People v. Napoleon CA5

Filed 10/28/15 P. v. Napoleon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069193 Plaintiff and Respondent, (Super. Ct. No. 1057573) v.

LORENZO LYNN NAPOLEON, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Smith, J.

INTRODUCTION The Three Strikes Reform Act of 2012 (Proposition 36) permits third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies to petition for resentencing. (Pen. Code,1 § 1170.126 et seq.) If a petitioning offender satisfies the statute’s eligibility criteria, he is resentenced as a second strike offender “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Following the enactment of Proposition 36, defendant Lorenzo Lynn Napoleon, filed a petition for resentencing. The superior court, however, determined defendant was statutorily ineligible for resentencing and denied the petition. On appeal, defendant contends (1) his conviction for felon in possession of a firearm did not disqualify him from resentencing, as he was not armed with the firearm during the commission of the offense, (2) a conviction for felon in possession of a firearm cannot disqualify an inmate from resentencing in the absence of an underlying felony to which the firearm possession is tethered, and (3) the People failed to plead and prove defendant’s felon in possession of a firearm charge at resentencing. We reject these arguments and affirm the order. FACTS2 On May 6, 2003, a Modesto police officer attempted to initiate a traffic stop on defendant for failing to yield at a red light. Defendant refused to pull his vehicle over, however, and fled until crashing his car into a tree. Defendant then attempted to escape on foot, but was apprehended shortly thereafter. Police recovered a sawed-off, 12-gauge shotgun lying on the passenger’s seat of defendant’s vehicle.