People v. Esparza CA5

California Court of Appeal Nov 13, 2014 No. F068056Unpublished

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Holding. The court held that a defendant convicted of being a felon in possession of a firearm is ineligible for resentencing under the Three Strikes Reform Act if the trial court determines, based on the record of conviction, that the defendant was armed with a firearm during the commission of the offense.

Issues

Whether a defendant is entitled to a jury trial to determine eligibility for resentencing under the Three Strikes Reform Act.
Whether a 'tethering' or 'anchoring' felony is required for a defendant to be considered 'armed with a firearm' under the Act.
Whether the trial court properly determined the defendant was armed with a firearm during the commission of his offense based on the record of conviction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The trial court’s determination in the section 1170.126 proceeding that defendant was armed with a firearm during the commission of his current offense did not increase the penalty to which defendant was already subject”

“the trial court properly found defendant disqualified from resentencing as a second strike offender because he was armed with a firearm during the commission of his current offense.”

Filed 11/13/14 P. v. Esparza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F068056 Plaintiff and Respondent, (Super. Ct. No. 1006228) v.

DAVID TORREZ ESPARZA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Detjen, J. and Peña, J.

INTRODUCTION “On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act).[1] The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.) On June 13, 2013, David Torrez Esparza (defendant), an inmate serving a term of 25 years to life in prison following conviction of a felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a “NOTICE OF PETITION FOR ELIGIBILITY DETERMINATION UNDER PENAL CODE SECTION 1170.126” and request for recall of sentencing, seeking resentencing under the Act. The trial court determined defendant did not qualify (was ineligible) for resentencing and denied the petition. Defendant now appeals. We affirm.

People v. Esparza CA5

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