P.v. Whisenant CA3

Filed 4/18/16 P.v. Whisenant CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C077363

Plaintiff and Respondent, (Super. Ct. No. 06F01583)

v.

CHRISTOPHER WHISENANT,

Defendant and Appellant.

Defendant Christopher Whisenant appeals from an order after judgment. (Pen. Code, § 1237, subd. (b).)1 The trial court denied defendant’s petition under section 1170.126 to recall his third strike sentence of 25 years to life and resentence him as a second strike offender. Defendant argued in his petition for resentencing that his underlying commitment offense (felon in possession of a firearm) did not make him ineligible for resentencing. The trial court disagreed, finding that defendant was armed with a firearm based on the record of his conviction.

1 Undesignated section references are to the Penal Code.

1

Defendant renews his arguments on appeal and contends the order must be reversed and the matter remanded for further proceedings. We conclude that the trial court did not err in concluding that defendant was “armed”—he had a gun available for offensive or defensive use during his possession offense. I. BACKGROUND “On the night of April 2, 2005, [Nolan Jay] Bush, [defendant,] and Benny Ramos . . . were in a Chevrolet Blazer that was pulled over after a sheriff’s deputy heard gunshots, then saw the Blazer coming from the direction of the gunshots. The Blazer contained a ballistic vest, or ‘body armor,’ and a loaded pistol magazine. Three loaded pistols of different calibers were found by the road along the route between where the deputy began following the Blazer and where he stopped it. Five bullets of unusual caliber were found in the patrol car Bush had been in, and they fit one of the guns found by the roadside. The magazine found in the vehicle fit a different gun found by the road. All three men had felony convictions.” (People v. Whisenant (Feb. 9, 2010, C058320) [nonpub. opn.] at p. 2 (Whisenant I).) In 2007, a jury convicted defendant of felon in possession of a firearm and felon in possession of ammunition. The trial court found two strike priors and two prior prison terms to be true. In 2008, defendant was sentenced to state prison for 25 years to life. (Whisenant I, supra, C058320 at p. 1.) On February 21, 2014, defendant filed a petition for recall of his sentence and resentencing pursuant to section 1170.126. He argued his commitment offenses were neither serious nor violent felonies and that his release would not pose an unreasonable risk of danger to public safety. On September 12, 2014, the trial court denied defendant’s petition and issued a written ruling. The trial court had “considered the trial record . . . as summarized” in this court’s unpublished opinion, affirming the judgment, as well as the “parties’ respective briefs.” The parties’ respective briefs outlined some of the testimony at defendant’s trial.