Opinion
F070763
01-05-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JONATHAN WHITE, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF100785A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In 2003, appellant Robert Jonathan White was convicted after a jury trial of possession of a firearm after being convicted of a violent felony (Pen.Code, § 12021.1, subd. (a)), with two prior strike convictions, and sentenced to the third strike term of 25 years to life, plus one year for a prior prison term enhancement.
All further statutory citations are to the Penal Code unless otherwise indicated.
After the enactment of Proposition 36 (§ 1170.126), appellant filed a petition for recall of his third strike sentence, and argued he was eligible for resentencing because he was not convicted of a serious or violent felony. The People filed opposition and exhibits from the record of conviction, including the preliminary hearing transcript and this court's unpublished opinion from his prior case, and asserted that he was "armed with a firearm" and thus ineligible for resentencing. The superior court denied appellant's petition.
On appeal, appellant argues the superior court improperly relied on the preliminary hearing transcript to deny his petition, and asserts the court was instead required to review the transcript from his jury trial to determine if he was "armed with a firearm." Appellant further argues that while this court's nonpublished opinion is part of the record of conviction, the facts stated in that opinion fail to establish that he was armed with a firearm.
We affirm.
FACTS
The following factual and procedural history of defendant's prior convictions are from this court's opinion in People v. Robert White (July 22, 2004, F043434 [nonpub. opn.]).
"Appellant was on parole in December of 2002. He, his wife, and her two small children were staying in a motel room on December 1 while they were in the process of moving.
"The family was sleeping when, at about 2 a.m., the telephone rang. Appellant answered. It was a police sergeant, Scott McDonald; he asked appellant to come out of the room and surrender on a parole violation warrant. Appellant asked McDonald to call back in a few minutes, after appellant had a chance to wake up. McDonald agreed.
"Appellant's wife, Paula Lee, had awakened by this time. She disclosed to appellant that a friend had asked her to keep two handguns for the friend; Lee showed appellant where the guns were hidden. Appellant inspected them, discovered they were loaded, unloaded both guns, and placed the bullets in his pocket.
"After a few minutes, McDonald called back. Appellant told him there were 'weapons in the room.' He told McDonald he just wanted to drive away with his family. McDonald said he could not allow that. Appellant then asked for 20 minutes to say goodbye to his family and, again, McDonald agreed.
"After about 20 minutes, appellant spoke to McDonald again, telling him everyone would come out. Lee and the two children emerged first, then appellant emerged with his hands over his head. He had left the guns on the bed near the door so the police could see them.
"Appellant was arrested and was asked if he was carrying anything 'illegal.' He said he was not. During a pat-search, an officer found the bullets in appellant's pocket.
"At trial, appellant and Lee testified for the first time that the guns belonged to the friend. (At the preliminary hearing, Lee had testified she did not know who owned the guns.) They both testified that appellant never threatened to use the guns but, rather, that he simply unloaded them and left them on the bed." (Italics added.) The charges , convictions, and sentence
"Appellant was charged with three felonies and one misdemeanor: [count 1,] possession of a firearm after being convicted of a violent felony (Pen.Code, § 12021.1, subd. (a)); [count 2,] possession of a firearm by a convicted felon (Pen.Code, § 12021, subd. (a)); [count 3,] possession of ammunition by one prohibited from possessing a firearm (Pen.Code, § 12316, subd. (b)); and [count 4,] misdemeanor false imprisonment (of Lee) (Pen.Code, § 236)."
It was alleged appellant had two prior strike convictions: robbery and attempted robbery, both from Santa Barbara Superior Court case No. 213555 in 1996. He was also alleged to have three prior prison term enhancements.
On June 6, 2003, "[t]he jury found appellant guilty of the three felony counts and not guilty of the misdemeanor. The jury found true the enhancement and prior conviction allegations."
"The court sentenced appellant pursuant to the Three Strikes Law to a term of 26 years to life in prison on count 1. The court imposed the same sentence on counts 2 and 3, but stayed those sentences pursuant to Penal Code section 654." This court's nonpublished opinion
In our July 22, 2004, nonpublished opinion, this court rejected defendant's claim that the court had a sua sponte duty, based on the defense evidence, to instruct the jury with CALJIC No. 3.30 on general intent:
"[A]ppellant's theory was that his actions in unloading the guns and placing them on the bed did not constitute having the firearms 'in his or her possession or under his or her custody or control,' as prohibited by both Penal Code section 12021 and 12021.1. The sufficiency of his intent 'to do that which the law declares a crime' (CALJIC No. 3.30) and the union of that intent and his acts of custody and control of the guns, were wholly immaterial to the defense of nonpossession.
"To illustrate the issue by means of a hypothetical example, had the defense been that appellant was sleep-walking when Lee handed him the guns and he awoke only when the police disarmed him, the general intent instruction could have been as important here ....
"In the present case ..., appellant was awake, recognized the guns as guns, and intentionally took possession and control of the guns, he said, for the purpose of unloading them. These facts, acknowledged by appellant both in testimony and in briefing in this court, conclusively establish the intent required for violation of Penal Code sections 12021 and 12021.1."
This court further held, however, that appellant's conviction in count 2 for possession of a firearm by a convicted felon (§ 12021, subd. (a)), was a necessarily included offense of count 1, possession of a firearm after being convicted of a violent felony (§ 12021.1, subd. (a)), and he could not be convicted of both greater and lesser offenses. This court ordered the judgment modified to strike defendant's conviction for the lesser offense in count 2. This determination did not affect defendant's third strike sentence in count 1.
On October 7, 2004, the superior court conducted a hearing on remand and ordered count 2 stricken. It prepared an amended abstract of judgment, which showed that appellant was sentenced to the third strike term of 25 years to life for count 1, plus one year for a prior prison term enhancement; and the term imposed for count 3 was stayed.
PROPOSITION 36
"On November 6, 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of 2012 [the Act]," and it became effective the next day. (People v. Johnson (2015) 61 Cal.4th 674, 679-680.) Under the Act, as codified in section 1170.126, "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 felony conviction. [Citations.]" (People v. White (2014) 223 Cal.App.4th 512, 517 (White); § 1170.126, subd. (e).)
"Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria" that is set forth in section 1170.126, subdivision (d). (§ 1170.126, subd. (f).) "If the petitioner satisfies" the statutory criteria, "the petitioner shall be resentenced ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (Ibid.)
As relevant to this case, a conviction for being a felon in possession of a firearm does not automatically disqualify a petitioning inmate from resentencing under the Act. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1051-1057 (Blakely). Instead, the petitioner is ineligible for resentencing under the Act "if, inter alia, '[d]uring the commission of the current offense, the [petitioner] used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.' [Citations.]" (Id. at p. 1051, italics added; People v. Elder (2014) 227 Cal.App.4th 1308, 1312 (Elder); § 1170.120, subd. (e)(2); § 667, subd. (e)(2)(C)(iii); § 1170.12, subd. (c)(2)(C)(iii).)
PETITION FOR RECALL
On November 4, 2014, appellant filed a petition for recall of his third strike sentence pursuant to Proposition 36. Appellant argued he was eligible for resentencing because his conviction for being a felon in possession of a firearm was not a serious or violent felony.
Appellant acknowledged that being armed with a firearm rendered an inmate ineligible for resentencing. Appellant argued he was only convicted of simple possession, that offense was distinct from being armed with a firearm, and there was no evidence he was "armed."
Appellant requested the court take judicial notice of its own records and the following exhibits which he filed in support of his petition: the amended information in case No. BF100785A; the probation officer's report; the minute order reflecting his convictions; the abstract of judgment; and this court's unpublished opinion in People v. White, supra, F043434, as summarized above. The People's opposition
On November 6, 2014, the People filed opposition and argued appellant was ineligible for resentencing under Proposition 36 because he was "armed with a firearm" and had the firearms available for use.
In support of the opposition, the People submitted as exhibits the preliminary hearing transcript in appellant's case, and this court's unpublished opinion. The People also requested the court to take judicial notice of the trial transcript and any photographs in the court's own file, but did not attach these documents as exhibits.
The preliminary hearing transcript
As we will explain, the superior court denied appellant's petition and stated that it was relying on both the preliminary hearing transcript and the appellate opinion. We will thus review the testimony adduced at the preliminary hearing.
At the preliminary hearing, Paula Lee (Lee) testified she was staying with appellant at the Econo Lodge in Bakersfield, in the early morning hours of December 2, 2002. Lee's young children were with them. They arrived the previous evening. One other person named "Lajonda" also had access to the room.
Lee testified that the police called the room, but appellant did not leave after the first call. Lee told appellant that they should leave together. Appellant refused because he wanted to spend more time with Lee and the children. Lee testified that appellant eventually left the room with Lee and the children.
Lee testified that two firearms were on the bed when they walked out of the motel room.
"Q. Did you tell the officer after [appellant] had been taken into custody that those belonged to [appellant]?
"A. They belong to someone that owed us money.
"Q. Did you tell the officer that they belonged to [appellant]...?
"A. I can't recall everything I told the officer...."
Bakersfield Police Officer Thomas McBride testified he spoke to Lee after she left the motel room. "[Lee] had told me that [appellant] had had the - or had set the firearms down on the bed as they were exiting the room."
Officer McBride testified the officers found two handguns on the bed: a .38-caliber semiautomatic firearm, and a .38-caliber revolver. The guns were not loaded. McBride testified that appellant was searched after he was arrested, and the officers found several rounds of live ammunition in his pocket.
Officer McBride testified he advised appellant of the Miranda warnings. Appellant said he understood and waived his rights, and agreed to answer questions.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
"Q. And what did he tell you about the firearms that were located in the room?Appellant's reply to the People's opposition
"[McBride]. He had told me that they were his and that he had set them on the bed prior to leaving the room." (Italics added.)
On December 12, 2014, appellant filed a reply and challenged the People's interpretation of whether he was armed or in possession of a firearm. Appellant did not address Officer McBride's preliminary hearing testimony, that defendant admitted the guns belonged to him, or assert the court could not review the preliminary hearing transcript. Hearing on appellant's petition
On December 19, 2014, the superior court conducted a hearing on appellant's petition, stated it had reviewed the pleadings and exhibits, and it was going to rely on "the preliminary hearing transcript and the Court of Appeal's opinion." The parties did not object.
Appellant's counsel stated appellant was not armed because there was no evidence he brought firearms into the motel room. When he was informed about the firearms, he took affirmative steps to unload the guns and make them unavailable for use. He placed the guns on the bed so that they were in plain sight when the officers entered the room.
The prosecutor replied that it was not reasonable to believe appellant learned about the guns at the moment the police officers arrived, especially since he took steps to unload the weapons. "Clearly he was in possession of them. And as the Court pointed out, when he learned about the firearms, he could have walked out. He could have got rid of the firearms. He didn't. He kept them in the room with him. He was in possession of the firearms and it doesn't matter if ... it was loaded or not."
The court's ruling
The court denied appellant's petition and found he "was armed with a firearm in this particular set of facts and find that he's not eligible for resentencing so your petition is denied."
DISCUSSION
I. The Court Properly Denied Appellant's Petition
Appellant contends the superior court erroneously denied his petition for resentencing because there was no evidence he was "armed with a firearm." Appellant argues the court improperly relied on the preliminary hearing transcript when it denied his petition, particularly Officer McBride's testimony that appellant admitted the guns belonged to him. Appellant argues the court was required to review the trial transcript to determine whether he was "armed with a firearm" because his conviction resulted from a jury verdict. Appellant further notes that this court's appellate opinion does not recount McBride's testimony about appellant's admission. He further argues that the facts contained in this court's opinion fail to support a finding that he was armed since appellant and Lee testified that he did not know about the guns until he was about to surrender to the police, he briefly possessed the guns to unload them and leave them on the bed before he left the motel room, and he did not have them available for offensive or defensive use. Appellant contends the matter must be remanded for the superior court to consider the transcript of the jury trial to determine his eligibility for resentencing under the Act.
A. The petition
In filing a petition for recall under Proposition 36, the petitioning inmate has the initial burden of establishing eligibility, i.e., at a minimum, the requisite conviction and sentence set forth in section 1170.126, subdivision (e)(1). (§ 1170.126, subds. (b), (f).) The prosecution then has the opportunity to oppose the petition by establishing the petitioning inmate is ineligible for resentencing pursuant to the statutory grounds. (§ 1170.126, subd. (e); People v. Johnson (2016) 1 Cal.App.5th 953, 964-965.)
"Because a determination of eligibility under section 1170.126 does not implicate the Sixth Amendment, a trial court need only find the existence of a disqualifying factor by a preponderance of the evidence. [Citations.]" (People v. Osuna (2014) 225 Cal.App.4th 1020, 1040 (Osuna).) On appeal, we review the superior court's factual determination that appellant was armed with a firearm when he committed the offense of felon in possession of a firearm based on the substantial evidence standard. (People v. Hicks (2014) 231 Cal.App.4th 275, 286 (Hicks).)
Cf. People v. Arevalo (2016) 244 Cal.App.4th 836, 852-853 [superior court must find beyond a reasonable doubt the existence of a factor rendering defendant ineligible for resentencing under the Act; a petition for review was not filed], disagreed with by People v. Frierson (2016) 1 Cal.App.5th 788, 793-794 [Arevalo wrongly decided; preponderance of the evidence standard is applicable to prove defendant ineligible for resentencing under the Act], review granted Oct. 19, 2016, S236728.)
B. The record of conviction
Appellant's conviction for being a felon in possession of a firearm does not automatically disqualify him from resentencing under the Act unless he was "armed," i.e., he had the firearm available for offensive or defensive use. (Blakely, supra, 225 Cal.App.4th at pp. 1048, 1052; Osuna, supra, 225 Cal.App.4th at pp. 1031-1032.) "[W]hile the act of being armed with a firearm ... necessarily requires possession of the firearm, possession of a firearm does not necessarily require that the possessor be armed with it." (White, supra, 223 Cal.App.4th at p. 524.)
"The factual determination of whether the felon-in-possession offense was committed under circumstances that disqualify defendant from resentencing under the Act is analogous to the factual determination of whether a prior conviction was for a serious or violent felony under the three strikes law. Such factual determinations about prior convictions are made by the court based on the record of conviction. [Citation.]" (Hicks, supra, 231 Cal.App.4th at p. 286.)
It is well-settled that the record of conviction includes the preliminary hearing transcript (People v. Reed (1996) 13 Cal.4th 217, 224-229; People v. Trujillo (2006) 40 Cal.4th 165, 180; People v. Gonzales (2005) 131 Cal.App.4th 767, 773-775); the accusatory pleading and the transcript of a defendant's plea underlying the prior conviction (People v. Washington (2012) 210 Cal.App.4th 1042, 1045); the transcript of the defendant's jury trial (People v. Brimmer (2014) 230 Cal.App.4th 782, 800-801); and the appellate record, including both published and nonpublished appellate opinions (People v. Woodell (1998) 17 Cal.4th 448, 456-457; People v. Trujillo, supra, 40 Cal.4th at pp. 180-181; Elder, supra, 227 Cal.App.4th at p. 1317; Osuna, supra, 225 Cal.App.4th at p. 1030; Brimmer, supra, 230 Cal.App.4th at pp. 800-801; Hicks, supra, 231 Cal.App.4th at p. 286.)
C. Armed with a firearm
As explained above, a petitioning inmate is ineligible for resentencing under the Act "if, inter alia, '[d]uring the commission of the current offense, the [petitioner] used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.' [Citations.]" (Blakely, supra, 225 Cal.App.4th at p. 1051, italics added; § 1170.120, subd. (e)(2); § 667, subd. (e)(2)(C)(iii); § 1170.12, subd. (c)(2)(C)(iii); Elder, supra, 227 Cal.App.4th at p. 1312;.)
A finding that the defendant is armed with a firearm "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.] '[A] firearm that is available for use as a weapon creates the very real danger it will be used.' [Citation.] Therefore, '[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 in original; Blakely, supra, 225 Cal.App.4th at pp. 1051-1052; Osuna, supra, 225 Cal.App.4th at p. 1029.) The defendant is considered armed even if the weapon is inoperable or unloaded. (Brimmer, supra, 230 Cal.App.4th at p. 799.)
A third strike inmate "may be found to have been 'armed with a firearm' in the commission of his or her current offense, so as to be disqualified from resentencing under the Act, even if he or she did not carry the firearm on his or her person." (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 984-985, 992-993 [defendant had firearms available for immediate use and was armed when he was arrested in kitchen, and guns were found in adjacent bedroom and a closet]; People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011-1014 [defendant armed with a firearm when police searched his house while he stood in front doorway, and found loaded handgun in wife's purse located in bedroom]; Elder, supra, 227 Cal.App.4th at p. 1317 [defendant armed with a firearm when his apartment was searched while he was standing outside, and guns were found on shelf of entertainment center and in unlocked bedroom safe]; People v. Searle (1989) 213 Cal.App.3d 1091, 1095, 1099 [defendant was armed when he sold cocaine from his car, and a loaded gun was in an unlocked compartment in the back of his car]; People v. Wandick (1991) 227 Cal.App.3d 918, 921, 928 [defendant armed when police found him in a bedroom where one firearm was in a holster hanging on bedpost and another in closet drawer].)
D. Analysis
Appellant asserts he was not "armed" with a firearm based on the facts recited in this court's appellate opinion: he did not know the guns were in the motel room and, when he learned of their presence, he briefly took possession to unload them and leave them in plain view before he surrendered to the officers. This is the same argument which appellant presented to the jury at trial. Indeed, the jury may have had credibility problems with appellant's benign version of events, based on the factual statement contained in this court's opinion. Lee testified that the guns belonged to a friend, but she was impeached by her prior statement at the preliminary hearing, that she did not know who owned the guns. In addition, appellant realized that he should not possess any firearms because he claimed that he left the guns where the officers would see them, and told the police during one of his telephone conversations that there were weapons in the motel room. After he was arrested, however, appellant was asked if he had anything illegal and he said no, and failed to disclose that there were bullets in his pocket, further undermining the credibility of his account.
Based on the factual statement contained in this court's appellate opinion, we find substantial evidence to support the superior court's determination that appellant was armed with a firearm in this case. Appellant had stayed for a substantial period of time in a motel room, and there were two guns in that room. He had ready access to the guns and they were obviously available for use, either offensively or defensively. He apparently decided at the last moment to unload the guns and leave them in the motel room, but this decision was made after a delayed period where he refused to comply with an officer's orders to immediately vacate the room and surrender on a parole violation.
In addition to the facts contained in this court's opinion, the preliminary hearing transcript contains Officer McBride's testimony about his interrogation of appellant after he was arrested, and appellant admission that the guns belonged to him. This evidence further supports the determination that appellant was armed with a firearm.
Appellant argues the superior court improperly relied on the preliminary hearing transcript when it denied his petition. Appellant acknowledges, that the preliminary hearing transcript is part of the record of conviction. However, he argues that the superior court was required to review the entire transcript of his trial instead of the preliminary hearing because his convictions resulted from a jury verdict and not a plea. Appellant's argument is based on People v. Houck (1998) 66 Cal.App.4th 350 (Houck), which addressed the evidence required to prove whether a prior conviction was a serious or violent felony. In that case, the prosecution introduced the preliminary hearing transcript, plus certified copies of the amended information, verdicts, and judgment from the prior convictions. The court overruled the defendant's objections and relied on the preliminary hearing transcript to find the prior conviction was a serious felony and a strike. (Id. at pp. 353-355.)
Houck held the court improperly relied upon the preliminary hearing transcript under the circumstances:
"Considerations of reasonableness and fairness dictate that a 'record of conviction' include only those documents that reliably reflect the conduct of which a defendant was convicted. Because the prior conviction in this case resulted from a jury verdict, it is clear that the preliminary hearing transcript is not reliable as to what evidence was presented to, or relied on by, the jury in reaching its verdict. Further, the prosecution offers no explanation as to why use of this less reliable information is necessary or appropriate. Requiring that the prosecution produce evidence that was actually presented to the trier of fact is not unduly burdensome, promotes fairness and precludes the possibility that the underlying conduct will effectively be relitigated through the presentation of information that may not have been produced at trial. Because the preliminary hearing transcript is not necessarily an accurate reflection of what occurred at the trial, it is not part of the 'record of conviction' ...." (Houck, supra, 66 Cal.App.4th at pp. 356-357, italics added, fn. omitted.)
Houck noted it was not clear "whether the witnesses who testified at the preliminary hearing also testified at trial. Assuming that they did so, it is not established that the testimony was identical in both settings." (Houck, supra, 66 Cal.App.4th at p. 356 & fn. 1.) Houck rejected the People's argument that the defendant had the opportunity "to introduce evidence from the trial to establish that he did not use a deadly weapon in committing a crime," and concluded the prosecution improperly relied on the preliminary hearing transcript to establish the nature of the prior conviction "when more reliable evidence (i.e., the trial transcript) is available for that purpose." (Id. at p. 357.) It remanded the matter for another hearing on the prior strike conviction. (Id. at p. 358.)
Appellant contends that, as in Houck, this case must also be remanded because his conviction resulted from a jury trial and not a plea, the superior court did not review the transcript of his jury trial, and this court's nonpublished opinion does not recite the same admission as contained in the preliminary hearing transcript - that appellant admitted to the arresting officer that the guns belonged to him. This court's opinion, however, was limited to two narrow questions: whether the defense evidence supported a general instruction on the joint union of possession and intent, "i.e., a knowing, intentional exercise of control over the gun," and if defendant was convicted of both greater and lesser offenses as a matter of law. As to the first issue, this court's factual statement necessarily focused on the defense evidence that might have supported the instruction, and concluded that the court was not obliged to give it to the jury even under appellant's theory of the case.
We further note that in addressing this issue, this court stated that "[a]t trial, appellant and Lee testified for the first time that the guns belonged to the friend," and indicated Lee was impeached with her contrary testimony at the preliminary hearing. (Italics added.) This statement necessarily implies that appellant did not mention this fact prior to his trial testimony. Thus, we do not find any indication the trial evidence was inconsistent with the preliminary hearing testimony.
In addition, Houck addressed whether a felony was a strike for purposes of imposing punishment. In that situation, the defendant is entitled to greater protections than the instant case, where defendant seeks relief from a validly imposed sentence. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305-1306.)
Even aside from the preliminary hearing testimony, however, we conclude that the facts stated in this court's opinion support the superior court's finding that appellant was armed with a firearm and thus ineligible for resentencing under the Act.
II. Jury Trial
Appellant contends that he had a Sixth Amendment right to a jury trial on any fact that was not determined in his prior jury trial, such as being armed with a firearm, that would result him to serve a third strike term. As appellant recognizes, this argument has been repeatedly rejected. (Osuna, supra, 225 Cal.App.4th at p. 1038; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331; Elder, supra, 227 Cal.App.4th at pp. 1314-1315; White, supra, 223 Cal.App.4th at pp. 526-527.) As requested, we acknowledge appellant has preserved the issue for further review.
DISPOSITION
The superior court's denial of appellant's petition is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.