California Court of Appeal Dec 11, 2013 No. E059014Unpublished
Filed 12/11/13 P. v. Burroughs CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059014
v. (Super.Ct.No. FSB023644)
MICHAEL L. BURROUGHS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Steven A. Brody, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Michael L. Burroughs filed a notice of appeal after the
trial court denied his petition for recall of sentence and resentencing under the Three
Strikes Reform Act of 2012 (Proposition 36). We affirm.
FACTS AND PROCEDURAL HISTORY
In August 2000, defendant was arrested when he sold drugs (a small piece of
Upon defendant’s appeal, and on his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d
493], setting forth a statement of the case, and identifying one potential arguable issue:
whether defendant’s present conviction rendered him ineligible for resentencing under
Proposition 36. Counsel also requested this court to undertake a review of the entire
record. Defendant has been offered the opportunity to file a personal supplemental brief,
which he has not done.
Under the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have reviewed
the record independently, and found no arguable issues.
3
One of defendant’s current offenses was a conviction of Health and Safety Code
section 11370.1, possession of cocaine or cocaine base while armed with a loaded,
operable firearm. Penal Code section 667, subdivision (e)(2) provides, with respect to
three strikes sentencing after the enactment of Proposition 36, that if the current (third
strike) offense is not a serious or violent felony, the sentence for the new offense shall be
doubled (as if for a second strike), unless it has been pleaded and proved that certain
disqualifying circumstances exist. One of the disqualifying circumstances is that “(iii)
During 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.” (Pen. Code, § 667, subd. (e)(2)(C)(iii).) Because it was pleaded and proved, as
part of defendant’s conviction under Health and Safety Code section 11370.1, that he was
armed with a loaded firearm, he was statutorily ineligible for treatment as a second-
striker. (Pen. Code, § 1170.126, subd. (e)(2); see also People v. Singh (2004) 119
Cal.App.4th 905, 912 [analyzing Health & Saf. Code, § 11370.1, subd. (a) in the same
manner as Pen. Code, § 12022, subd. (c), because of the similarity in the statutory
language of being “armed” with a deadly weapon].)
The trial court properly denied defendant’s petition for resentencing under
Proposition 36.
4
DISPOSITION
The order denying defendant’s petition for recall of sentence and resentencing is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
HOLLENHORST Acting P. J.
KING J.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was ineligible for resentencing under the Three Strikes Reform Act because his conviction for possession of a controlled substance while armed with a firearm constituted a disqualifying factor.
Issues
Whether the defendant's conviction for possession of a controlled substance while armed with a firearm rendered him ineligible for resentencing under Proposition 36.