Opinion
C073507
04-04-2017
THE PEOPLE, Plaintiff and Respondent, v. MOSES JESSE DURON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF02241)
Defendant Moses Jesse Duron appeals from the denial of his petition for resentencing under Penal Code section 1170.126, which was enacted by voters in 2012 as Proposition 36. Defendant is serving a life sentence imposed in 2002 based on his plea of no contest to a third strike (being a felon in possession of a firearm). His petition asserted he is eligible for a reduced sentence because possession of a firearm by a convicted felon is not a serious or violent crime, but the trial court denied his petition, concluding defendant is not eligible for resentencing because he used a firearm during the commission of the crime for which he is serving a life sentence, and in any event, he poses an unreasonable risk of danger to public safety.
Undesignated statutory references are to the Penal Code.
Defendant now contends (1) the prosecution failed to prove he was armed with or used a firearm during the commission of his current offense; (2) he had a right to a jury trial; (3) he is entitled to the rule of lenity and arming requires a tethering offense; (4) the trial court erroneously relied on the probation officer's report; (5) he received ineffective assistance of counsel; (6) the prosecution did not plead and prove that he used a firearm; and (7) the issue of dangerousness was not briefed by the parties and the trial court should not have reached the question. In supplemental briefing, the parties addressed whether the definition of dangerousness adopted in 2014 by voter approval of Proposition 47 (now section 1170.18) applies to an assessment of dangerousness under section 1170.126.
We conclude the trial court erred in relying on the probation officer's report to find defendant ineligible for resentencing, but the error is harmless because the factual summary in the probation officer's report is consistent with the facts summarized in this court's nonpublished appellate opinion in defendant's prior appeal. The facts described in the appellate opinion show that defendant had a gun available for his use when he committed the current offense of possessing a firearm by a felon. Defendant is not, therefore, eligible for resentencing under section 1170.126, subdivision (e)(2). With regard to the determination of dangerousness, the trial court erred in reaching that issue because there was no notice that the People would argue defendant presented a current danger to public safety or that the trial court would make a dangerousness determination at the March 25, 2013 hearing. Under the circumstances, we need not resolve whether the definition of dangerousness applicable to the Proposition 36 resentencing scheme was narrowed in 2014 by Proposition 47. We reject defendant's other claims as without merit.
We will modify the order by striking the findings and determination of dangerousness and affirm the order denying defendant's resentencing petition as modified.
BACKGROUND
Police responded to a report of gunfire and interviewed witnesses who said defendant fired a .380 caliber handgun. Officers later stopped a car in which defendant was a passenger. Officers found a .380 caliber handgun under the driver's seat of the vehicle and a .22 caliber semi-automatic pistol in defendant's leg brace. Defendant pleaded no contest to being a felon in possession of a firearm (former § 12021, subd. (a)(1)), in particular the .380 caliber handgun, and he admitted three prior felony convictions. The trial court sentenced him to 25 years to life in prison under the Three Strikes law.
Former section 12021, subdivision (a) was recodified, without substantive change, as section 29800, subdivision (a). (People v. Correa (2012) 54 Cal.4th 331, 334, fn. 1.)
In 2012, following amendment of the Three Strikes sentencing scheme, defendant petitioned for recall of his life sentence because it was imposed for a crime not described by statute as serious or violent. The trial court determined defendant was ineligible for resentencing because he used a firearm during the commission of the sentenced crime, specifying that the court was referring to the gun defendant fired and that police subsequently found under the seat of the car he was in, rather than a gun strapped to defendant's leg brace. The trial court further found that even if defendant was eligible for resentencing, it would deny resentencing because defendant posed an unreasonable risk of danger to public safety.
DISCUSSION
I
The Three Strikes Reform Act was approved by voters as Proposition 36 in November 2012. (People v. Hicks (2014) 231 Cal.App.4th 275, 281 (Hicks).) It amended sections 667 and 1170.12 and added section 1170.126, changing the requirements for sentencing a third strike offender to life imprisonment. (Hicks, at p. 281.) The Act essentially "diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecutor has pled and proved an enumerated disqualifying factor." (Ibid.) The Act also created a new postconviction procedure to allow discretionary resentencing for persons serving life sentences for crimes that were not serious or violent. (Id. at pp. 281-282.)
A petition for recall of a sentence under section 1170.126 must list the felonies which led to the indeterminate sentence at issue and also all prior "three-strike" convictions that were alleged and proved against the defendant. (§ 1170.126, subd. (d).) Eligibility for recall of sentence is limited to defendants serving indeterminate terms of life in prison under the three strikes law for felonies that are neither serious nor violent. (§1170.126, subd. (e)(1).) But a defendant is not eligible for resentencing if, among other things, "[d]uring the commission of the current offense, the defendant . . . was armed with . . . a deadly weapon." (§§ 667, subd. (e)(2)(C)(iii), see 1170.126, subd. (e)(2).) The trial court found defendant ineligible for resentencing under section 1170.126, subdivision (e)(2) and defendant disagrees, arguing that his plea to ownership or possession of a gun does not establish that he was "armed" during the commission of the current offense.
"A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively." (People v. Bland (1995) 10 Cal.4th 991, 997 [emphasis omitted].) Contrary to defendant's contention, the issue in a resentencing petition is whether a defendant was armed during the commission of the commitment crime, not whether being armed directly facilitated the crime; the facilitating requirement and proof of a "tethering offense" is pertinent to sentencing enhancements imposed under section 12022 but it does not apply to resentencing. (Hicks, supra, 231 Cal.App.4th at p. 284; see People v. Brimmer (2014) 230 Cal.App.4th 782, 797 (Brimmer); People v. Osuna (2014) 225 Cal.App.4th 1020, 1034 (Osuna) [section 1170.126, subdivision (e)(2) does not require a tethering offense]; People v. White (2014) 223 Cal.App.4th 512, 527 (White).) In other words, a convicted felon who had a weapon available for his use while he committed the crime of possessing a firearm is not eligible for resentencing under the Three Strikes Reform Act. (People v. Perez (2016) 3 Cal.App.5th 812, 827-828 (Perez); Hicks, supra, 231 Cal.App.4th at p. 284; Brimmer, supra, 230 Cal.App.4th at pp. 793-799; People v. Elder (2014) 227 Cal.App.4th 1308, 1312 (Elder); People v. Blakely (2014) 225 Cal.App.4th 1042, 1051-1057 (Blakely) [taking rule of lenity into consideration in so holding]; Osuna, supra, 225 Cal.App.4th at pp. 1029-1038 [same]; White, supra, 223 Cal.App.4th at pp. 524-526.)
Consistent with the voters' intent when they approved Proposition 36, a court may consider all relevant, reliable, and admissible portions of the record of conviction to determine eligibility for resentencing. (Blakely, supra, 225 Cal.App.4th at p. 1063.) The facts needed to adjudicate eligibility must be taken solely from the record of conviction. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1339 (Bradford).) If the record of conviction establishes that a defendant was in physical possession of a firearm when police officers approached him, he was armed during the commission of his current offense and he is ineligible for resentencing. (White, supra, 223 Cal.App.4th at p. 524.)
The trial court here relied solely on the factual summary in a post-plea probation officer's report to conclude that the firearm-use exception applies. The probation officer's report, in turn, purportedly summarizes information contained in a police report. But the record of conviction which a court may properly consider in determining a defendant's eligibility for resentencing does not include police reports and the hearsay account of facts summarized in a postconviction probation officer's report. (Perez, supra, 3 Cal.App.5th at p. 821, fn. 9; People v. Burnes (2015) 242 Cal.App.4th 1452, 1455, 1459-1460 (Burnes); People v. Oehmigen (2014) 232 Cal.App.4th 1, 5, 10 (Oehmigen).) In addition, information which is part of the record of conviction must comport with the rules of evidence. (Perez, supra, 3 Cal.App.5th at p. 821, fn. 9.) Here, the Attorney General fails to demonstrate that the facts stated in the probation officer and police reports are admissible or reliable evidence.
The Attorney General argues any error is harmless because a court can properly rely on a preliminary hearing transcript. That may be so (People v. Reed (1996) 13 Cal.4th 217, 223 (Reed); Perez, supra, 3 Cal.App.5th at p. 821, fn. 9), but the preliminary hearing transcript is not in the record before us. We agree with defendant that the trial court erred in relying on the probation officer's report to find ineligibility. (Reed, at p. 230; Perez, at p. 821, fn. 9; Burnes, supra, 242 Cal.App.4th at pp. 1455, 1459-1460; Oehmigen, supra, 232 Cal.App.4th at pp. 5, 10; Bradford, supra, 227 Cal.App.4th at p. 1339; Blakely, supra, 225 Cal.App.4th at p. 1063.)
Nevertheless, we conclude the error is harmless because the factual summary in the probation officer's report is consistent with the facts summarized in this court's nonpublished appellate opinion in defendant's prior appeal People v. Duron (Sept. 30, 2003, C042228), of which we take judicial notice. (See also Reed, supra, 13 Cal.4th at pp. 230-231 [erroneous admission of probation officer's report did not prejudice the defendant because the report merely duplicated the evidence contained in the properly admitted preliminary hearing transcript]; Burnes, supra, 242 Cal.App.4th at p. 1460 [trial court would not have erred in considering facts described in postconviction probation report if the same facts appeared in a relevant, reliable, admissible portion of the record of conviction].)
We grant the People's request that we take judicial notice of the appellate record in case No. C042228. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
An appellate opinion in the defendant's direct appeal is part of the record of conviction. (Perez, supra, 3 Cal.App.5th at p. 821, fn. 9; Hicks, supra, 231 Cal.App.4th at p. 286; Brimmer, supra, 230 Cal.App.4th at pp. 800-801; People v. Guilford (2014) 228 Cal.App.4th 651, 659-661 (Guilford); Elder, supra, 227 Cal.App.4th at p. 1317; Osuna, supra, 225 Cal.App.4th at p. 1030; see People v. Woodell (1998) 17 Cal.4th 448, 451, 457.) The appellate opinion itself is admissible under the official records exception to the hearsay rule. (Woodell, at p. 458.) The statement of facts in the nonpublished appellate opinion in defendant's prior appeal is based on the sworn testimony of responding officers. While it is hearsay, the certified transcript of that testimony is admissible under the official records and former testimony exceptions to the rule against hearsay. (See Reed, supra, 13 Cal.4th at pp. 224-228 [preliminary hearing transcript].)
Defendant was represented by counsel during the hearing at which the officers testified, and defense counsel had an opportunity to cross-examine the responding officers. Defendant did not file a petition for rehearing in this court in relation to his prior appeal. He does not claim that the factual summary in the appellate opinion is incorrect. The trial court referenced the appellate opinion in defendant's prior appeal at the January 14, 2013 hearing, during which the parties discussed how they would "rebuild the file" in response to defendant's petition for recall of sentence and the trial judge noted that the matter went up on appeal. The nonpublished appellate opinion is part of the clerk's transcript in the instant appeal.
The appellate opinion in defendant's prior appeal states that officers found two handguns in the car in which defendant was a passenger. Officers suspected the car was involved in a shooting. One handgun was found under the driver's seat of the vehicle; the other was inside defendant's leg brace. The appellate opinion shows that defendant had a weapon available for his use when he committed the crime of possessing a firearm by a felon. Defendant is not eligible for resentencing under Proposition 36 because he was armed during the commission of the sentenced crime. (Hicks, supra, 231 Cal.App.4th at pp. 280-281, 284 [the defendant was armed with a firearm when he committed the felon in possession offense even though the firearm was in a backpack he left at an apartment and he was by the front gate of the apartment complex]; Brimmer, supra, 230 Cal.App.4th at pp. 793-799; Elder, supra, 227 Cal.App.4th at pp. 1312, 1317 [defendant was armed with a firearm during his commitment offense where law enforcement officials found him outside the front door of his apartment and they located guns on a shelf and in an unlocked safe inside the apartment]; Blakely, supra, 225 Cal.App.4th at pp. 1051-1057; White, supra, 223 Cal.App.4th at pp. 524-526.)
We also reject each of defendant's procedural challenges. No jury trial is required. (Perez, supra, 3 Cal.App.5th at p. 822, fn. 10; People v. Berry (2015) 235 Cal.App.4th 1417, 1428 (Berry); Brimmer, supra, 230 Cal.App.4th at pp. 803-805 [rejecting argument defendant makes in this case based on Alleyne v. United States (2013) 570 U.S. ___ ]; Guilford, supra, 228 Cal.App.4th at pp. 662-663 [same]; Blakely, supra, 225 Cal.App.4th at p. 1060 [Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny do not apply to a determination of eligibility for resentencing under the Three Strikes Reform Act].) A request for a downward modification of a sentence does not require affirmative pleading and proof of ineligibility. (Perez, supra, 3 Cal.App.5th at p. 822, fn. 10; People v. Chubbuck (2014) 231 Cal.App.4th 737, 745; Brimmer, supra, 230 Cal.App.4th at pp. 801-803; Guilford, supra, 228 Cal.App.4th at pp. 656-659; Elder, supra, 227 Cal.App.4th at p. 1314-1315; Blakely, supra, 225 Cal.App.4th at pp. 1058-1063; Osuna, supra, 225 Cal.App.4th at p. 1033-1034; White, supra, 223 Cal.App.4th at pp. 526-527; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-1305 (Kaulick); see People v. Conley (2016) 63 Cal.4th 646, 659-661 [opining that section 1170.126 does not contain a pleading and proof requirement].)
Any objections or requests for further hearing would have been futile in the face of the unequivocal evidence. Accordingly, we reject defendant's further contention that his counsel was ineffective. (See People v. Maury (2003) 30 Cal.4th 342, 389 [defendant must affirmatively prove both deficient performance and prejudice].) Counsel need not make futile objections, advance meritless arguments, or undertake useless procedural challenges to create an unassailable record of effective assistance. (People v. Jones (1979) 96 Cal.App.3d 820, 827.)
II
Defendant also challenges the trial court's determination that, even if he is eligible for resentencing, resentencing is denied because he poses an unreasonable risk of danger to public safety. He further asserts he received ineffective assistance from his trial counsel because counsel presented no argument or evidence on the issue of dangerousness and failed to object when the trial court proceeded to the determination of dangerousness.
A petitioner who is eligible for resentencing must be resentenced unless the court determines the resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) But in this case, there was no reason to address dangerousness because defendant was not eligible for resentencing. (Berry, supra, 235 Cal.App.4th at p. 1425 [it is only after the defendant is deemed eligible for resentencing that the trial court undertakes the required assessment of that defendant's dangerousness].) Moreover, dangerousness was not briefed or argued by either party. The Court of Appeal in Kaulick, supra, 215 Cal.App.4th 1279, held the People are entitled to notice and an opportunity to be heard on the issue of dangerousness when a defendant files a petition seeking resentencing under the Three Strikes Reform Act. (Id. at p. 1286.) Due process requires that, in an adversarial proceeding, notice of all motions and an opportunity to present argument or evidence must be given whenever the order sought may affect the rights of a party. (Id. at p. 1297; see generally People v. Minor (2010) 189 Cal.App.4th 1, 18 ["The essence of procedural due process is notice and an opportunity to respond."].)
Here, although the People bore the burden of proof on the issue of dangerousness (Kaulick, supra, 215 Cal.App.4th at pp. 1286, 1301) and a determination of dangerousness would undoubtedly affect defendant, there was no notice that the trial court would make a dangerousness determination at the March 25, 2013 hearing. The People did not argue the issue in their papers or at the hearing, nor did they present evidence showing that defendant (who was sentenced about 10 years and 2 months before he filed his petition for recall of sentence) was currently dangerous. (People v. Buford (2016) 4 Cal.App.5th 886, 913; Kaulick, supra, 215 Cal.App.4th at p. 1293, fn. 10.) The parties to a resentencing proceeding pursuant to section 1170.126 have a right to present evidence and argument before the trial court makes its dangerousness determination. (See Bradford, supra, 227 Cal.App.4th at pp. 1331, 1341 [the determination of the defendant's dangerousness necessarily involves input from the parties]; Kaulick, supra, 215 Cal.App.4th at pp. 1297-1298.)
Defendant argues the trial court's determination of dangerousness rendered his hearing fundamentally unfair, thus no showing of prejudice is required. The Attorney General does not address whether prejudice must be established. Even if the trial court's determination is not automatically reversible, we conclude the premature determination of dangerousness without notice or argument was prejudicial either under People v. Watson (1956) 46 Cal.2d 818 or Chapman v. California (1967) 386 U.S. 18 .
DISPOSITION
The order is modified to strike the findings and determination of dangerousness. The order denying defendant's resentencing petition is affirmed as modified.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
BUTZ, J.