People v. Gilbert CA2/1

Filed 3/17/16 P. v. Gilbert CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B265285

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA019676) v.

JACK LEE GILBERT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Mark R. Feeser, 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. ——————————

Jack Lee Gilbert (Gilbert) 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 1994. We find no error and affirm. At Gilbert’s 1994 trial, a police officer testified that he recovered from Gilbert a binocular case containing a “.22 long rifle, gun, with the barrel extension unattached to it.” A small bag attached to Gilbert’s waist contained sixteen .22 long caliber bullets. A firearms expert testified that the barrel had been sawed off, and the rifle could be “readily restored to fire a fixed cartridge.” The jury convicted Gilbert of unlawful possession of a firearm by a felon (§ 12021, subd. (a)(1)) and possessing a short barrel rifle (§ 12020, subd. (a)). The trial court found true the allegations that Gilbert had serious or violent felony convictions, and sentenced him to 25 years to life in state prison under the “Three Strikes” law. Gilbert appealed his sentence and we affirmed. (People v. Gilbert (Dec. 19, 1995, B089058) [nonpub. opn.].) In April 2014, Gilbert 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 Gilbert was ineligible for resentencing because he was armed with a firearm at the time of his commitment offense, and because he was dangerous and unsuitable for resentencing. (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii); 1170.126, subds. (e)(2), (f), (g).) Gilbert filed a reply arguing that he was not “armed” at the time of the commitment offense, as the shotgun was not readily accessible for use, and felon in possession of a firearm must be tethered to another offense before the crime renders a defendant ineligible for resentencing. At a hearing on June 22, 2015, the trial court pointed out that the firearm expert “said that you could put [the gun] together right