People v. Navas CA3

Filed 3/26/15 P. v. Navas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C075401

Plaintiff and Respondent, (Super. Ct. No. 97F07686)

v.

JOSE FRANCISCO NAVAS,

Defendant and Appellant.

Defendant Jose Francisco Navas appeals from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1170.126.1 He contends the trial court erred in finding him ineligible for resentencing based on facts that were not pled or proved and that the finding that he was armed during the offense required a tethering offense. We shall affirm the trial court’s order.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND We take the facts of defendant’s current crime from our opinion affirming his conviction. (See People v. Guilford (2014) 228 Cal.App.4th 651, 660-661 [prior appellate opinion admissible to prove ineligibility in section 1170.126 proceeding].) In September 1997, Gregory Bowen walked up to the drive-through window of a fast-food restaurant to place an order. At about the same time, a truck driven by defendant pulled up to the window. Defendant got out of the truck, grabbed Bowen by the neck, put a gun to his head, and demanded an apology. Defendant quickly returned to his truck and left. Workers at the fast-food restaurant were able to write down part of the license plate number on defendant’s truck, and the police went to the address where the truck was registered. When the police arrived, defendant was walking out of the house. When defendant surrendered to police he had a pocket full of .45 caliber bullets and a search of the home produced a .45 caliber semi-automatic pistol and a loaded sawed-off shotgun. Defendant pleaded guilty to felon in possession of a firearm (former § 12021, subd. (a)) and admitted two prior strikes. As part of the plea agreement, the prosecution agreed to dismiss additional weapons charges as well as an assault with a firearm charge (§ 245, subd. (b)) with a People v. Harvey (1979) 25 Cal.3d 754 waiver. The trial court denied defendant’s motion to dismiss one or more of the prior strikes and sentenced him to 25 years to life. We affirmed the conviction in November 1999. Defendant filed a petition for resentencing pursuant to section 1170.126 in November 2012. Following additional briefing and a hearing, the trial court denied the petition, finding defendant was ineligible for resentencing because he was armed during the commission of his current offense.