People v. Caraballo

Filed 4/20/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051036

v. (Super. Ct. No. 00WF2458)

MICHAEL ANGELO CARABALLO, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Jeffrey S. Kross, 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, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

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The court denied defendant Michael Angelo Caraballo’s petition under Penal Code section 1170.126 for recall of his third-strike sentence and for resentencing as 1 a second strike offender. We affirm the postjudgment order. Because defendant was vicariously armed during the commission of his current offense, he was disqualified from resentencing under subdivision (e)(2) of section 1170.126.

FACTS AND PROCEDURAL HISTORY

A 2003 unpublished opinion recited the following factual and procedural history underlying defendant’s conviction for the current offense. (People v. Caraballo (Oct. 24, 2003, G029786) (Caraballo I).) On November 9, 2000, defendant and a co- defendent (Mark Tyjuan Kirksey) entered a bank, but left after waiting for about 15 minutes. Police officers were stationed nearby; they had received a tip about defendant’s and Kirksey’s suspicious behavior. Defendant and Kirksey walked side by side toward a vehicle parked between two 6-foot high metal bins. “Kirksey, upon observing police activity, suddenly veered away from defendant, ran between the two metal bins, reached down to his waist, and tossed a . . . handgun on top of one of the bins. Defendant and Kirksey were arrested.” (Ibid.) A jury convicted defendant of second degree burglary and found he was armed with a firearm. The court found defendant had suffered two prior strike convictions and sentenced him to prison for 25 years to life for the burglary (pursuant to the Three Strikes law) plus one year for the firearm enhancement. On March 14, 2014, defendant petitioned for a recall of his sentence and a new sentencing hearing pursuant to section 1170.126, alleging that although the jury found he was armed with a firearm, this court stated in Caraballo I, supra, G029786, that he was not personally armed with a gun. The People opposed his petition on the ground