California Court of Appeal Mar 3, 2015 No. E061300Unpublished
Filed 3/3/15 P. v. Marrero CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061300
v. (Super.Ct.No. FSB033368)
PEDRO JOSE MARRERO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Pedro Jose Marrero, who is currently serving a three
strikes sentence of 131 years to life, petitioned the trial court for recall of his sentence
pursuant to Proposition 36, known as the Three Strikes Reform Act of 2012 (hereafter the
of robbery. The People argue that: (1) defendant’s serious felony convictions of robbery
render him entirely ineligible for resentencing under the Act; and (2) even if defendant’s
serious felony convictions do not render him ineligible for resentencing on his three
strikes sentence for possession of methamphetamine, he is nevertheless ineligible for
recall and resentencing under section 1170.126, subdivision (e)(2), on his nonserious and
nonviolent felony conviction because he used a firearm during the commission of his
commitment offense. We affirm.
1 All further statutory references will be to the Penal Code, unless otherwise noted.
2
PROCEDURAL BACKGROUND
A jury convicted defendant of three counts of second degree robbery (§ 211,
counts 1-3) and one count of possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a), count 4). The jury also found true the allegations that defendant
personally used a handgun during two of the robberies and a knife during the other
robbery (§§ 12022.53, subd. (b), & 12022, subd. (b)(1)), and that he had two prior serious
felony convictions (§ 667, subd. (a)(1)). Following a bifurcated trial on defendant’s
priors, the trial court found that he had two prior strike convictions. (§§ 1170.12,
subds. (a)-(d) & 667, subds. (b)-(i).) On September 12, 2003, the court denied
defendant’s motion to dismiss one or more of his prior strike convictions pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).2 It then sentenced
him to a total state prison term of 131 years to life, consisting of consecutive 25 year-to-
life terms on the robbery and possession of methamphetamine counts, plus 21 years for
the weapon use enhancements, and 10 years for the serious felony enhancements.
On May 5, 2014, defendant filed a petition for resentencing under section
1170.126. The court denied the petition since defendant’s current commitment offenses
included three counts of robbery and since he used a firearm in the commission of the
offense(s), which made him ineligible for resentencing. (§ 1170.126, subd. (e).)
2 We note that the record on appeal does not contain a minute order reflecting the court’s finding that defendant had two prior strikes. However, in light of defendant’s Romero motion, we assume the court made such finding.
3
ANALYSIS
The Court Properly Found That Defendant Was Ineligible for Resentencing
Defendant essentially contends that, in determining his eligibility for resentencing,
the court should have only considered his conviction for possession of methamphetamine
and not his robbery convictions. He asserts that possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)) is neither a serious felony under section 1192.7,
subdivision (c), nor a violent felony under section 667.5, subdivision (c). In other words,
defendant claims he should be allowed to be resentenced on a single count under section
1170.126.3 We disagree.
Proposition 36 amended the three strikes law (§§ 667, 1170.12) to require that
before a defendant may be sentenced to an indeterminate life term in prison under the
three strikes law, the new felony (the commitment offense) must generally qualify as a
serious or violent felony. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(C).) An
exception to this general rule exists, among others, where the prosecution has pled and
proved the defendant used a firearm in the commission of the current offense, was armed
with a firearm or deadly weapon, or intended to cause great bodily injury to another.
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) If the prosecution pleads and
proves that this exception exists, the defendant must be sentenced under the three strikes
law.
3 We note that this issue is currently pending before the California Supreme Court. (Braziel v. Superior Court, review granted July 30, 2014, S218503; People v. Machado, review granted July 30, 2014, S219819.)
4
Proposition 36 also added section 1170.126, which sets forth a procedure through
which certain prisoners can petition the court for resentencing. Such a person may file a
petition to recall his or her sentence and be sentenced as a second strike offender.
(§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if none of his or her
commitment offenses constitute serious or violent felonies and none of enumerated
factors disqualifying a defendant for resentencing under Proposition 36 apply.
(§ 1170.126, subd. (e).) Section 1170.126, subdivision (a), provides that the resentencing
provisions “apply exclusively to persons presently serving an indeterminate term of
imprisonment . . . whose sentence under this act would not have been an indeterminate
life sentence.” A person who committed at least one serious and/or violent felony would
receive an indeterminate term of imprisonment under the Act. Thus, the language of
section 1170.126 indicates that a defendant is ineligible for resentencing if any of the
offenses for which he is serving an indeterminate prison term is a serious and/or violent
felony, even if one of the offenses is not a serious and/or violent felony. Furthermore, in
submitting a petition for recall of sentence, a defendant must “specify all of the currently
charged felonies, which resulted in the sentence under paragraph (2) of subdivision (e) of
Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, or both, . . .”
(§ 1170.126, subd. (d).) The fact that the statute requires the petitioner to list all of the
currently charged felonies resulting in an indeterminate life sentence supports the
conclusion that the court must consider all of the current felonies in determining
eligibility for recall of sentence.
5
Here, defendant was required to list all of his offenses that resulted in his life
sentence in his petition. (§ 1170.126, subd. (d).) He properly did so and listed his
convictions for robbery (§ 211) and possession of a controlled substance. (Health & Saf.
Code, § 11377, subd, (a).) Consequently, the court considered all of these felonies in
determining his eligibility for resentencing. Defendant’s convictions for robbery
rendered him ineligible for sentencing under section 1170.126, subdivision (e)(1). (§§
1192.7, subd. (c)(19) and 667.5, subd. (c)(9).) Thus, the court properly denied his
petition for resentencing.
In the alternative, we agree with the People’s argument that defendant is ineligible
for resentencing under section 1170.126, subdivision (e)(2), because his sentence was
imposed, in part, for offenses in which he used a firearm.
As pertinent here, section 1170.126, subdivision (e)(2), provides that a defendant
is eligible for resentencing if “[t]he inmate’s current sentence was not imposed for any of
the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (Italics
added.) Using a firearm during the commission of a current offense is listed in section
667, subdivision (e)(2)(C)(iii), and section 1170.12, subdivision (c)(2)(C)(iii). It was
pleaded and proved that defendant used a firearm during the commission of two of the
robbery counts. As such, under section 1170.126, subdivision (e)(2), defendant was
ineligible for resentencing based on the fact that he used a firearm during the commission
6
of two of his current commitment offenses. This conclusion is consistent with the
purposes of the Act. The Act “is intended to provide resentencing relief to low-risk,
nonviolent inmates serving life sentences for petty crimes, such as shoplifting and simple
drug possession.” (People v. White (2014) 223 Cal.App.4th 512, 526.) Based on
defendant’s record, he is not a “low-risk, nonviolent inmate[] serving life sentences for
petty crimes.” (Ibid.)
We conclude that the court properly denied defendant’s petition for resentencing.