People v. Valdez

• Decision Date: 20 April 2017
• Docket Number: C077882
• Citation: 217 Cal.Rptr.3d 437,10 Cal.App.5th 1338
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Emigdio VALDEZ, Defendant and Appellant.

10 Cal.App.5th 1338

217 Cal.Rptr.3d 437

The PEOPLE, Plaintiff and Respondent,

v.Emigdio VALDEZ, Defendant and Appellant.

C077882

Court of Appeal, Third District, California.

Filed April 20, 2017

Certified for Partial Publication.^*

Gregory R. Ellis, Retained Counsel for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini, Jaime A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

In 2001, defendant was convicted of possession of a sharp instrument in prison (Pen. Code, § 4502, subd. (a) )¹ and assault by an inmate by means likely to cause great bodily injury (§ 4501). The trial court found true three prior strike allegations. (§§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to consecutive terms of 25 years to life on each count. In an unpublished opinion, this court affirmed the judgment. (People v. Valdez (May 13, 2003, C038924) [nonpub. opn.] slip opn. at pp. 1-11, 2003 WL 21061351 (Slip Opn. ).)

Defendant appeals from the trial court's denial of his petition for recall of sentence under the Three Strikes Reform Act of 2012 (enacted by Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); §§ 667, 1170.12, 1170.126 (Proposition 36 or the Act)). As to each conviction, defendant asserts that: (1) the trial court was not authorized to make findings of fact and the People were required to plead and prove any disqualifying facts in the prosecution of his commitment offense; (2) substantial evidence did not support the trial court's determinations regarding his ineligibility; and (3) the trial court employed the wrong standard of proof, in that it should have applied the "clear and convincing evidence" standard rather than the "preponderance of the evidence" standard. Defendant also asserts that, if we conclude that he is eligible for resentencing on one conviction but ineligible on the other, he should be resentenced on the eligible offense.

In the published part of this opinion we conclude there was substantial evidence supporting the trial court's determination that defendant was "armed" with the sharp instrument in prison. Defendant had the weapon available for use while he possessed it in his cell and the fact that the weapon was seized from his cell by correctional officers while defendant was away taking a shower does not make defendant eligible for resentencing under Proposition 36. Possession of a weapon can be a continuing offense. Consequently, a person is armed with a weapon for purposes of the Proposition 36 resentencing exception if the evidence from the record of conviction establishes that he or she was present with the weapon and had it available for use at any time he or she had actual or constructive possession of it within the time period for which the defendant was charged and convicted.

In the unpublished parts of this opinion, we discuss and reject defendant's other contentions.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Current Convictions²

Possession of a Sharp Instrument in Prison (§ 4502 )

"In December 1998, Correctional Officer Kevin Keene was working as a floor officer in the administrative segregation section of ‘six block’ of the California State Prison, Sacramento. While defendant and codefendant Jose Alberto Dubon were away taking showers, Keene conducted a routine search of their cell. The cell had two bunks and a toilet on the right-hand side and upper and lower cubicles on the left-hand side.

"In the upper cubicle, Keene found a long stiff straight object wrapped in plastic. When he unwrapped it, Keene saw that the object was an ‘altered toothbrush with razor melted’ into the handle, ‘with cardboard cover piece, ... two pieces of clear cellophane plastic.’ Keene confiscated the object, put it into evidence, and notified the sergeant of his discovery. No inmates other than defendant and Dubon would have been allowed in their cell.

"Keene testified that inmates in administrative segregation are not allowed to have disposable razors or sharp metal objects. Inmates in the general population are allowed to have razors but are not allowed to alter them or remove them from their plastic casings.... Keene was not sure which inmate ordinarily used the upper cubicle." (Slip Opn., supra , at pp. 2-3, fn. omitted.) We set forth additional facts regarding this offense in our discussion, post .

Assault by Inmate by Means Likely to Cause Great Bodily Injury (§ 4501)

"Several months after the incident in count three, defendant, Dubon, and two other inmates were seen assaulting a newer inmate. Defendant struck the victim from the back at about the same time that Dubon struck him in the front. Defendant and Dubon kicked the victim with ‘full force kicks.’ Both men ignored Correctional Officer Ernest Johnson's order to stop fighting and were undeterred when he fired a special gun that shot rubber grommets. When Johnson resorted to tear gas, the inmates dispersed. At that point, the victim was on the ground and was not moving. He later regained consciousness and tried to stand but fell down a couple of times. He suffered multiple injuries to his face and head, including a large hematoma

to his right forehead, an open contusion on his right forehead, a bloody nose, multiple bruising to his upper face, blood in his mouth, a shoe imprint on the left side of his face, and abrasions on both knees and elbows." (Slip Opn., supra , at pp. 3-4.)

Petition for Resentencing

In 2014, defendant filed a petition for recall of his sentence pursuant to section 1170.126 which is part of the Act. Defendant asserted that, under section 1170.126, subdivision (e)(1), his convictions of possession of a sharp instrument while in prison (§ 4502, subd. (a) ) and assault by a prisoner by means of force likely to produce great bodily injury (§ 4501) were neither serious felonies within the meaning of section 1192.7, nor violent felonies within the meaning of section 667.5, and therefore these convictions did not render him ineligible for resentencing under the Act. Defendant also asserted that, in violating sections 4501 and 4502, subdivision (a), he was not armed with a firearm or deadly weapon, did not use a firearm or deadly weapon, and he did not intend to cause great bodily injury to another person within the meaning of section 667, subdivision (e)(2)(C)(iii), and therefore he was not ineligible for resentencing under the Act. (§ 1170.126, subd. (e)(2).) Defendant further asserted that these convictions did not otherwise render him ineligible for relief. Thus, according to defendant, he satisfied all of the criteria for resentencing under the Act, and requested that the trial court resentence him as a second strike offender.

Trial Court's Denial of Petition

The trial court rejected each of defendant's contentions and denied the petition. We discuss post the court's factual findings concerning each conviction and its determination of resentencing ineligibility based on those findings.

The trial court also rejected defendant's contention that, if it were to make findings of fact relevant to issues, it would violate the mandate of Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 that findings of fact that may result in an increase in punishment must be made by a jury beyond a reasonable doubt. The court ruled that Apprendi does not apply to section 1170.126 resentencing proceedings because resentencing pursuant to that section would constitute a downward departure from a previously imposed sentence, and there is no requirement that disqualifying factors must have previously been pleaded and proved to a jury beyond a reasonable doubt.

The trial court also ruled that its conclusion as to either conviction rendered defendant ineligible for resentencing under the Act. In this regard, the trial court followed those cases which had concluded that a defendant is ineligible for resentencing under the Act if any of the defendant's current convictions render him or her ineligible, although the court noted that the issue was pending before our high court at the time.³

Accordingly, the trial court denied defendant's petition for resentencing.

DISCUSSION

I. The Act

"Prior to its amendment by the Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. [Citations.] The Act amended the Three Strikes law with respect to defendants whose current conviction is for a felony that is neither serious nor violent. In that circumstance, unless an exception applies, the defendant is to receive a second strike sentence of twice the term otherwise provided for the current felony, pursuant to the provisions that apply when a defendant has one prior conviction for a serious or violent felony." (Johnson, supra , 61 Cal.4th at pp. 680-681, 189 Cal.Rptr.3d 794, 352 P.3d 366.)

"The Act's exceptions to the new sentencing provisions relate to a defendant's current offense and prior offenses." (Johnson, supra , 61 Cal.4th at p. 681, 189 Cal.Rptr.3d 794, 352 P.3d 366.) These exceptions are set forth in sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C). (Johnson , at p. 681, 189 Cal.Rptr.3d 794, 352 P.3d 366.)

The Act addressed both prospective sentencing and retrospective resentencing. This case involves retrospective resentencing. "In addition to reducing the sentence to be imposed for some third strike felonies that are neither violent nor serious, the Act provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules. [Citation.] ‘An inmate is eligible for resentencing if.... [¶] ... [t]he inmate is...