People v. White

• Decision Date: 30 April 2014
• Docket Number: D063369
• Citation: 223 Cal.App.4th 512,167 Cal.Rptr.3d 328
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark Anthony WHITE, Defendant and Appellant.

223 Cal.App.4th 512

167 Cal.Rptr.3d 328

The PEOPLE, Plaintiff and Respondent,

v.Mark Anthony WHITE, Defendant and Appellant.

D063369

Court of Appeal,

Fourth District, Division 1, California.

Filed January 28, 2014

Review Denied April 30, 2014 ^*

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

APPEAL from a postjudgment order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed. (Super. Ct. No. ECR11231)

Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael Romano, San Francisco, and Emily Galvin for the Stanford Three Strikes Project as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson, Michael Pulos and Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.

NARES, J.

INTRODUCTION

Overview of the Three Strikes Reform Act of 2012

On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act), which amended Penal Code ¹ sections 667 and 1170.12 and added section 1170.126. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167, 151 Cal.Rptr.3d 901 (Yearwood ).) Under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) as it existed prior to Proposition 36, a defendant convicted of two prior serious or violent felonies was subject as a third strike offender to a sentence of 25 years to life upon conviction of any third felony. (People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279, 1285, 155 Cal.Rptr.3d 856 (Kaulick ).) Now, under the prospective provisions of the Reform Act (set forth in §§ 667, 1170.12), a defendant convicted of two prior serious or violent felonies is subject to the 25–year–to–life sentence only if the current third felony is a serious or violent felony. (Kaulick, at pp. 1285–1286, 1292–1293, 155 Cal.Rptr.3d 856.) Thus, if the third felony is not a serious or violent felony and none of four enumerated disqualifying exceptions or exclusions applies, the defendant will be sentenced as a second strike offender. (Id. at pp. 1286, 1293, 155 Cal.Rptr.3d 856.)

Of particular importance here, the retrospective part of the Reform Act provides a means whereby, under three specified eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the Three Strikes law for a third felony conviction that was not a serious or violent felony may be eligible for resentencing as if he or she only had one prior serious or violent felony conviction. (Kaulick,supra, 215 Cal.App.4th at pp. 1285, 1293, 155 Cal.Rptr.3d 856; Yearwood,supra, 213 Cal.App.4th at p. 170, 151 Cal.Rptr.3d 901, citing § 1170.126, subd. (e) (hereafter section 1170.126(e)).) However, even if the resentencing eligibility criteria are satisfied and none of the disqualifying exceptions or exclusions applies, the prisoner is not entitled to resentencing relief under the Reform Act as a second strike offender if the trial court, in its discretion, determines that such resentencing “would pose an unreasonable risk of danger to public safety.” (Kaulick, at p. 1286, 155 Cal.Rptr.3d 856; § 1170.126, subd. (f) (hereafter section 1170.126(f)).)

Nature of this Case and Contentions on Appeal

In this case, Mark Anthony White is an inmate serving a 25–year–to–life sentence as a third strike offender under the pre-Proposition 36 version of the Three Strikes law following his current conviction of possession of a firearm by a felon (§ 12021, subdivision (a), hereafter section 12021(a)).² For purposes of the Three Strikes law as amended by the Reform Act, this felony offense is not a violent felony within the meaning of section 667.5, subdivision (c), or a serious felony within the meaning of section 1192.7, subdivision (c).

White appeals an order denying a petition he filed under the Reform Act, in which he asked the trial court to recall his life sentence and resentence him as a second strike offender. In denying White's petition, the court found he was ineligible for resentencing relief because he was armed with a firearm during the commission of his current offense— possession of a firearm by a felon—within the meaning of the “armed with a firearm” exclusion set forth in sections 667, subdivision (e)(2)(C)(iii) (hereafter section 667(e)(2)(C)(iii)) and 1170.12, subdivision (c)(2)(C)(iii) (hereafter section 1170.12(c)(2)(C)(iii)), both of which are referenced in section 1170.126, subdivision (e)(2) (hereafter section 1170.126(e)(2)).

White contends the court erred in denying his petition because (1) no sentence was ever imposed on him for being armed with a firearm; (2) the Reform Act “does not exclude the stand-alone offense of firearm possession because one is not ‘armed’ with a firearm during the commission of possession of that firearm”; ³ (3) rules of statutory construction “dictate” that possession of a firearm is not a disqualifying offense because the plain language and syntactic structure of the armed-with-a-firearm exclusion set forth in section 667(e)(2)(C)(iii) “does not include ‘possession’ and it requires that the arming be anchored or tethered to an offense which does not include possession”; (4) the court's “literal and expansive interpretation” of the armed-with-a-firearm exclusion is “contrary to the intent and purpose underlying [the Act]”; and (5) “[a]nother significant reason to interpret the statute in favor of [White] is that the trial court still has discretion to deny relief if it determines that resentencing [him] would ‘pose an unreasonable risk of danger to public safety’ under section 1170.126[ (f) ].”

The Stanford Law School Three Strikes Project filed an amicus curiae brief in support of White, asserting that (1) “ ‘[p]ossession’ of a firearm is a separate distinct offense from being ‘armed’ with a firearm and from ‘using’ a firearm, and a conviction for ‘possession’ of a firearm does not disqualify a petitioner from relief under Prop[osition] 36”; (2) “[a]ny offense or conduct that disqualifies a petitioner from relief under Prop[osition] 36 must be ‘pled and proven’ by the prosecution”; and (3) Proposition 36 “only excludes offenses where the petitioner's firearm was connected to a separate underlying offe[nse].”

Issue and Holdings

The principal issue we must decide is whether the armed-with-a-firearm exclusion applies to White so as to render him ineligible for resentencing relief under the Reform Act.

We conclude the exclusion applies and, thus, the court properly denied White's petition. In reaching this conclusion, we hold that, where, as here, the record establishes that a defendant convicted under the pre-Proposition 36 version of the Three Strikes law as a third strike offender of possession of a firearm by a felon was armed with the firearm during the commission of that offense, the armed-with-a-firearm exclusion applies and the defendant is not entitled to resentencing relief under the Reform Act. We also hold that in such a case a trial court may deny section 1170.126 resentencing relief under the armed-with-a-firearm exclusion even if the accusatory pleading, under which the defendant was charged and convicted of possession of a firearm by a felon, did not allege he or she was armed with a firearm during the commission of that possession offense. Accordingly, we affirm the order denying White's petition for a recall of his sentence and for resentencing as a second strike offender under the Reform Act.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background⁴

On March 29, 1995, El Cajon Police Department officers conducted a surveillance of White's residence. A search warrant had been issued. During the surveillance, officers saw White, who was a convicted felon, walking towards his pickup truck and carrying in his cupped left hand and under his arm a rolled-up cloth (later found to be a pair of sweatpants) with an object inside. Believing White might be armed, officers moved towards him and drew their guns. White began to run and reached inside the rolled-up sweatpants he was carrying. He then looked behind him, saw the officers coming towards him, and threw both the sweatpants and the object inside the sweatpants into the bed of his truck. White was taken into custody, and the object—a loaded Taurus .357–magnum revolver—was recovered from the bed of the truck. The officers also found bullets for that gun inside the truck.

B. Procedural Background1. Current conviction and sentence

In 1995 White was convicted of his current nonserious and nonviolent offense—possession of a firearm by a felon (§ 12021(a))—and the court thereafter found true sentence enhancement allegations that White had sustained three prior strikes within the meaning of the Three Strikes law and one prior prison term within the meaning of section 667.5, subdivision (b).⁵ The court dismissed the prison prior and sentenced White as a third strike offender to an indeterminate prison term of 25 years to life under the pre-Proposition 36 version of the Three Strikes law.

2. White's petition to recall his life sentence under the Reform Act

Shortly after the voters approved Proposition 36, White petitioned the court under section 1170.126 to recall his life sentence and resentence him as a second strike offender. As pertinent here, White argued that he qualified for resentencing under that section because (1) he was serving the life sentence for his conviction of a violation of section 12021(a), a felony that was not a serious or violent felony; and (2) his sentence was not imposed for an offense appearing in sections 667(e)(2)(C)(iii) and 1170.12(c)(2)(C)(iii). In support of his petition White submitted a copy of what he described as a “laudatory chrono report from his [California Department of Corrections and...