People v. Albert CA2/2

Filed 4/21/16 P. v. Albert CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B267919

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA023651) v.

CORBY ALBERT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed.

Richard B. Lennon, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.

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Corby Albert (defendant) appeals the trial court’s order finding him ineligible for resentencing under Proposition 36 because he was “armed” during the commission of the crime that underlies his “third strike” sentence of 25 years to life. We conclude there was no error and affirm. FACTS AND PROCEDURAL BACKGROUND I. Underlying Offense, Conviction and Sentence One evening in late March 1995, defendant stood near a staircase on the second- floor walkway of an apartment building as two people near the bottom of the stairs conducted what appeared to be a drug transaction. When two Los Angeles County Sheriff’s deputies arrived, defendant slowly backed away from the stairs and reached for his waistband. One of the deputies trained his flashlight on defendant, and watched as defendant dropped a semiautomatic handgun on the floor. The People charged defendant with (1) being a felon in possession of a firearm 1 (former Pen. Code § 12021, subd. (a)) , and (2) being a felon carrying a concealed firearm (former § 12025, subds. (a)(2) & (b)(1)). The People alleged that defendant, in 1988, had sustained two convictions for robbery (§ 211) and one conviction for assault with a firearm (§ 245, subd. (a)(2)), and that the two robberies constituted “strikes” within the meaning of California’s Three Strikes law (§§ 667, subds. (b)-(j) & 1170.12, subd. (a)-(d)). The People further alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)). In 1996, a jury convicted defendant of both crimes and found all of the prior conviction allegations to be true. The trial court imposed a sentence of 27 years to life, comprised of a third strike sentence of 25 years to life on the felon-in-possession count plus one additional year for each prior prison term. The court stayed the sentence on the concealed firearm count pursuant to section 654. Defendant’s conviction and sentence were affirmed on appeal.