People v. Gregory CA2/5

Filed 12/8/15 P. v. Gregory CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B263652

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA033903) v.

WALTER GREGORY, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, under appointments 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, Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent. _____________________________

Defendant and appellant Walter Gregory, Jr. was sentenced to an indeterminate life term under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))1 after a jury convicted him in 1998 of being a felon in possession of a firearm (former § 12021, subd. (a)(1)). After Proposition 36 was enacted in 2012, defendant petitioned to have his indeterminate life sentence recalled under section 1170.126, and the trial court denied his petition. We affirm because the defendant was “armed” during his gun possession offense and therefore ineligible for relief under Proposition 36.

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying defendant’s gun possession conviction were described in an unpublished opinion by this court affirming defendant’s conviction as follows. Police “blocked a car containing defendant and defendant’s brother-in-law, Eugene Payne (Eugene). Eugene was in the driver’s seat, and defendant was in the right rear passenger seat. Both men were ordered by officers at gunpoint to put their hands in the air. Eugene immediately complied, but defendant kept his hands down, moving them outside of the view of the officers. [¶] Eventually, both defendant and Eugene were removed from the car. Officers recovered a loaded chrome .380 semiautomatic pistol from an area under the right rear passenger seat. Defendant told Officer Michael Shimkus the gun had been handed to him by a motel occupant, who told him to hide the gun. Eugene told Officer Chris Komathy that when the officers arrived, defendant told Eugene, ‘Tell them it[’]s your gun. Tell them it[’]s your gun.’” A jury convicted defendant of being a felon in possession of a gun, defendant admitted to suffering three prior “strike” convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and was sentenced to an indeterminate prison term of 25 years to life. In 2012, the voters enacted Proposition 36, which “amended the Three Strikes law so that an indeterminate life sentence may only be imposed where the offender’s third