People v. Soto CA2/3

Filed 7/17/14 P. v. Soto CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B249197

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA044520) v.

ABELARDO SOTO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Cheryl Lutz, under appointment by the Court of Appeal, for Defendant and Appellant. Steven Graff Levine as Amicus Curiae for Defendant and Appellant. Michael Stone Romano for Stanford Law School Three Strikes Project as Amicus Curiae on behalf of Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, Kimberley J. Baker-Guillemet and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent. Jackie Lacey, District Attorney, Beth L. Widmark and Matthew Aaron Brown, Deputy District Attorneys, as Amicus Curiae on behalf of Plaintiff and Respondent.

Appellant Abelardo Soto filed a petition to recall his sentence pursuant to the provisions of Penal Code section 1170.126, which was enacted by Proposition 36 in 2012.1 The gist of the reform enacted by Proposition 36 was to limit sentences of 25 years to life to those defendants who are (or were) convicted of serious or violent felonies. The trial court denied appellant’s petition on the ground that he was ineligible because his current offense fell under subdivision (e)(2)(C)(iii) of section 667. The operative part of subdivision (e)(2)(C)(iii) is clause (iii) which disqualifies a defendant from resentencing 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.” We affirm. PROCEDURAL HISTORY Appellant was convicted on March 4, 1998 of possession of a controlled substance (count 1; Health & Saf. Code, § 11350); transportation of a controlled substance (count 2; Health Saf. Code, § 11352, subd. (a)); and possession of a firearm by a felon (count 3; former § 12021, subd. (a)). The jury found true the allegation that in the commission of count 2 appellant was personally armed with a firearm. Appellant admitted two prior robbery convictions. Appellant was sentenced on count 1 to 25 years to life, plus three years for a firearm enhancement; on count 2 to an identical term but stayed under section 654; on count 3 to a concurrent term of 25 years to life. In the appeal from this conviction, appellant contended that count 1 had been improperly enhanced, a point that was conceded by the Attorney General. This court agreed and remanded for resentencing, noting that the trial court might decide to impose a 25 years to life sentence on count 1. The trial court did just that and struck the enhancement of count 1. The sentences on counts 2 and 3 were the same as those that had been originally imposed, i.e., the sentence on count 2 was again stayed under section 654.