People v. Graves CA3

Filed 2/6/15 P. v. Graves CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C073359

v. (Super. Ct. No. 06F07694)

CHARLES GRAVES,

Defendant and Appellant.

A jury convicted defendant of possession of a firearm by a convicted felon. (Pen. Code, former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1)].)1 The trial court sentenced defendant to an indeterminate term of 25 years to life in prison based on his prior strike convictions. Defendant subsequently filed a petition for recall and resentencing pursuant to section 1170.126. The trial court denied the petition, ruling that defendant is ineligible

1 Undesignated statutory references are to the Penal Code.

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for resentencing because he was armed with a firearm during his most recent offense. The trial court denied defendant’s motion for reconsideration. Defendant now contends (1) the trial court erred in finding him ineligible for resentencing based on facts outside the record of conviction, and (2) he is entitled to a jury trial on whether he was armed with a firearm during the commission of the most recent offense. Finding no merit in defendant’s contentions, we will affirm the order denying the petition for recall and resentencing. BACKGROUND According to the facts referenced by the trial court in its order denying the petition for recall and resentencing, at about 2:00 a.m. one morning, defendant either took a gun to a friend’s house and pointed it at a woman he believed cheated him in a drug transaction, or he confronted the woman unarmed, but then, during a scuffle with an armed man who responded to her screaming, took the man’s gun and carried it outside where the gun went off during a confrontation with his friend. The trial court determined that defendant was ineligible for resentencing because he admitted possessing the gun that morning and the jury rejected his defense that the possession was transitory. In response to a petition for reconsideration, the trial court made a correction to its initial ruling and explained why there was no right to a new jury trial to determine whether defendant was armed. DISCUSSION I Defendant contends the trial court erred in finding him ineligible for resentencing based on facts outside the record of conviction. The Three Strikes Reform Act (the Act) was approved by the voters as Proposition 36 in November 2012; it amended Penal Code sections 667 and 1170.12 and added section 1170.126, changing the requirements for sentencing a third strike offender.