People v. Quinones

Filed 8/11/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C074081

Plaintiff and Respondent, (Super. Ct. No. SC060639A)

v.

HUMBERTO QUINONES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Joaquin County, Richard J. Guiliani, Jr., Judge. Affirmed.

Hilda Scheib, 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, Eric L. Christoffersen, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

1

In this case we consider whether an arming enhancement--found true by the jury but dismissed for sentencing purposes at defendant Humberto Quinones’s original 1996 sentencing hearing--may be used to disqualify him for resentencing under Proposition 36. We conclude the answer is yes, and affirm the order denying his petition to recall his sentence under Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, 1170.12, 1170.126,1 Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012) (the Act)). BACKGROUND A jury convicted defendant of two counts of possession for sale of heroin, one count of transportation of a controlled substance, and possession by a convicted felon of a firearm, and found he was personally armed with a firearm during the drug offenses, and had two prior strike convictions for two 1981 robberies. (§§ 211, 667, subd. (d), 1170.12, 12022, subd. (c), Health & Saf. Code, §§ 11351, 11352.) Defendant was found by peace officers with a loaded handgun in his waistband, while in possession of 80 doses of heroin, and a search of his home revealed an additional 1,500 doses of heroin. The sentencing judge struck the arming allegation “at this time as being unnecessary” but imposed a sentence on the felon-in-possession charge, noting “this was a pistol in this case, which was in his possession at the time” of the drug offenses. He sentenced defendant to an unstayed term of 75 years to life. We affirmed the judgment on direct appeal. (People v. Quinones (June 12, 1998, No. C025435) [nonpub. opn.].) On January 25, 2013, defendant filed the instant petition, alleging his current felonies were not serious or violent. Regarding the arming allegation, he argued that the sentencing judge “did not just strike the punishment; rather, it struck the enhancement allegations completely.” Thus, in his view, the arming allegation was not part of his record of conviction and he was eligible under the Act. The People opposed the motion, arguing the arming allegation had been found true beyond a reasonable doubt by the jury,