People v. Underwood CA2/1

California Court of Appeal Feb 8, 2016 No. B262803Unpublished

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Holding. The court held that while the defendant was entitled to a review of his eligibility for resentencing on individual counts under People v. Johnson, he remained ineligible for relief because the record of conviction established he was armed during the commission of his offenses.

Issues

Whether a defendant is eligible for resentencing on non-serious felony counts under Penal Code section 1170.126 when other counts are ineligible.
Whether a defendant can be deemed 'armed' for purposes of the Three Strikes Reform Act based on the record of conviction.
Whether a conviction for felon in possession of a firearm precludes a finding that a defendant was 'armed' during the commission of the offense.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We agree with the Attorney General, however, that Underwood’s remaining evasion and possession counts remain ineligible for resentencing because he was “armed” under sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii).”

“For resentencing purposes, however, courts have held that conduct under sections 667 and 1170.12 need not be pleaded, proved, or clearly found by a jury to render counts ineligible for sentencing.”

Filed 2/8/16 P. v. Underwood CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B262803

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA306194) v.

WILLIE UNDERWOOD,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed. Eric Robert Larson 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 Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent. _____________________________

Defendant Willie Underwood appeals from an order denying and dismissing his petition for recall of sentence on three counts under Penal Code section 1170.126.1 Underwood argues he is eligible for resentencing on two counts in light of the California Supreme Court’s recent decision in People v. Johnson (2015) 61 Cal.4th 674 (Johnson). While acknowledging Johnson’s applicability, the Attorney General argues Underwood nevertheless remains ineligible for resentencing as defined by sections 1170.126, subdivision (e)(2), 667, subdivision (e)(2)(C)(iii), and 1170.12, subdivision (c)(2)(C)(iii) because he was armed. We affirm. BACKGROUND Following a jury trial in 2007, Underwood was convicted of (1) assault with a semiautomatic firearm (§ 245, subd. (b)); (2) felony evasion of a peace officer (Veh. Code, § 2800.2, subd. (a)); and (3) possession of a firearm as a previously convicted felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1).)2 The court sentenced him to a total term of 6 years plus 77 years to life in prison under the three strikes law. (See People v. Underwood (Feb. 25, 2010, B212973, at p. 7 [nonpub. opn.] (Underwood I).)3 Underwood appealed, but the appellate court upheld Underwood’s conviction and sentence. (Underwood I, at pp. 1, 19.)4 Underwood petitioned the Supreme Court for review, but the Supreme Court denied review. Following California’s implementation of Proposition 36, the Three Strikes Reform Act of 2012, Underwood filed a petition for

People v. Underwood CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B262803

WILLIE UNDERWOOD,

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