and . . . therefore ineligible for resentencing only if the prosecutor proves this basis for ineligibility beyond a reasonable doubt." (Perez, supra, 4 Cal.5th at p. 1059.) That was not established.
Disposition
The order denying the Proposition 36 petition for resentencing is reversed and the matter is remanded for further proceedings. (§ 1170.126, subd. (f); People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1291-1292.)
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
PERREN, J.
Timothy J. Staffel, Judge
Superior Court County of Santa Barbara
Richard B. Lennon, Executive Director under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.