People v. Mouton CA5

Filed 11/20/14 P. v. Mouton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F067426 Plaintiff and Respondent, (Super. Ct. No. CF94518171) v.

JUNIUS DURAN MOUTON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Michael Satris, 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 Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

PROCEEDINGS Appellant, Junius Duran Mouton, was found guilty at the conclusion of a jury trial on December 20, 1994, of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a) [subsequently reenacted as Pen. Code, § 29800, subd. (a), count one)1 and possession of cocaine (Health & Saf. Code, § 11350, count two). Because appellant had two prior serious felony convictions within the meaning of the three strikes law, the trial court sentenced him to two concurrent sentences of 25 years to life. On November 6, 2012, the electorate passed Proposition 36, amending the three strikes law to permit the recall of some sentences imposed under the three strikes law pursuant to newly codified section 1170.126. On November 9, 2012, appellant filed a petition to recall his sentence pursuant section 1170.126. On November 27, 2012, the trial court made a preliminary finding that appellant may be eligible for resentencing and appointed counsel for appellant. On February 22, 2013, the prosecutor filed a brief arguing that appellant was statutorily ineligible for resentencing. The trial court ordered further briefing on whether a prisoner serving a three-strike term for being a felon in possession of a firearm is eligible for resentencing under section 1170.126. On March 1, 2013, appellant filed his response. At the conclusion of a hearing on May 10, 2013, the trial court found appellant categorically ineligible for resentencing and denied his petition to recall the sentence. The court denied appellant’s motion for reconsideration on June 7, 2013. Appellant contends the trial court erred in denying his petition to recall the sentence. We affirm the trial court’s ruling.