People v. Brady CA2/1

Filed 10/30/15 P. v. Brady CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B262293

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA025982) v.

PATRICK JOHN BRADY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. 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, Senior Assistant Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. ——————————

Patrick Brady appeals from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36, approved by the voters on November 6, 2012, amending Penal Code sections 667 and 1170.12,1 and adding section 1170.126 (the Act). (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1010.) He contends the trial court erred when it found him ineligible because he was armed with a firearm during the commission of his final strike offense in 1997, a conviction of unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)). We find no error and affirm. In our unpublished opinion affirming Brady’s conviction and sentence, we summarized the facts as follows: “On the morning of September 12, 1995, Detective Kris Nelson and other officers of the Long Beach Police Department were conducting a surveillance in an alley behind an apartment building. They were awaiting the return of a black BMW containing two men and a woman. When the BMW returned and stopped, its occupants were ordered out of the vehicle. Defendant, who was one of the occupants, told Detective Nelson he had a gun in his waistband. Detective Nelson removed a loaded revolver from defendant’s waistband.” (People v. Brady (March 30, 1998, B115543) [nonpub. opn.].) The court convicted Brady of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and found true allegations that Brady had two prior serious or violent felony convictions, sentencing him to 25 years to life in state prison under the “Three Strikes” law. Brady petitioned for a recall of his sentence, and the trial court filed an order to show cause why relief should not be granted. The district attorney filed an opposition arguing Brady was ineligible for resentencing because he was armed with a firearm at the time of his commitment offense. (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii); 1170.126, subd. (e)(2).) Brady filed a reply arguing that felon in possession of a firearm must be tethered to another offense before the crime renders a