P. v. Rogers CA3

Filed 2/16/16 P. v Rogers CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C075970

Plaintiff and Respondent, (Super. Ct. No. CM013236)

v.

ELLIOTT LAMONT ROGERS,

Defendant and Appellant.

Defendant Elliott Lamont Rogers appeals from the trial court’s order denying his petition for recall and resentencing under the Three Strikes Reform Act of 2012 (the Act). (Pen. Code, § 1170.126.)1 We affirm. FACTUAL AND PROCEDURAL BACKGROUND Trial Evidence, Verdict, and Sentencing On November 24, 1999, defendant robbed a check cashing business in Chico. During the robbery, defendant pointed a small handgun at the teller, donned a “ ‘Scream’ ” mask, handed the teller a small black duffel bag, and told her to put money

1 Undesignated statutory references are to the Penal Code.

1

from her drawer in the bag. She complied. After defendant left the business, the teller saw him get into a maroon or burgundy vehicle and drive off. About 45 minutes later, defendant was stopped by law enforcement while he was driving a vehicle matching the description of the one used by the robber. United States currency matching the denominations taken from the check cashing business were recovered from defendant’s jacket pockets. During a search of defendant’s apartment, law enforcement found a black “ ‘belly bag’ ” that contained a handgun and ammunition. A Scream mask was also found in the apartment. The teller identified the mask and the bag as items used in the robbery. Defendant’s fingerprints were found on the door to the check cashing business and the teller identified defendant as the robber at trial. (People v. Rogers (May 15, 2003, C038965) [nonpub. opn.] slip. opn. at pp. 2-5 (Rogers).) A jury convicted defendant of second degree robbery (§ 211 -- count 1) and found that he personally used a firearm in the commission of that offense (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). The jury also convicted defendant of possession of a firearm by a felon (former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1)] -- count 2). The trial court found that defendant had sustained three prior serious felony convictions (§§ 667, subds. (a) & (b)-(i), 1170.12) and sentenced defendant to state prison for 64 years to life. (Rogers, p. 1.) This court affirmed the judgment on May 15, 2003. (Id. at p. 2.) The Petition for Resentencing On June 24, 2013, defendant filed a petition for resentencing under section 1170.126. The People opposed the petition, arguing (1) section 1170.126 was not intended to apply to third strikers who had been convicted of both a serious/violent felony and a nonserious/nonviolent felony in their most recent case, and (2) an inmate is statutorily ineligible for resentencing even for a nonserious/nonviolent felony conviction if the inmate used or was armed with a firearm during the commission of that offense.