Opinion
E064994
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER DAVIS, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF111066) OPINION APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Christopher Davis appeals from the trial court's denial of his petition for recall of his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (the Act). (Pen. Code, § 1170.126.) On appeal, defendant argues (1) the trial court erred in finding him ineligible for resentencing under the Act because there was insufficient evidence to support a finding he was "armed" within the meaning of the statute; and (2) the Act requires an arming allegation be pled and proved by the prosecution in the underlying case in order to disqualify him from resentencing. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background and part of the procedural background is taken from this court's opinion in defendant's prior appeal in case No. E060014 (People v. Davis (Feb. 18, 2015, E060014) [nonpub. opn.] (Davis I)). On May 9, 2016, this Court took judicial notice of the record in that case.
Early one morning in August 2002, while defendant was living with his girlfriend, Lisa McDowell, in a one-bedroom apartment, United States Postal Inspectors searched defendant and McDowell's apartment. When the inspectors knocked and announced their presence, McDowell immediately let them in. Defendant remained in the bedroom while the inspectors repeatedly called for anyone else to come out. Finally, after the inspectors called out defendant's name, defendant exited the bedroom.
The inspectors searched the bedroom. Defendant's pants with his wallet were on the floor to the right of the bed. On top of the nightstand, on the right side of the bed, was a box of .38-caliber ammunition, two .25-caliber bullets, and a 380-automatic bullet.
There was also .25- and 380-caliber ammunition on top of the dresser. Inspector Goodrich bumped the bed and a loaded .44-magnum semiautomatic handgun fell onto his foot from a cavity in the underside of the bed's box spring. Inspector Griffin found in the bedroom closet a plastic bag containing letters addressed to "Slow Poke" and to "Mr. S. Capone"; photographs of defendant with fellow Insane Crip gang member Lovell Polk, known as "Red"; and a couple .25-caliber bullets. Also in the closet were utility bills and other papers bearing defendant's name. Defendant's gang moniker was "Slow Poke" and sometimes he used the name "Slow Capone."
At trial, McDowell testified that she did not bring the ammunition or gun into the apartment and the gun was not hers. She said defendant slept on the right side of the bed. She saw him with the gun in the living room in February or March that year and told him to get rid of it.
McDowell had convictions for robbery, petty theft with a prior, passing a bad check, burglary, and giving a false I.D. to the police. At the time of her testimony, she was in custody in Chowchilla for a probation violation.
Later on the day of the search, defendant called McDowell from the detention center and told her to tell "cuz" that the police had seized the .44-magnum handgun. Defendant had not previously been told the caliber of the gun the inspectors found in his bedroom. The call was taped.
While detention center correctional deputy, Thomas Tanner, was screening inmate mail, he noticed an envelope with defendant's name and booking number on it and a letter. The letter requested others, in effect, to intimidate or eliminate McDowell as a witness.
On July 19, 2004, defendant was found guilty of ex-felon in possession of a firearm (former § 12021, subd. (a)(1)) and unlawful possession of ammunition (§ 12316, subd. (b)(1)). In a bifurcated proceeding, the trial court found true that defendant had suffered 10 prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)) and two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a total term of 27 years to life in state prison.
On November 6, 2012, the electorate passed Proposition 36, also known as the Act. Among other things, this ballot measure enacted section 1170.126, which permits persons currently serving an indeterminate life term under the "Three Strikes" law to file a petition in the sentencing court seeking to be resentenced to a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that the defendant meets the criteria of section 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is eligible for resentencing if he or she is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or subdivision (c) of section 1170.12 "for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7." (§ 1170.126, subd. (e)(1).) The Act makes ineligible for resentencing those persons who "[d]uring the commission of the current offense, the defendant used a firearm, [or] was armed with a firearm . . . ." (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii); see § 1170.126, subd. (e).)
On January 10, 2013, defendant, in pro. per., filed a petition for resentencing under section 1170.126. The court thereafter appointed counsel to represent defendant. On April 17, 2013, defendant's counsel filed a resentencing brief, and again on May 6, 2013. On April 18, 2013, the People filed three oppositions to defendant's petition for resentencing. The People opposed the petition on the ground that defendant was statutorily ineligible for resentencing under the Act because during the commission of his commitment offenses, defendant was armed with a firearm. The People also opposed the petition on the basis that defendant continued to pose an unreasonable risk of danger to public safety based on his past criminal behavior and continued criminal behavior while incarcerated.
The trial court heard the petition on November 8, 2013. At that time, defendant filed a psychological report from Dr. Robert Suiter, as well as letters of support, education progress reports, and education certificates. Following argument from the parties, the trial court denied the petition, finding defendant continued to pose an unreasonable risk of danger to public safety.
At that time, there was no indication in the record whether or not the trial court made the initial determination of eligibility for resentencing under section 1170.126.
Defendant appealed on November 12, 2013, and this court in an unpublished opinion reversed the trial court's order for failure to make an initial determination of eligibility and remanded the matter for a further hearing. (See Davis I, supra, E060014.)
On remand, a subsequent hearing was held on November 23, 2015. Following argument from the parties, and based upon the facts contained in this court's prior appellate opinions, the trial court found that defendant was ineligible for relief under the Act because defendant was constructively armed with a firearm during the commission of the underlying offense of being a felon in possession of a firearm. Defendant timely appealed from that order in December 2015.
Defendant appealed from his conviction for the underlying offenses in case No. E036278 (People v. Davis (June 15, 2005, E036278 [nonpub. opn.].) This court affirmed defendant's underlying offenses as well as his three strikes sentence on June 15, 2005.
II
DISCUSSION
Defendant argues that the trial court erred in finding him ineligible for resentencing under the Act, because there is insufficient evidence to support a finding he was "armed" with a firearm during the commission of his underlying offense of being a felon in possession of a firearm within the meaning of the Act. Defendant also argues the Act requires an arming allegation be pled and proved by the jury in the underlying case in order to disqualify him from resentencing. For the reasons explained below, we reject these contentions.
A. Standard of Review
When interpreting a voter initiative, "we apply the same principles that govern statutory construction." (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look " 'to the language of the statute, giving the words their ordinary meaning.' " (Ibid.) We construe the statutory language "in the context of the statute as a whole and the overall statutory scheme." (Ibid.) If the language is ambiguous, we look to " 'other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' " (Ibid.)
B. Overview of the Act Generally
"The Act amended sections 667 and 1170.12 and added section 1170.126; it changed the requirements for sentencing some third strike offenders. 'Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. [Citations.] The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)' " (People v. Brimmer (2014) 230 Cal.App.4th 782, 791 (Brimmer), quoting People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 (Yearwood).)
"Thus, there are two parts to the Act: the first part is prospective only, reducing the sentence to be imposed in future three strike cases where the third strike is not a serious or violent felony [citations]; the second part is retrospective, providing similar, but not identical, relief for prisoners already serving third strike sentences in cases where the third strike was not a serious or violent felony (Pen. Code, § 1170.126.)." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292, italics omitted (Kaulick).) "The main difference between the prospective and the retrospective parts of the Act is that the retrospective part of the Act contains an 'escape valve' from resentencing for prisoners whose release poses a risk of danger." (Id. at p. 1293.)
We agree with defendant that his current underlying commitment felony offenses of felon in possession of a firearm and unlawful possession of ammunition are not serious or violent felonies under section 667.5, subdivision (c), or section 1192.7, subdivision (c). However, the inquiry does not end with whether or not the commitment conviction is a serious or violent felony. As previously noted, an inmate is eligible for such resentencing if none of his or her commitment offenses constitute serious or violent felonies and none of the enumerated factors disqualifying a defendant for resentencing under the Act apply. (§ 1170.126, subd. (e).)
Being armed with a firearm during the commission of a current offense is a disqualifying factor listed in section 667, subdivision (e)(2)(C)(iii), and section 1170.12, subdivision (c)(2)(C)(iii). Thus, under the plain language of the armed with a firearm exclusion, defendant is ineligible for resentencing relief as a second strike offender if his life sentence was imposed because "[d]uring the commission of the current offense, [he] . . . was armed with a firearm." (§§ 667, subd. (e)(2)(C)(iii) & 1170.12, subd. (c)(2)(C)(iii), both cross-referenced in § 1170.126, subd. (e)(2).)
"In approving the Act, the voters found and declared that its purpose was to prevent the early release of dangerous criminals and relieve prison overcrowding by allowing low-risk, nonviolent inmates serving life sentences for petty crimes, such as shoplifting and simple drug possession, to receive twice the normal sentence instead of a life sentence. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105 (Voter Information Guide); see People v. White (2014) 223 Cal.App.4th 512, 522 . . . (White) (review den. Apr. 30, 2014, S217030 [Fourth Dist., Div. One].) The electorate also mandated that the Act be liberally construed to effectuate the protection of the health, safety, and welfare of the people of California. (Voter Information Guide, supra, text of Prop. 36, § 7, p. 110; see White, supra, at p. 522.) Accordingly, we liberally construe the provisions of the Act in order to effectuate its foregoing purposes and note that findings in voter information guides may be used to illuminate ambiguous or uncertain provisions of an enactment. [Citations.]" (Brimmer, supra, 230 Cal.App.4th at p. 793, citing White, supra, at p. 522 and Yearwood, supra, 213 Cal.App.4th at pp. 170-171.)
C. Armed With a Firearm Exclusion
" 'The statutory elements of a violation of section 12021, subdivision (a)(1), . . . are that a person, who has previously been convicted of a felony, had in his or her possession or under his or her custody or control any firearm.' [Citation.] Although the crime of possession of a firearm by a felon may involve the act of personally carrying or being in actual physical possession of a firearm . . . such an act is not an essential element of a violation of former section 12021, subdivision (a), because a conviction of this offense may also be based on a defendant's constructive possession of a firearm. [Citations.] 'To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.' [Citation.] Hence, while the act of being armed with a firearm—that is, having ready access to a firearm [citation]—necessarily requires possession of the firearm, possession of a firearm does not necessarily require that the possessor be armed with it." (Brimmer, supra, 230 Cal.App.4th at p. 795, italics omitted.)
"[A]rming under the sentence enhancement statutes does not require that a defendant utilize a firearm or even carry one on the body. A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citations.] . . . '[I]t is the availability—the ready access—of the weapon that constitutes arming.' [Citation.]" (People v. Bland (1995) 10 Cal.4th 991, 997, italics omitted (Bland).)
As a result of these principles, "not every commitment offense for unlawful possession of a gun necessarily involves being armed with the gun, if the gun is not otherwise available for immediate use in connection with its possession, e.g., where it is under a defendant's dominion and control in a location not readily accessible to him at the time of its discovery." (People v. Elder (2014) 227 Cal.App.4th 1308, 1313-1314 (Elder).) "A firearm can be under a person's dominion and control without it being available for use. For example, suppose a parolee's residence (in which only he lives) is searched and a firearm is found next to his bed. The parolee is in possession of the firearm, because it is under his dominion and control. If he is not home at the time, however, he is not armed with the firearm, because it is not readily available to him for offensive or defensive use. Accordingly, possessing a firearm does not necessarily constitute being armed with a firearm." (People v. Osuna (2014) 225 Cal.App.4th 1020, 1030 (Osuna), fn. omitted.) Rather, a person is " '[a]rmed with a firearm' " under the Act when he or she "ha[s] a firearm available for use, either offensively or defensively. (E.g., § 1203.06, subd. (b)(3).)" (Id. at p. 1029; Brimmer, supra, 230 Cal.App.4th at p. 795.)
As we previously explained in Davis I, numerous cases have concluded that, under the Act, a conviction for being a felon in possession of a firearm disqualifies an inmate from resentencing if the nature of that possession amounted to arming as defined in Bland. (See, e.g., White, supra, 223 Cal.App.4th at pp. 525-526 [defendant who tossed away handgun while running from police found to be armed with a firearm and, thus, not eligible for resentencing]; People v. Hicks (2014) 231 Cal.App.4th 275, 280, 284 (Hicks) [where defendant was detained at front gate of apartment complex and a gun was found inside his backpack in apartment he had been visiting, defendant was held to be armed and, thus, not eligible for resentencing]; Brimmer, supra, 230 Cal.App.4th at pp. 796-797 [defendant who threatened his girlfriend with shotgun during argument was found to be armed and not entitled to resentencing]; Elder, supra, 227 Cal.App.4th at p. 1317 [police found defendant outside his apartment and—inside—found a gun on cabinet shelf and a second gun in bedroom safe; defendant was found to be armed with a firearm and thus ineligible for resentencing]; People v. Caraballo (2016) 246 Cal.App.4th 936, 941 [inmate who was "vicariously armed" with a firearm during commission of the current offense is disqualified from resentencing].)
Hence, to be ineligible for resentencing, there need not be a facilitative nexus between an inmate's current offense (here, being a felon in possession of a firearm) and the disqualifying factor of being armed during the commission of that offense. "[U]nlike section 12022, which requires that a defendant be armed 'in the commission of' a felony for additional punishment to be imposed (italics added), the Act disqualifies an inmate from eligibility for lesser punishment if he or she was armed with a firearm '[d]uring the commission of the current offense (italics added). 'During' is variously defined as 'throughout the continuance or course of' or 'at some point in the course of.' (Webster's 3d New Internat. Dict. (1993) p. 703.) Thus, there must be a temporal nexus between the arming and the underlying felony, not a facilitative one. The two are not the same. [Citation.]" (Hicks, supra, 231 Cal.App.4th at pp. 283-284, italics added; accord Brimmer, supra, 230 Cal.App.4th at pp. 798-799; Osuna, supra, 225 Cal.App.4th at p. 1032.)
In assessing eligibility for resentencing under the Act, we look to the record of conviction, which includes the facts recited in any prior appellate decisions. (Osuna, supra, 225 Cal.App.4th at p. 1030; Hicks, supra, 231 Cal.App.4th at p. 286.) The facts we recited above are drawn from our prior appellate decision, and they confirm that defendant was armed with a firearm when the postal inspectors searched defendant's bedroom. When the inspectors knocked and announced their presence, McDowell immediately let them in; however, defendant remained in his bedroom while the inspectors repeatedly called for anyone else to come out. Defendant eventually exited his bedroom after the inspectors called out defendant's name. In the course of their search of defendant's bedroom, inspectors found ammunition in plain view on top of a nightstand, on the right side of the bed where defendant slept, and on top of a dresser. The inspectors also discovered a loaded semiautomatic handgun that fell onto the foot of an inspector when the inspector bumped the bed. The handgun had been loosely concealed in a cavity underneath the bed's box spring, and defendant was indisputably aware of its presence. Although when defendant exited his bedroom he did not physically have possession of the firearm, the temporal nexus is present here to show defendant constructively possessed the firearm, i.e., it was available for offensive or defensive use, and that is sufficient to render defendant ineligible for relief under the Act.
Defendant acknowledges that he "may have constructively possessed the firearm," but argues that he was not in a position to actually use it "at the time of his arrest." However, while the defendants in White and Brimmer were in physical possession of a firearm at the time they committed their offenses, a finding that a defendant was armed with a firearm does not turn on whether the defendant was actually holding or carrying the firearm at the time of his or her arrest. As explained above, a firearm that is only in constructive possession is nevertheless still readily available for use to a defendant.
For example, in Elder, the defendant was convicted of possession of a firearm by a convicted felon after a loaded gun was found on a shelf of an entertainment center in the defendant's apartment; another gun was found in an unlocked safe in a bedroom; and a photograph of defendant holding the gun on the entertainment center was also found. (Elder, supra, 227 Cal.App.4th at p. 1317.) At trial, the defendant claimed the guns belonged to his girlfriend and that he only visited on weekends. (Ibid.) The defendant appealed, claiming as a matter of statutory interpretation he cannot be armed while committing the crime of unlawful possession of a gun and that the prosecution had to plead and prove the circumstance in the proceedings underlying his commitment offense. (Id. at p. 1311.) Following an analysis of the Act and section 12022, the appellate court held that for purposes of section 1170.126, unlawful possession of a gun can constitute being armed with the gun during the possession if the defendant is aware during the commission of the offense of the nearby presence of a gun available for use offensively or defensively, the presence of which is not a matter of happenstance, and no intent to use the gun is required. (Id. at pp. 1312-1314; see People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011-1018 [defendant may be barred from resentencing and is armed with a firearm even if he was not carrying a firearm on his person]; People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 984-985, 989-995 [defendant was " 'armed' " with a firearm, even though the defendant did not carry the firearm on his person].)
Here, because there was a temporal nexus between the arming and the underlying felony of being a felon in possession of a firearm, the trial court properly ruled that defendant was ineligible for resentencing under the Act.
D. Pleading and Proof Requirement
Defendant further argues that the Act requires the arming allegation be pled and proved to a jury in order to disqualify a defendant from resentencing under the Act. Defendant acknowledges appellate cases since the passage of the Act have repeatedly rejected similar arguments, but asserts those cases were wrongly decided. We disagree.
In Davis I, supra, E060014, we addressed defendant's exact issues raised in this appeal and rejected them. Citing to our decision in Brimmer, supra, 230 Cal.App.4th 782; as well as to White, supra, 223 Cal.App.4th 512; Osuna, supra, 225 Cal.App.4th 1020; People v. Blakely (2014) 225 Cal.App.4th 1042; and Elder, supra, 227 Cal.App.4th 1308, we found that the Act does not contain a pleading and proof requirement with respect to factors that disqualify defendants from resentencing. We also found that using a disqualifying factor not pled and proved to the jury does not violate a defendant's constitutional rights to due process and a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. Appellate courts have consistently found that the resentencing provisions under section 1170.126 are akin to a hearing regarding "downward sentence modifications due to intervening laws" (Kaulick, supra, 215 Cal.App.4th at p. 1304), and therefore Apprendi and the limitations of the Sixth Amendment do not apply to resentencing determinations. (Accord, Brimmer, supra, 230 Cal.App.4th at pp. 804-805 [Apprendi and its progeny do not apply to a determination of eligibility under the Act]; White, supra, 223 Cal.App.4th at p. 527 [same]; Osuna, supra, 225 Cal.App.4th at p. 1039 [same]; People v. Blakely, supra, 225 Cal.App.4th at p. 1060 [same].)
Our decision in Davis I is law of the case, and we need not address defendant's exact issue again in this appeal. The doctrine of law of the case deals with the effect of the first appellate decision on the subsequent retrial or appeal. The decision of an appellate court stating a rule of law necessary to the decision of the case conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. (Ryan v. Mike-Ron Corp. (1968) 259 Cal.App.2d 91, 96; Quackenbush v. Superior Court (2000) 79 Cal.App.4th 867, 874.) The law of the case doctrine generally precludes multiple appellate review of the same issue in a single case. The doctrine, as the name implies, is exclusively concerned with issues of law and not fact. (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.) The doctrine promotes finality of litigation by preventing a party from relitigating questions previously decided by a reviewing court. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291.)
In any event, for the reasons explained in Brimmer, we reject defendant's pleading and proof requirement claim and find our decision in Brimmer was correctly decided.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.