Opinion
G053283
11-06-2017
THE PEOPLE, Plaintiff and Respondent, v. ZANDLE RODRICK BODE, Defendant and Appellant.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Troung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 96NF2167) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Troung, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Zandle Rodrick Bode challenges the trial court's denial of his petition for resentencing under Proposition 36. (Pen. Code, § 1170.126.) He assails the court's order on both legal and factual grounds, but we find his arguments unavailing and affirm the order.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are derived from People v. Bode (Nov. 24, 1999, G023474) [nonpub. opn.], in which we affirmed the convictions at issue in this case. That opinion shows defendant's troubles started when he threatened two people with a gun. The police were summoned to defendant's apartment, but when they knocked on the door, he did not answer. So, they parked a patrol car in front of the apartment and used the vehicle's public address system to identify themselves and request any occupants to come outside. (Id. at p. 2.)
"Armed with a shotgun, defendant opened a window and said, 'I have a shotgun and a mini .14 [rifle] with 40 rounds that can take you out.' The officers called for the Anaheim SWAT team and a tactical negotiation unit. A member of the tactical team telephoned defendant's apartment. Defendant told the officer that, 'nobody's coming into my house without a warrant' and he threatened to 'kill the first pig that comes through the front door.' Two members of the tactical negotiation unit talked by telephone with defendant during the next several hours. He eventually surrendered. A search of his home yielded three loaded guns: An assault rifle, a 12 gauge shotgun, and a .38 caliber handgun." (People v. Bode, supra, G023474, at pp. 2-3.)
As relevant here, the jury found defendant guilty of resisting arrest (§ 69), making a criminal threat (§ 422), and three counts of possessing a firearm while a felon (§ 12021, subd. (a)). However, the jury found not true allegations defendant personally used a firearm during those offenses. (§ 12022.5.) After finding defendant had suffered two prior strike convictions (§§ 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)) and served three prior prison terms (§ 667.5, subd. (b)), the trial court sentenced him to concurrent terms of 25 years to life in prison on each of his five felony convictions. It then added one year each for two of the prison priors, bringing his aggregate sentence to 27 years to life. As noted above, we affirmed the judgment on appeal in 1999. (People v. Bode, supra, G023474.)
On November 1, 2013, defendant filed a petition to have his sentence recalled and to be resentenced pursuant to Proposition 36. It failed. The trial court determined defendant was ineligible for resentencing on his conviction for making a criminal threat because that crime is a serious felony. And the court found defendant was ineligible for resentencing on his convictions for resisting arrest and possessing a firearm as a felon because he was armed with a firearm during those offenses.
DISCUSSION
Defendant does not dispute the trial court's determination he was ineligible for resentencing on his criminal threat conviction. However, as respondent concedes, that does not preclude defendant from challenging the trial court's ruling with respect to his convictions for resisting arrest and possessing a firearm while a felon because a defendant's eligibility for relief under Proposition 36 must be assessed on a count-by-count basis. (People v. Johnson (2015) 61 Cal.4th 674 (Johnson).) As to those convictions, which we will sometimes refer to collectively as defendant's third-strike offenses or third-strike convictions, defendant contends the trial court erred both legally and factually in finding he was ineligible for resentencing. We disagree.
The Supreme Court's decision in People v. Estrada (2017) 3 Cal.5th 661 (Estrada) provides a good starting place for our discussion. Estrada explained, "Prior to the approval of Proposition 36, the Three Strikes law imposed a prison term of 25 years to life on a defendant for a felony conviction, even if it was not a serious or violent felony, where the defendant had two or more prior convictions for serious or violent felonies. [Citation.] Following enactment of Proposition 36, defendants are now subject to a lesser sentence when they have two or more prior strikes and are convicted of a felony that is neither serious nor violent, unless an exception applies. [Citations.] One such exception is if, '[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.' (§ 1170.12, subd. (c)(2)(C)(iii).)
"[Proposition 36] applies both prospectively and to defendants already sentenced under the prereform version of the Three Strikes law. A defendant with two prior strikes convicted of a nonserious, nonviolent felony cannot be sentenced to a third strike term unless the prosecution 'pleads and proves' that one of [Proposition 36's] exceptions applies. (§ 1170.12, subd. (c)(2)(C).) For those sentenced under the scheme previously in force, [Proposition 36] establishes procedures for convicted individuals to seek resentencing in accordance with the new sentencing rules. (§ 1170.126.) The procedures call for two determinations. First, an inmate must be eligible for resentencing. (§ 1170.126, subd. (e)(2).) An inmate is eligible for resentencing if his or her current sentence was not imposed for a violent or serious felony and was not imposed for any of the offenses described in clauses (i) to (iv) of section 1170.12, subdivision (c)(2)(C). (§ 1170.126, subd. (e)(2).) Those clauses describe certain kinds of criminal conduct, including the use of a firearm during the commission of the offense. Second, an inmate must be suitable for resentencing. Even if eligible, a defendant is unsuitable for resentencing if 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subd. (f).) If an inmate is found both eligible and suitable, the inmate's third strike sentence is recalled, and the inmate is resentenced to a second strike sentence. (Ibid.; § 1170.12, subd. (c)(1).)" (Estrada, supra, 3 Cal.5th at pp. 666-667.)
Defendant was sentenced in 1997, well before Proposition 36 was passed. The issue we must decide is whether the trial court correctly determined he was ineligible for resentencing on the basis he was armed with a firearm during his third-strike offenses. In defendant's view, the trial court erred as a matter of law in looking beyond the face of the judgment of his 1997 case in making this determination. The way he sees it, "The trial court must base its determination of whether a defendant is eligible for relief under [Proposition 36] solely on [his] conviction offense and any enhancements admitted by the defendant or found true by the trier of fact. It may not make its own factual determination to find the defendant ineligible beyond what the jury found or he admitted."
Defendant's argument is premised on language in Johnson, supra, 61 Cal.4th 674. In describing the general purpose of Proposition 36 in that case, the Supreme Court stated, "[T]he parallel structure of [Proposition 36's] sentencing and resentencing provisions appears to contemplate identical sentences in connection with identical criminal histories, unless the trial court concludes that resentencing would pose an unreasonable risk to public safety." (Id. at p. 687; point reiterated at p. 691.) Defendant takes that to mean someone like himself, who was convicted before Proposition 36 was passed, cannot be denied the benefits of the law unless the jury convicted him of an offense or found an enhancement true that necessarily encompasses one of the law's exceptions. If that were true, defendant would be eligible for resentencing because the elements of his third-strike offenses for resisting arrest and possessing a firearm as a felon do not necessarily prove he was armed with a firearm during the commission of those offenses for purposes of Proposition 36. (See People v. White (2014) 223 Cal.App.4th 512, 524 [pointing out "a convicted felon may be found to be a felon in possession of a firearm if he or she knowingly kept a firearm in a locked offsite storage unit even though he or she had no ready access to the firearm and, thus, was not armed with it" within the meaning of Proposition 36].)
Unfortunately for defendant, his interpretation of the initiative was rejected by the Supreme Court in Estrada, supra, 3 Cal.5th 661. In that case, the trial court ruled Estrada was ineligible for resentencing under Proposition 36 because the transcript of his preliminary hearing revealed he was armed with a firearm during his third-strike offense. (Id. at pp. 665-666.) In so doing, the trial court relied on facts underlying related counts that were dismissed as part of Estrada's plea agreement. (Ibid.) This procedural posture presented two questions for the Supreme Court on appeal: First, may the trial court "consider facts beyond those encompassed by the judgment when making an eligibility determination" pursuant to Proposition 36, and if so, may it "consider the subset of those facts connected to dismissed counts when making that determination." (Id. at p. 668.)
Regarding the first issue, Estrada invoked Johnson's statement about the "parallel structure" of Proposition 36's sentencing and resentencing provisions. As defendant does here, Estrada asserted that if the judgment of conviction governs the applicability of Proposition 36 in cases arising after the initiative was passed, then the judgment of conviction should govern the applicability of Proposition 36 in cases decided before the initiative was passed. The Supreme Court disagreed, noting "nowhere in Johnson did we suggest that [Proposition 36's] general purpose compelled identical treatment of past and prospective offenders, despite a clear indication that the statutory design was premised on the existence of certain distinctions in their treatment. Rather, we stated only that the substantive criteria that render a future offender eligible for a third strike sentence are the same substantive criteria that render a past offender ineligible for a reduction in sentence. [Citations.] So the passage from Johnson does not buttress Estrada's position." (Estrada, supra, 3 Cal.5th at pp. 672-673.) Indeed, Estrada ruled, "Precluding a court from considering facts not encompassed within the judgment of conviction would be inconsistent with the text, structure, and purpose of [Proposition 36] - and would, by consequence, impose an unnecessary limitation." (Id. at p. 672.)
In so ruling, the Supreme Court disapproved of People v. Berry (2015) 235 Cal.App.4th 1417, upon which defendant relies, to the extent it limits the trial court's examination to facts encompassed within the judgment of conviction.
The Estrada court also sanctioned the trial court's consideration of facts relating to dismissed counts, so long as "those facts also underlie a count to which the defendant pleaded guilty." (Estrada, supra, 3 Cal.5th at p. 674.) That aspect of the court's ruling is not directly pertinent here because defendant was convicted by a jury, not as part of a plea bargain. However, in light of Estrada, it is clear the trial court was entitled to go beyond the face of defendant's judgment and look at the entire record of his convictions in determining whether he was eligible for resentencing under Proposition 36. (Id. at pp. 668-673; accord, People v. Cruz (Oct. 3, 2017, B276571) ___ Cal.App.5th ___.) We therefore reject defendant's claim to the contrary.
Alternatively, defendant argues the jury's not-true finding on the firearm allegations barred the trial court from finding he was armed with a firearm for purposes of Proposition 36. In Estrada, the Supreme Court expressly declined to address the legal effect of an acquittal on a defendant's eligibility for relief under Proposition 36. (Estrada, supra, 3 Cal.5th at p. 666, fn. 6.) However, regardless of that issue, defendant's argument fails for a more basic reason. Although the jury found not true the allegation he used a firearm during his crimes, that finding did not provide a definitive answer to the question presented in his Proposition 36 petition, i.e., whether he was armed with a firearm when he committed his third-strike offenses. As respondent points out, the firearm-use allegation requires proof the defendant displayed his guns in a menacing manner or intentionally shot them (§ 12022.5; Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1000-1001), whereas the armed-with-a-firearm disqualifier under Proposition 36 merely requires proof the defendant had ready access to a firearm for offensive or defensive purposes (People v. Bland (1995) 10 Cal.4th 991, 997; People v. White, supra, 223 Cal.App.4th at p. 524).
Since access to the weapon is the key consideration under Proposition 36, the defendant need not physically carry a firearm on his person to be armed for purposes of the initiative. (People v. Superior Court (Cervantes) 225 Cal.App.4th 1007, 1013.) "'"[I]t is the availability - the ready access - of the weapon that constitutes arming."' [Citations.]" (People v. White, supra, 223 Cal.App.4th at p. 524.) Therefore, the jury's not-true finding on the firearm-use allegations did not prevent the trial court from finding defendant was armed with a firearm for purposes of Proposition 36. (See People v. Cruz, supra, ___ Cal.App.5th at p. ___ [jury's not-true finding on allegation defendant used a weapon during his third-strike offense did not preclude a finding he was armed for purposes of Proposition 36]; compare People v. Arevalo (2016) 244 Cal.App.4th 836 [defendant's acquittal on weapons charge and not-true finding on armed allegation precluded trial court from finding him ineligible for Proposition 36 relief on the basis he was armed with a firearm during his third-strike offenses].)
Still, defendant maintains there is insufficient evidence to support the trial court's determination he was armed with a firearm during his third-strike offenses. In reviewing that claim, we apply the deferential substantial evidence test. (People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331; see generally People v. Trinh (2014) 59 Cal.4th 216, 236 [trial court's factual findings are reviewed for substantial evidence].) Under that test, we do not reweigh the evidence or resolve evidentiary conflicts but simply look to see if the court's decision is supported by evidence that is reasonable, credible and of solid value. (People v. Manibusan (2013) 58 Cal.4th 40, 87; People v. Alexander (2010) 49 Cal.4th 846, 917.) Reversal is not required unless upon no hypothesis whatever is there substantial evidence to support the court's decision. (People v. Cravens (2012) 53 Cal.4th 500, 508.)
In challenging the trial court's armed finding, defendant points out the record fails to show exactly where his firearms were located when the police found them in his apartment. However, according to our prior opinion, which is in play because it is part of the record of defendant's convictions (People v. Cruz, supra, ___ Cal.App.5th at p. ___), defendant threatened one couple with a gun, and then, when the police asked him to come outside, he told them, "'I have a shotgun and a mini .14 [rifle] with 40 rounds that can take you out.'" (People v. Bode, supra, G023474, at p. 2.) He also threatened to kill the police if they tried to make a warrantless entry into his apartment, which contained an assault rifle, a 12-gauge shotgun, and a .38-caliber handgun, all of which were loaded. (Id. at p. 3.) On these facts, it is reasonable to infer defendant had ready access to all three of those weapons when he committed his third-strike offenses.
Lastly, defendant contends there is insufficient evidence he possessed the specific firearms the jury convicted him of possessing. However, we need not decide whether there is substantial evidence to support the jury's verdict on defendant's third-strike convictions. We simply have to decide if there is substantial evidence to support the trial court's determination that, as to those convictions, defendant was armed with a firearm for purposes of Proposition 36. Because the record provides substantial evidence defendant had ready access to three different firearms when he resisted arrest and possessed a firearm as a felon, the trial court properly denied his petition for resentencing for those crimes. No cause for reversal has been shown.
DISPOSITION
The trial court's order denying defendant's petition for Proposition 36 relief is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.