People v. Garcia CA3

Filed 1/30/15 P. v. Garcia CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE,

Plaintiff and Respondent, C075069

v. (Super. Ct. No. CRF10491)

GEORGE ISEQUIEL GARCIA,

Defendant and Appellant.

Defendant George Isequiel Garcia filed a petition for resentencing in the trial court pursuant to Penal Code section 1170.126.1 Section 1170.126 was added pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (the Act). The trial court denied defendant’s petition. The trial court determined that defendant is ineligible for resentencing because he was armed with a firearm during the commission of his most

1 Undesignated statutory references are to the Penal Code.

1

recent offense (possession of a firearm by a convicted felon). The trial court also denied the petition based on defendant’s dangerousness. Defendant now contends (1) the trial court erred in finding him ineligible for resentencing; (2) defendant was entitled to automatic nondiscretionary resentencing under section 1170.12 based on principles of retroactivity; and (3) the trial court denied defendant a fair hearing on whether resentencing would pose an unreasonable risk to public safety. We conclude (1) the record of conviction for possession of a firearm by a convicted felon supports the trial court’s determination that defendant was armed with a firearm during the commission of the offense, thereby rendering defendant ineligible for resentencing under section 1170.126; (2) defendant is not entitled to automatic nondiscretionary resentencing because section 1170.126 is the equivalent of a “saving clause” that defeats the presumption of retroactivity; and (3) any error in making the alternative finding of dangerousness was harmless. We will affirm the trial court’s order denying the petition for recall and resentencing. BACKGROUND A Marysville police officer stopped defendant on September 19, 2010, for driving with expired registration tags. Because the car registration had expired more than six months before the traffic stop, the officer advised defendant the car would be towed and directed defendant to retrieve his belongings. Defendant removed a long brown wallet from the car. The officer subsequently removed a loaded gun from the trunk of the car, and a search of defendant found a methamphetamine pipe in one of defendant’s pockets and a loaded pistol in his wallet. Following a court trial, the trial court convicted defendant on possession of a firearm by a convicted felon (former § 12021, subd. (a)(1), now § 29800 -- counts 1 and 2), possession of ammunition by a convicted felon (former § 12316, subd. (b)(1), now