People v. Falcon CA2/1

Filed 10/2/15 P. v. Falcon CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B260598

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA226525) v.

JUAN ANTONIO FALCON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Affirmed. California Appellate Project, Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie C. Brenan and Toni R. Johns Estaville, Deputy Attorneys General, for Plaintiff and Respondent. ________________________________

Juan Antonio Falcon appeals from an order denying his petition for resentencing pursuant to Proposition 36 (Pen. Code, § 1170.126)1 to reduce his “Three Strikes” sentence. We affirm the order of the trial court. All of Falcon’s convictions for assaulting a peace officer were serious felonies, and he is ineligible for resentencing under Proposition 36. FACTS AND PROCEEDINGS BELOW In two separate incidents in 2001, while Falcon was in custody for an earlier offense, he participated in attacks on sheriff’s deputies. During one of those attacks, he used a prison-made knife. On two other occasions, deputies found him in possession of a jail-made weapon. A jury convicted him of four counts of assault on a peace officer in violation of section 245, subdivision (c), along with three counts of possession of a weapon while in custody in a penal institution, in violation of section 4502, subdivision (a). Because Falcon had two previous strike convictions, the court sentenced him under the Three Strikes law (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)) to seven consecutive 25-year-to-life terms, plus a five-year enhancement, for a total of 180 years to life in prison. In December 2013, Falcon petitioned for resentencing pursuant to Proposition 36, contending that his convictions were not for serious or violent felonies. The court denied his petition, concluding that he was ineligible for resentencing because one of his assault convictions involved the use of a deadly weapon and was therefore a serious felony pursuant to section 1192.7(c). This appeal followed.