People v. Garateix CA4/3

Filed 10/10/14 P. v. Garateix CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G048895

v. (Super. Ct. No. 95SF0848)

JOSEPH GARATEIX, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Robert R. Fitzgerald. (Retired judge the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant is currently serving a sentence of 25 years to life under the Three Strikes law. He contends the trial court erred in denying his motion to recall his sentence and resentence him under Proposition 36. However, because appellant was armed with a firearm during his commitment offense, he is not eligible for resentencing. We therefore affirm the trial court’s ruling. FACTS AND PROCEDURAL BACKGROUND1 In 1995, the police received a tip appellant, a parolee, was selling narcotics. The informant alleged appellant always had a gun visible when he was dealing drugs. The police decided to contact appellant at his residence, and when they did, appellant let them inside to search his apartment. During the search, appellant directed the officers to a dresser drawer in his room. Inside the drawer, on top of appellant’s underwear, was a loaded pistol. Appellant initially claimed the gun belonged to his girlfriend, but then admitted it was his. In the course of the search, the police also found marijuana, methamphetamine and a hypodermic needle, but appellant was not charged with possessing those items. Rather, he was simply charged with being a felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a).2 Following a jury trial, appellant was convicted of that charge. He was also found to have suffered three prior strike convictions and served two prior prison terms. The trial court sentenced him to 25 years to life in prison under the Three Strikes law. (§§ 667, subds. (d), (e)(2) & 1170.12, subds. (b), (c)(1).) The judgment was affirmed on appeal in 1999. (See People v. Garateix (Aug. 18, 1999, G023379) [nonpub. opn.].) In 2012, the voters approved Proposition 36, which changed the Three Strikes law by amending sections 667 and 1170.12 and adding section 1170.126. As