People v. Blakely, F067590

CourtCalifornia Court of Appeals
Writing for the CourtDETJEN
Citation171 Cal.Rptr.3d 70,225 Cal.App.4th 1042
PartiesThe PEOPLE, Plaintiff and Respondent, v. Lewis Vernard BLAKELY, Defendant and Appellant.
Decision Date24 April 2014
Docket NumberF067590

225 Cal.App.4th 1042
171 Cal.Rptr.3d 70

The PEOPLE, Plaintiff and Respondent,
v.
Lewis Vernard BLAKELY, Defendant and Appellant.

F067590

Court of Appeal,
Fifth District, California.

Filed April 24, 2014
Certified for Partial Publication.
*



See 3 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Punishment, § 421B.

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. (Super.Ct. No. BF106973A)

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

[225 Cal.App.4th 1048]


INTRODUCTION

“On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act [or Proposition 36] ).1 The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. ( §§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” ( People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168, 151 Cal.Rptr.3d 901.)

After the Act went into effect, Lewis Vernard Blakely (defendant), an inmate serving a term of 25 years to life in prison following conviction of a felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for recall of sentence, seeking resentencing under the Act. The trial court ultimately determined defendant did not qualify (was ineligible) for resentencing and denied the petition. Defendant now appeals.

In the published portion of this opinion, we hold that a person convicted of being a felon in possession of a firearm is not automatically disqualified from resentencing by virtue of that conviction; such a person is disqualified only if he or she had the firearm available for offensive or defensive use. We also hold disqualifying factors need not be pled and proved to a trier of fact beyond a reasonable doubt; hence, a trial court determining whether an inmate is eligible for resentencing under section 1170.126 may examine relevant, reliable, admissible portions of the record of conviction to determine

[225 Cal.App.4th 1049]

the existence of a disqualifying factor. Because, as we discuss in the unpublished portion of our opinion, we cannot determine whether the trial court based its finding of ineligibility on reliable and admissible portions of the record of conviction, we reverse the finding of ineligibility and remand for further proceedings. In the unpublished portion, we also hold that a trial court's order finding a defendant not eligible for resentencing is appealable.

FACTS AND PROCEDURAL HISTORY2

Early on June 4, 2004, defendant and a friend, Charles Williams, met Joyce Jones and Marquita Moore at a bar. Some time later, they all went to Moore's apartment. Once there, defendant and Jones stayed in the living room, while Moore and Williams went into the bedroom.

While defendant and Jones were sitting in the living room, Moore's live-in boyfriend, Kenneth Cannon, came home unexpectedly, broke into the bedroom, and discovered Moore and Williams engaged in sexual intercourse. Cannon punched and kicked Moore, then left the bedroom and retrieved a semiautomatic pistol from under a couch in the living room. Seeing that Cannon was armed, defendant removed a revolver from his own pocket and exchanged gunfire with Cannon. Defendant and Jones sustained gunshot injuries, and Cannon was fatally wounded. After firing every bullet from his weapon, defendant fled the scene. He subsequently told police he carried the revolver for protection, because while he was in prison, he testified against some people who were now on the streets. He said he also had the gun because he was on the east side and in enemy territory.

Defendant was charged with possessing cocaine base for sale (Health & Saf.Code, § 11351.5; count 1), being a felon in possession of a firearm (former § 12021, subd. (a)(1), see now § 29800, subd. (a)(1); count 2), and possessing cocaine base while armed with a loaded firearm (Health & Saf.Code, § 11370.1, subd. (a); count 3).3 It was further alleged as to all three counts that defendant was acting for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and, as to count 1, that he was personally armed with a firearm

[225 Cal.App.4th 1050]

(§ 12022, subd. (c)). Finally, as to each count, it was alleged defendant had suffered two prior “strike” convictions and had served a prior prison term.

On the day trial was set to begin, the court granted the prosecutor's motion to dismiss counts 1 and 3, and the gang enhancements. As part of a “slow plea,” defendant waived his right to a jury trial on count 2, stipulated to the existence of the strike priors, and stipulated that, on June 4, 2004, he had in his possession a handgun, a Smith and Wesson six-shot “long Colt” revolver. Based on those stipulations, the court found defendant guilty of count 2, and found true the strike prior and prior prison term allegations. On January 5, 2005, defendant was sentenced to a total unstayed term of 25 years to life in prison.

On December 6, 2012, defendant petitioned the trial court for a recall of sentence pursuant to section 1170.126. In pertinent part, he asserted he was statutorily eligible for resentencing under the Act because: (1) The fact he was convicted of violating section 12021 did not automatically mean he was armed with a firearm because simple possession of a firearm is not the same as being armed with a firearm; (2) The drafters of the Act did not intend for a section 12021 violation to make otherwise eligible defendants ineligible for relief; (3) The prosecution did not plead and prove defendant used or was armed with a firearm during the commission of his current offense; and (4) There was no factual record to support a finding of firearm use or arming during the commission of the current offense, since defendant stipulated only to possession of a firearm and it would be improper for the court to rely on the underlying facts of the case.

The People opposed the petition on the ground defendant was ineligible for resentencing pursuant to section 667, subdivision (e)(2)(C)(iii). The People argued: (1) “[A]rmed with a firearm,” as used in the Act, is not limited to the meaning of that term as used in section 12022; (2) Even if section 12022's definition of “armed” applied to the Act, defendant's conviction for violating section 12021 would meet the definition; (3) The rules of Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi ) and its progeny do not apply to resentencing under the Act; (4) The trial court was not limited to a consideration of the trial stipulation, but could review the record of conviction to determine eligibility; and (5) The facts shown by the record of conviction demonstrated defendant was “armed with a firearm” during commission of his current offense.

On March 6, 2013, a hearing was held on defendant's petition. After argument, the trial court acknowledged that one convicted of being a felon in

[225 Cal.App.4th 1051]

possession of a firearm was not necessarily armed. Because it was not pled and proved that defendant was armed with a firearm in commission of his current offense, the court found him “technically eligible to be considered for resentencing under Proposition 36.”

On June 25, 2013, the People moved for reconsideration based on People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279, 155 Cal.Rptr.3d 856 (Kaulick ), which was decided after the trial court's ruling. Defendant opposed the motion. On June 27, 2013, at the conclusion of argument on the issue, the court reiterated that a violation of section 12021 did not automatically render an individual ineligible for resentencing under the Act. The court found that the voters did not intend to have people resentenced who were a danger to society by virtue of the use of firearms or being armed with firearms; hence, the court logically could look at the overall facts and circumstances of the case to determine eligibility for resentencing. The court concluded that, because defendant was armed with and used a firearm, he was disqualified from resentencing.

DISCUSSION
I. The trial court's ruling is appealable.**II. Defendant was not automatically disqualified from resentencing by his current conviction for being a felon in possession of a firearm.

Insofar as is pertinent to this appeal, in order for an inmate to be eligible for resentencing under the Act, his or her current sentence cannot have been “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.”...

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333 practice notes
  • People v. Crockett, C074342
    • United States
    • California Court of Appeals
    • 19 Febrero 2015
    ...v. United States (2010) 560 U.S. 817, 828–829, 130 S.Ct. 2683, 2692–2693, 177 L.Ed.2d 271, 284–286 ; cf. People v. Blakely (2014) 225 Cal.App.4th 1042, 1060, 171 Cal.Rptr.3d 70 [determination of eligibility]; People v. Osuna (2014) 225 Cal.App.4th 1020, 1039–1040, 171 Cal.Rptr.3d 55 [same; ......
  • People v. Florez, H040327
    • United States
    • California Court of Appeals
    • 14 Marzo 2016
    ...and proper." (Id. at p. 378, 14 Cal.Rptr.3d 880, 92 P.3d 369.)As the Fifth Appellate District explained in People v. Blakely (2014) 225 Cal.App.4th 1042, 171 Cal.Rptr.3d 70(Blakely ), "[t]he purpose of the three strikes law has been variously stated as being ' "to ensure longer prison sente......
  • People v. Bradford, C073339
    • United States
    • California Court of Appeals
    • 15 Julio 2014
    ...Court of Appeal decisions that are not yet final likewise reject a plead-and-prove requirement. (See, e.g., People v. Blakely (2014) 225 Cal.App.4th 1042, 171 Cal.Rptr.3d 70.) Finally, this construction of the statute is logical since the prosecutor lacked the incentive to plead and prove t......
  • People v. Buford, F069936
    • United States
    • California Court of Appeals
    • 27 Octubre 2016
    ...and such factor need not be established by proof beyond a reasonable doubt to a jury.” (Ibid . )In People v. Blakely (2014) 225 Cal.App.4th 1042, 1059–1062, 171 Cal.Rptr.3d 70 (Blakely ), we rejected the claim an inmate seeking resentencing pursuant to section 1170.126 had a Sixth Amendment......
  • Request a trial to view additional results
333 cases
  • People v. Crockett, C074342
    • United States
    • California Court of Appeals
    • 19 Febrero 2015
    ...v. United States (2010) 560 U.S. 817, 828–829, 130 S.Ct. 2683, 2692–2693, 177 L.Ed.2d 271, 284–286 ; cf. People v. Blakely (2014) 225 Cal.App.4th 1042, 1060, 171 Cal.Rptr.3d 70 [determination of eligibility]; People v. Osuna (2014) 225 Cal.App.4th 1020, 1039–1040, 171 Cal.Rptr.3d 55 [same; ......
  • People v. Florez, H040327
    • United States
    • California Court of Appeals
    • 14 Marzo 2016
    ...and proper." (Id. at p. 378, 14 Cal.Rptr.3d 880, 92 P.3d 369.)As the Fifth Appellate District explained in People v. Blakely (2014) 225 Cal.App.4th 1042, 171 Cal.Rptr.3d 70(Blakely ), "[t]he purpose of the three strikes law has been variously stated as being ' "to ensure longer prison sente......
  • People v. Bradford, C073339
    • United States
    • California Court of Appeals
    • 15 Julio 2014
    ...Court of Appeal decisions that are not yet final likewise reject a plead-and-prove requirement. (See, e.g., People v. Blakely (2014) 225 Cal.App.4th 1042, 171 Cal.Rptr.3d 70.) Finally, this construction of the statute is logical since the prosecutor lacked the incentive to plead and prove t......
  • People v. Buford, F069936
    • United States
    • California Court of Appeals
    • 27 Octubre 2016
    ...and such factor need not be established by proof beyond a reasonable doubt to a jury.” (Ibid . )In People v. Blakely (2014) 225 Cal.App.4th 1042, 1059–1062, 171 Cal.Rptr.3d 70 (Blakely ), we rejected the claim an inmate seeking resentencing pursuant to section 1170.126 had a Sixth Amendment......
  • Request a trial to view additional results

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