People v. Hicks, C073357

• Citation: 231 Cal.App.4th 275,179 Cal.Rptr.3d 703
• Decision Date: 06 November 2014
• Docket Number: C073357
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tyrea Kinte HICKS, Defendant and Appellant.

231 Cal.App.4th 275

179 Cal.Rptr.3d 703

The PEOPLE, Plaintiff and Respondent,

v.Tyrea Kinte HICKS, Defendant and Appellant.

C073357

Court of Appeal, Third District, California.

Filed November 6, 2014

Deanna Lamb, Sonora, 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, Eric L. Christoffersen and Ivan P. Marrs, Deputies Attorney General, for Plaintiff and Respondent.

ROBIE, J.

In 2008, a trial court sentenced defendant Tyrea Kinte Hicks to 25 years to life in prison under the three strikes law for being a felon in possession of a firearm and a concurrent sentence of 25 years to life (that was later stayed by this court) for being a felon in possession of ammunition, after a jury had found defendant guilty of those crimes.

In 2012, defendant filed a petition for resentencing under the Three Strikes Reform Act of 2012¹ (the Act). Under the Act, "prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction." ( People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286, 155 Cal.Rptr.3d 856.)

The Act makes "[a]n inmate ... eligible for resentencing" if, among other things, "[t]he 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." ( Pen. Code, § 1170.126, subd. (e)(2).) Sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) provide that, "[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."

Here, the trial court denied the petition. It found that based on the facts as recited in the appellate court opinion from defendant's 2008 three strikes' conviction, defendant was armed with a firearm when he committed the felon in possession of a firearm offense.

Defendant then filed a motion for reconsideration in the trial court, arguing it was error for the court to "restrict itself solely to a few limited facts" from the appellate opinion. He further argued that the arming enhancement had never been pled or proven with respect to the felon-in-possession charge and that he was not, in fact, armed, and pointed the court to evidence in the appellate court opinion that arguably showed he was not armed.

The trial court denied the motion for reconsideration. The trial court explained, among other things, that it had "examine[d] the record of conviction, which includes the Third District Court of Appeal opinion" and found that the opinion "beyond a reasonable doubt establishes that defendant was personally armed with the firearm he was convicted of possess[ing], in committing his offense of possessing the firearm." The court added that defendant did not "attach any portion of the trial transcript that show[ed] that the Third District inaccurately summarized the trial evidence...."

Defendant appeals from the denial of his resentencing petition contending: (1) it is an appealable order; (2) if it is not, his appeal should be treated as a petition for writ of mandate; and (3) the trial court improperly denied the petition for resentencing based on the fact that he was armed with a firearm during the commission of his felon-in-possession offense because (a) the felon-in-possession offense is not one of the disqualifying offenses to which an arming may be attached; (b) no sentence was "imposed" for his arming; and (c) the court improperly relied on the statement of facts in the appellate opinion to support its factual finding that he was armed.

In Teal v. Superior Court (2014) 60 Cal.4th 595, 179 Cal.Rptr.3d 365, 336 P.3d 686, 2014 WL 5739048, our Supreme Court concluded decisions under the Act are appealable orders. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying defendant's current sentence, as summarized by this court in its opinion in defendant's appeal from his conviction, were as follows:

"When parole agents and Sacramento police officers went to an apartment complex to look for ... a parolee at large, they saw defendant, his half brother Edward ... and friend Joseph ... by the front gate.... As the agents and officers approached, defendant took a clear plastic bag from his sweatpants and threw it away. Defendant was frisked and found in possession of five .380–caliber bullets. An officer then retrieved the bag and discovered it contained rock cocaine.

"The apartment complex manager told [the parole agent] and [the officer] that defendant and the two men with him were there to visit the resident in apartment 6. Going up to the apartment, officers found another baggie containing rock cocaine at the top of the stairs.

"The tenant in apartment 6 ... consented to a search of the apartment. Inside, officers found a backpack containing a black sweatshirt and a loaded .380 pistol.

"Valencia Brooks, who had been in apartment 6 ..., told [the officer] that defendant had brought the backpack into the apartment and set it down. At trial, Brooks denied making this statement, testifying instead that she did not know who brought the backpack into the apartment and did not even see defendant enter the apartment.

"Defendant's friend ... testified defendant's half brother, Edward, had the backpack all day and carried it into apartment 6.... But a prosecution investigator testified that ... [defendant's friend] told the investigator that the backpack belonged to defendant, who wore it during the day and then left it in [the tenant's] apartment the day it was seized by agents and officers....

"Defendant's half brother, Edward, testified ... [he] was wearing a hooded sweatshirt and carrying the backpack, gun, and bullets. As they approached the complex, Edward took off the sweatshirt and put it in his backpack. Defendant told Edward that some ammunition had dropped from the sweatshirt, but Edward continued into the apartment complex. When Edward entered [the tenant's] apartment, the sweatshirt and gun were inside the backpack, which he left in the apartment ... [I]t was defendant's friend ... who threw the plastic baggie....

"Defendant testified that, when the five bullets fell from his half brother's sweatshirt, defendant picked them up. He meant to return the bullets to Edward.... [T]he backpack with the gun belonged to Edward and that defendant never entered [the] apartment...." (People v. Hicks (Dec. 17, 2009, C060383) [nonpub. opn., pp. 2–4].)

DISCUSSION

IOverview of the Three Strikes Reform Act of 2012

"On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended sections 667 and 1170.12 and added section 1170.126.... 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.)

A defendant currently serving an indeterminate life sentence pursuant to the three strikes law is disqualified from resentencing if he or she has an enumerated disqualifying factor found in section 1170.126, subdivision (e). These disqualifying factors are: "(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the three strikes law] for a conviction of a felony or felonies that are ... serious and/or violent felonies [defined] by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7"; "(2) The inmate's current sentence was ... 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"; or "(3) The inmate has ... 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."

Even if a defendant satisfies the resentencing eligibility criteria and does not have an enumerated disqualifying factor, a defendant is still not entitled to resentencing under the Act if the trial court, "in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)

At issue here is the second enumerated disqualifying factor, namely, whether defendant's "current sentence was ... imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (...