People v. White

• Decision Date: 15 January 2016
• Docket Number: G050478
• Citation: 243 Cal.App.4th 1354,197 Cal.Rptr.3d 397
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Todd Eugene WHITE, Defendant and Appellant.

243 Cal.App.4th 1354

197 Cal.Rptr.3d 397

The PEOPLE, Plaintiff and Respondent,

v.Todd Eugene WHITE, Defendant and Appellant.

G050478

Court of Appeal, Fourth District, Division 3, California.

Filed January 15, 2016

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, ACTING P.J.

Todd Eugene White appeals from an order denying his petition for recall of his indeterminate life sentence under Penal Code section 1170.126 (all further statutory references are to this code), which was enacted as part of the Three Strikes Reform Act (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, pp. 109–110 (hereafter Voter Information Guide).)

Defendant contends the trial court erred in determining the record of his underlying conviction demonstrated he was "armed" during the commission of the offense of being a felon in possession of a firearm because (1) the case it relied upon, People v. White (2014) 223 Cal.App.4th 512, 167 Cal.Rptr.3d 328 (White ), is inapposite; and (2) the disqualifying factor of being "armed" during the commission of the offense for which the indeterminate life sentence was imposed cannot apply to a mere possessory offense. We affirm.

Defendant attempts to distinguish White on the basis the evidence in that case "inexorably established" the defendant actually, rather than constructively, possessed the gun in question because he was observed throwing the gun away—whereas here, the police did not observe defendant discard his gun into the trash can where it was later found. But it is nonetheless clear defendant's conviction was based on either the inference he discarded the gun into the trash can on that occasion or he had placed it there earlier. Either way, his possession amounts to being armed. Consequently, White is not materially distinguishable.

And while it may be true that case law has established one cannot be armed "in" the commission of a firearm possession—which is the wording used in the statute governing a firearm enhancement —the wording of the "armed" disqualification incorporated into section 1170.126 is somewhat different. It applies to offenders who were armed with a firearm "during" the commission of their offense. That states a different rule which would not exclude possessory offenses.

FACTS

In 1996, defendant was convicted of possession of a firearm by a felon (§ 12021, subd. (a).) He was also found to have been previously convicted of two serious felonies and to have served two prior prison terms within the meaning of section 667.5, subdivision (b). He was sentenced to a term of 27 years to life in prison.

The circumstances of defendant's offense were that on the morning of January 8, 1996, he was walking along a sidewalk carrying a fanny pack by its straps. A police officer noticed defendant from across the street, and observed he had a tattoo on his neck. That meant defendant matched the general description of the suspect in a recent armed robbery. The police officer drove up next to defendant, who turned and walked into the parking lot of the Executive Suites Motel. As the officer drove his patrol car into the motel's parking lot, he lost sight of defendant.

The officer called for backup and a few moments later, he saw defendant walking along the second story corridor of the motel. The officer got out of his car and asked defendant to speak with him. Defendant came down the motel's south stairwell and as he exited the stairwell, the officer noticed his fanny pack appeared to be less full than it had appeared as defendant was walking along the street.

The officer then retraced defendant's path up the motel's south stairwell and across the corridor, looking for anything defendant might have discarded along the way. The officer found a loaded .9 millimeter semi-automatic pistol in a trash can located on the motel's north stairwell. A subsequent search of defendant's fanny pack revealed two more bullets of the same make and caliber as the ones in the gun. No identifiable fingerprints were found on either the gun or the ammunition.

Defendant testified on his own behalf at the underlying trial. He denied having any firearm in his possession when he arrived at the motel, and denied placing the firearm in the trash can in the motel's north stairwell. He explained that when he arrived at the motel, he went up the north stairwell to the second story corridor, and he acknowledged he passed the trash can there. He claimed that the two bullets found in his fanny pack were ones he had found on the motel stairs and picked up.

In 2013, defendant filed a petition for recall of his sentence pursuant to section 1170.126. The trial court initially determined he was eligible for relief, but denied the petition on the basis that resentencing defendant posed an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) However, the court later granted defendant's motion for reconsideration, but ultimately determined that defendant was ineligible for resentencing relief on the ground he was "armed" during the commission of his offense of possessing the firearm.

DISCUSSION

1. The Resentencing law

Section 1170.126 was enacted by voter initiative in 2012 as part of the Three Strikes Reform Act. (Voter Information Guide, supra, text of Prop. 36, § 6, p. 109.) Among the stated purposes of the initiative, as explained to voters, was to "[r]estore the Three Strikes law [sections 667 and 1170.12] to the public's original understanding by requiring life sentences only when a defendant's current conviction is for a violent or serious crime" and to "[m]aintain that repeat offenders convicted of non-violent, non-serious crimes like shoplifting and simple drug possession will receive twice the normal sentence instead of a life sentence." (Id. § 1, p. 105.)

In accordance with those goals, section 1170.126 provides persons who were previously sentenced to indeterminate life terms under an earlier version of the "Three Strikes" law the opportunity to petition for recall of their sentences and resentencing to the term that would have been imposed for their crime under the revised Three Strikes law passed by the voters in the form of Proposition 36. Thus, section 1170.126, subdivision (b) specifies that the relief to be obtained through a successful petition is "resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of section 1170.12, as those statutes have been amended by the act that added this section." (§ 1170.126, subd. (b).)

Consequently, the initial inquiry under section 1170.126 is whether an inmate who is already serving an indeterminate life sentence under the Three Strikes law would have been sentenced to that same indeterminate life term under the revised sentencing provisions of the Three Strikes Reform Act. And the petition to recall the indeterminate life sentence is required to specify the exact basis for its imposition: "The petition ... shall specify all of the currently charged felonies, which resulted in the sentence under paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, or both, and shall also specify all of the prior convictions alleged and proved under subdivision (d) of Section 667 and subdivision (b) of Section 1170.12." (§ 1170.126, subd. (d).)

Subdivision (e) of section 1170.126 then details which inmates are "eligible" for resentencing, based upon what they were sentenced for originally. The first requirement is that "[t]he 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 not defined as serious and/or violent felonies...." (§ 1170.126, subd. (e)(1).)

The second requirement is that "[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." (§ 1170.126, subd. (e)(2).) These cross-referenced offenses include certain controlled substance charges, certain felony sex offenses, as well as offenses during the commission of which "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).) And the third requirement relates to prior convictions, specifying that the eligible inmate "has no 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." (§ 1170.126, subd. (e)(3).)

If the inmate meets these basic eligibility requirements, he or she must be resentenced in accordance with section 667, subdivision (e)(1) and section 1170.12, subdivision (c)(1)—i.e., to twice the term otherwise provided as punishment for the current felony—"unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f), italics added.) Thus, whether an eligible inmate actually obtains resentencing relief will depend upon the court's discretionary assessment of the inmate's dangerousness.

2. Attempt to Distinguish White

In denying defendant's petition on eligibility grounds, the trial court relied on White, another case in which a defendant whose prior conviction was for being a felon in possession of a firearm was ruled ineligible for resentencing relief under section 1170.126, subd. (e)(2) because he was "armed" during the...