California Court of Appeal Apr 4, 2016 No. D067114Unpublished
Filed 4/4/16 P. v. Willis CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067114
Plaintiff and Respondent,
v. (Super. Ct. No. SCD208339)
MARIO WILLIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y.
Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
In 2008, defendant and appellant Mario Willis was sentenced under the three
strikes law (Pen. Code,1 §§ 667, subds. (b)–(i), 1170.12) to a term of 25 years to life.
The record of conviction with respect to that sentence supports the trial court's later,
2014, determination that sentence on Willis's third strike was imposed for commission of
an offense during which he was armed within the meaning of Penal Code section 667,
trial court from relying on our prior opinion in Willis's previous appeal. In Lockley, the
court held that facts stated in an appellate opinion may not be judicially noticed where
those facts have not been established by way of an adversary proceeding. (Lockley, at
p. 883.) Here, Willis litigated the nature of his offense—and in particular its
seriousness—both in the trial court at the time of his sentence and in the Court of Appeal.
In both forums, his contentions were rejected because both courts found that he was
armed at the time of the subject offense. Thus, unlike the litigant in Lockley, the fact he
was personally armed with the shotgun was determined by way of adversary proceedings
and was properly noticed in the trial court. Willis argues the jury might have concluded
he constructively possessed the firearm, and, therefore, he should be eligible for
resentencing because this would not amount to his being "armed". As the record in this
case demonstrates, including the opinion of this court, there is no evidence that Willis
constructively possessed the weapon. The only evidence Willis points to is the dismissal
of count 1, making a criminal threat against his wife. His logic is strained. The alleged
victim in count 1 was his wife. The evidence demonstrated that when confronted by his
wife, Willis issued a generalized threat to "use it." One can see how the jury could
conclude the general threat was not a threat against his wife, particularly where the
conflict arose with respect to Willis's stepson. Second, one can certainly possess or arm
themselves with a firearm and not threaten to use it. In this case there is no legal or
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logical relationship between the threat in count 1 and the possession charge.
DISPOSITION
The order is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is ineligible for resentencing under Proposition 36 if the record of conviction, including prior appellate opinions, establishes that the defendant was armed during the commission of the offense.
Issues
Whether a trial court may rely on a prior appellate opinion as part of the 'record of conviction' to determine if a defendant was armed for purposes of Proposition 36 eligibility.
Whether the defendant's prior conviction for firearm possession involved being 'armed' within the meaning of Penal Code section 667, subdivision (e)(2).
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Willis's use of a firearm during commission of the third-strike offense disqualified him for relief under Proposition 36”
“the record of conviction includes any factual conclusions we reached in an opinion on a defendant's appeal from a conviction.”