People v. Ross CA3

Filed 2/25/15 P. v. Ross CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo)

THE PEOPLE, C075990

Plaintiff and Respondent, (Super. Ct. No. CRF 95274301) v.

TIMOTHY ROBERT ROSS,

Defendant and Appellant.

Defendant Timothy Robert Ross appeals from the trial court’s orders denying his petition for resentencing pursuant to Penal Code section 1170.1261 because he was armed during the commission of his current offense. He contends the prosecution was required to plead and prove any fact disqualifying him from resentencing. We shall affirm the trial court’s orders. BACKGROUND The facts of defendant’s current offense are taken from the preliminary hearing, which formed the factual basis of his guilty plea.

1 Undesignated statutory references are to the Penal Code.

1

On November 5, 1994, defendant entered a West Sacramento Circle K and pointed a silver revolver at the store clerk. The clerk gave about $60 cash to defendant, who then left on foot. Defendant pleaded guilty to grand theft from a person (§ 487, subd. (c)) and admitted two strike allegations. The trial court sentenced him to 25 years to life. In December 2012, defendant filed a pro se petition for resentencing pursuant to section 1170.126. Defendant was appointed counsel, who filed a second petition for resentencing in August 2013. The trial court found defendant eligible for resentencing pending a determination of the section 1170.126 danger to public safety issue. Following the People’s motion for reconsideration, the trial court determined defendant was ineligible for resentencing because he was armed with a firearm during the commission of the current offense. DISCUSSION Defendant contends the trial court erred in finding him ineligible for resentencing based on facts that were neither pled nor proven. Section 1170.126 allows defendants serving a life term for a third strike to petition for resentencing. (§ 1170.126, subd. (b).) Eligibility for resentencing is initially limited to defendants serving life terms for felonies that are neither serious nor violent. (§ 1170.126, subd. (e)(1).) Other factors can render a defendant ineligible for resentencing. One of the disqualifying factors, as cross-referenced in section 1170.126, subdivision (e)(2), renders an offense ineligible for recall of sentence if “[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” (§ 667, subd. (e)(2)(C)(iii).) Defendant notes that while section 1170.126 does not define the term “armed with a firearm or deadly weapon,” the phrase, “during the commission of the current offense . . . [defendant] was armed with a firearm or deadly weapon,” is found in the