People v. Miranda, B308583

CourtCalifornia Court of Appeals
Writing for the CourtCOLLINS, J.
Decision Date24 August 2021
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JERRY MARTIN MIRANDA, Defendant and Appellant.
Docket NumberB308583

THE PEOPLE, Plaintiff and Respondent,
v.

JERRY MARTIN MIRANDA, Defendant and Appellant.

B308583

California Court of Appeals, Second District, Fourth Division

August 24, 2021


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. KA061835 William C. Ryan, Judge. Affirmed.

Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

COLLINS, J.

Introduction

Appellant Jerry Martin Miranda challenges the denial of his petition for recall and resentencing under Proposition 36, the Three Strikes Reform Act of 2012. (See Pen. Code, § 1170.126.[1]) Appellant's appointed counsel filed a brief on appeal raising no issues and invoking People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Appellant filed a supplemental brief, asserting that the court erred in denying his petition and challenging the circumstances of his guilty plea. We affirm.

Background

A. Prior proceedings

On May 8, 2003, police and parole officers conducted a parole search of appellant's apartment. Appellant was detained in the hallway inside the apartment. Appellant admitted he had drugs in his pants in the bedroom. Officers searched the bedroom and recovered cocaine and heroin from appellant's pants pocket. Officers also located a loaded handgun in the bedroom hidden between the mattress and box spring. A parole agent found a “hype kit” containing syringes in the kitchen. Appellant admitted to officers that the drugs were for his personal use, and that he kept the gun for protection.

Appellant pled guilty to one count of possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1), count 1), two counts of possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a), counts 2 and 3), and one count of possession of narcotics paraphernalia (Health & Saf. Code, § 11364, count 4). He also admitted that he had suffered four prior strike convictions (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and served three prior prison terms (§ 667.5, subdivision (b)). The court sentenced appellant to 25 years to life on count 2, a concurrent sentence of 25 years to life on count 3, and 60 days on count 4. The court stayed the sentence on count 1 under section 654. Appellant challenged his sentence on appeal, and this court affirmed. (People v. Miranda (Mar. 23, 2005, B171716) [nonpub.opn].)

In 2013, appellant petitioned for resentencing under Proposition 36, which allows certain inmates serving Three Strikes terms to petition for modification of their current sentences. The People opposed the petition, asserting that appellant's offenses did not qualify for resentencing based on the firearm disqualification provision: an offense does not qualify for resentencing if, during the commission of that 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).)

At the hearing on the petition, in which appellant was represented by counsel, it was undisputed that a loaded gun was located under a mattress in appellant's home while appellant was detained in a different room.[2] Health and Safety Code, section 11370.1 provides that “‘armed with' means having available for immediate offensive or defensive use.” Defense counsel argued the facts were insufficient to meet this definition; the People argued the definition was met. The trial court found that the gun was “readily available for offensive/defensive use”; therefore, appellant was armed with a firearm during the commission of the offenses and was ineligible for resentencing.

This court affirmed the ruling. (People v. Miranda (Jan. 8, 2016, B261306) [nonpub. opn.].) We noted that the “transcripts showed that during the search of his apartment, defendant admitted he had narcotics in his pants which were in his bedroom; upon recovering the narcotics from defendant's pants, police also found, within an arm's span of the pants, a loaded semi-automatic handgun hidden under a mattress.” (Ibid.) We stated, “Applying the temporal definition of the term ‘armed with a firearm' to the record of conviction in this case, we conclude there is substantial evidence to support the finding that defendant was armed with a firearm during the commission of the current offenses. We therefore conclude he is ineligible for resentencing under Proposition 36.” (Ibid.)

B. Current proceedings

In July 2019, appellant in propria persona filed a form petition for writ of habeas corpus, which also stated on the cover that it was seeking “recall of sentence” under section 1170.126. Appellant noted that his previous petition had been decided under a preponderance of the evidence standard. After that denial, the Supreme Court held that under Proposition 36 the People must establish a petitioner is ineligible for resentencing beyond a reasonable doubt. (People v. Frierson (2017) 4 Cal.5th 225, 230 (Frierson).) Appellant therefore requested that the court consider resentencing under the standard articulated in Frierson. Appellant also asserted that he was not armed when he was arrested, and his offenses were not serious or violent felonies. Appellant further contended that Proposition 36 was vague and failed to give notice as to the meaning of “armed.” In addition, he argued that in 2014 he sought a substitution of counsel, but the court never provided a Marsden hearing.[3] Appellant also asserted that the “Proposition 36 Court proceedings were a sham and a miscarriage of justice because he went through the process without an attorney.”

The court, referring to appellant's “petition for recall and resentencing pursuant to Penal Code section 1170.126, ” appointed counsel to address the Frierson issue on August 28, 2019. On March 20, 2020, appellant filed a document stating that he had attempted to discuss his case with his appointed counsel, but as of March 2020, appellant had not heard from counsel in more than six months. Appellant also argued that his counsel at the time of his guilty plea was ineffective, appellant never intended to plead guilty to being armed, and if his guilty plea was interfering with the resentencing, “I would like to take back my guilty plea because this reasoning of law was not explained to me.”

On May 18, 2020, the court set a resentencing eligibility hearing for August 31, 2020. Appellant, through his appointed counsel, filed supplemental briefing asserting that under Frierson, “the People must prove beyond a reasonable doubt that Petitioner Miranda was armed with a loaded and operable firearm....” Appellant stated that when he was arrested, he was “first observed by police officers walking naked down the hallway of his apartment.” Appellant acknowledged that a guilty plea may be interpreted to admit all elements of an offense, but argued, “The record is silent as to why Petitioner Miranda pled to the charges. We do not know if Petitioner Miranda was informed he was pleading to an armed with a firearm charge when he clearly was unclothed and was initially observed by police officers outside the room where the narcotics and weapon were found.” Appellant submitted a separate letter to the court, asserting in part, “No one explained to me all the different ways one can be considered to be armed, and now the prosecution is using this to deny my eligibility.”

At the hearing on August 31, 2020, defense counsel argued that appellant “wasn't armed with a firearm. He was, in fact, he was down the hallway.” The prosecutor argued that this case was similar to others in which a defendant was deemed armed when guns were found in a home, but not on the defendant's person. The prosecutor stated, “[Appellant] told the officers where the drugs were in his pants in the bedroom. The gun was recovered within an arm's length from where the drugs were[, ] hidden beneath the mattress. In addition, at a later point, he actually told one of the officers that he possessed that firearm for purposes of protection.”

The court took the matter under submission and issued a written ruling finding appellant ineligible for resentencing. The court noted the relevant legal standards and stated, “Here, a loaded handgun was found directly in petitioner's bedroom. It was...

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