People v. Vasquez CA5

Filed 12/1/15 P. v. Vasquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068959 Plaintiff and Respondent, (Super. Ct. No. MCR13764) v.

JESUS MANUEL VASQUEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Ivan P. Marks and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, 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, § 1170.126 et seq.) 1 If a petitioning offender satisfies the statute’s eligibility criteria, the petitioner will be 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 filed a petition for resentencing. The trial court, however, found defendant statutorily ineligible for resentencing and denied the petition. On appeal, defendant contends the superior court erred by denying his petition for resentencing, as unlawful possession of a firearm is not a disqualifying offense under Proposition 36. We affirm. FACTS On October 1, 2002, defendant, a convicted felon, was twirling a handgun on his finger when he accidentally shot Michael Gamboa in the leg. On February 5, 2003, a jury found defendant guilty of unlawful possession of a firearm by a felon (count 2) and unlawful possession of ammunition by a felon (count 3). The trial court sentenced defendant as a third strike offender to a term of 25 years to life in prison. On May 8, 2013, defendant filed a petition for resentencing under Proposition 36. Following a hearing on defendant’s petition, the superior court found defendant statutorily ineligible for resentencing on the basis of the fact he was armed during the commission of his unlawful possession of a firearm offense. This appeal followed.