People v. Eaton CA3

Filed 5/19/15 P. v. Eaton CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C074520

v. (Super. Ct. No. 95F05466)

RUBEN EATON, JR.,

Defendant and Appellant.

Defendant Ruben Eaton, Jr., filed a petition for recall and resentencing under Penal Code section 1170.126.1 The trial court denied the petition, determining that defendant is ineligible for resentencing because he was armed with a deadly weapon during his most recent offense.

1 Undesignated statutory references are to the Penal Code.

1

Defendant now contends (1) he was entitled to an evidentiary hearing on his petition for recall and resentencing , and (2) he is not ineligible for resentencing because an arming allegation was not pleaded and proved in the underlying case. Finding no merit in defendant’s contentions, we will affirm the order denying the petition for recall and resentencing. BACKGROUND We take the facts from the record of defendant’s most recent conviction. (People v. Trujillo (2006) 40 Cal.4th 165, 180-181.) A police officer testified at trial that he searched defendant’s pockets when he arrested him on June 7, 1995, discovering several baggies containing methamphetamine, a pouch with a hypodermic syringe, and a knife with a “five, almost a six-inch blade.” The officer said the blade poked out of defendant’s pants pocket but was concealed by an oversized shirt. A jury found defendant guilty of possessing methamphetamine and cocaine and also of violating section 12020, subdivision (a), by “carrying concealed upon his person a dirk or dagger.” The trial court instructed the jury that the words dirk and dagger are synonyms referring to “any knife or other instrument with or without a handguard that is primarily designed or constructed to be a stabbing instrument designed to inflict great bodily injury or death.” The trial court determined that defendant had two prior felony convictions (for a robbery in 1986 and for firing a weapon at a vehicle in 1992) and that his sentence was subject to the “three strikes” provisions of sections 667 and 1170.12. The trial court sentenced defendant to 25 years to life in prison. In early 2013, defendant filed a petition for recall and resentencing under the Three Strikes Reform Act of 2012. The trial court denied the petition, determining that defendant is ineligible for resentencing because he was armed with a deadly weapon during his most recent offense. The trial court denied defendant’s motion for reconsideration.