People v. Young CA2/1

Filed 3/17/16 P. v. Young CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B265301

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA076400) v.

DESHON YOUNG,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed. Richard B. Lennon, under appointment of the California 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.

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Defendant and appellant Deshon Young appeals from the trial court’s denial of his petition to recall his sentence for possession of a firearm under Penal Code sections 1170.126, subdivision (e)(2), 667, subdivision (e)(2)(C)(iii), and 1170.12, subdivision (c)(2)(C)(iii).1 Young contends the voters did not intend, and the statute is not actually written, to impose ineligibility for possession of a firearm. A body of case law, however, refutes his claim. We affirm. BACKGROUND On August 15, 2004, armed gang members confronted and nonfatally shot Robin Newton and Willie Davis outside an apartment building in Compton. (People v. Deshon Young (July 27, 2006, B183869, at p. 2) [nonpub. opn.].) Law enforcement subsequently executed a search warrant in connection with these shootings on an apartment where Young was staying. (Ibid.) Young was in his bedroom when SWAT stormed the apartment. After law enforcement arrested Young, they searched his room and found a gun on his bed, under the covers. A jury convicted Young of possessing a firearm as a felon in violation of section 12021, subdivision (a)(1). Young filed a petition in propria persona for recall of his sentence in 2012, but the court denied the petition without prejudice for lack of service on the district attorney. On September 19, 2013, Young refiled his petition for recall with the assistance of counsel. After a hearing, the court denied Young’s petition with prejudice under section 1170.126, subdivision (e)(2), finding he was ineligible for resentencing because he was “armed” under sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). Young appealed. DISCUSSION On appeal, Young argues that the voters did not intend, and section 1170.126 is not actually written, to deny resentencing eligibility under the “armed” exception where, as here, arming is an element of the offense. Young claims “arming” must occur during a separate offense.