People v. Cook CA3

Filed 4/1/15 P. v. Cook CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C073548

Plaintiff and Respondent, (Super. Ct. No. 03F02471)

v.

DONALD KENDRICKS COOK,

Defendant and Appellant.

In 2012 voters approved Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act). Prior to the Reform Act, a defendant convicted of two prior serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a third felony. (Pen. Code, §§ 667, subds.(b)-(i), 1170.12)1 Under the Reform Act, a defendant convicted of two prior serious or violent felonies is now subject to the 25-year-to-life sentence only if, with some exceptions, the third felony is itself a serious or violent felony. Prisoners who are currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may petition the court for resentencing. (§1170.126.) As is relevant here, a prisoner is not eligible for

1 Further statutory references to sections of an undesignated code are to the Penal Code.

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resentencing if he or she was armed with a firearm during the commission of the third felony. (§§ 667, subd. (e)(2)(C)(iii), 1170.126, subd. (e)(2).) In 2004, a jury convicted defendant Donald Kendricks Cook of being a felon in possession of a firearm in violation of former section 12021, subdivision (a)(1) (now § 29800) and sentenced him to state prison for a term of 25 years to life under the “Three Strikes” law. Following passage of the Reform Act defendant filed a petition to recall his sentence. The trial court ruled him ineligible for recall of sentence on the ground he had been armed with a firearm during the commission of his violation of former section 12021, subdivision (a)(1). On appeal from the denial of his petition, defendant argues that the recall of his sentence was not disqualified under the Reform Act unless the prosecution pleaded and proved at trial that he was armed during the commission of the offense, and that being a felon in possession of a firearm is not the equivalent of being armed with a firearm because there is no underlying criminal act to which the arming attaches. We find no merit to defendant’s arguments. FACTUAL AND PROCEDURAL BACKGROUND The pertinent facts underlying defendant’s most recent conviction were summarized by this court in defendant’s appeal from his conviction. As stated in this court’s written opinion: “Police went to defendant’s girlfriend’s home on the afternoon of March 19, 2003, in response to a call of domestic violence involving a possibly armed suspect. Defendant’s girlfriend answered the door and appeared to be upset. She asked the officers to get defendant out of her house. Police found defendant lying face up with his eyes closed on a bed in his girlfriend’s daughter’s bedroom, apparently sleeping. A loaded .357 magnum was within his reach on top of a television tray.” (People v. Cook (Apr. 4, 2005, C074705) [nonpub. opn.].) Defendant received a 25-year-to-life sentence pursuant to the Three Strikes law (§ 667, subd. (e)(2)(A)(ii)). The Reform Act passed in 2012, which “amended the Three