People v. Smith CA5

Filed 4/25/16 P. v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070707 Plaintiff and Respondent, (Super. Ct. No. CF94526645) v.

ANTHONY LAMONT SMITH, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Franson, J.

INTRODUCTION Appellant Anthony Lamont Smith was sentenced in 1995 to a term of 25 years to life, after suffering a third strike conviction for being a felon in possession of a firearm. In 2013, he petitioned for resentencing pursuant to Penal Code1 section 1170.126. After the trial court denied the petition on the grounds he was statutorily ineligible, Smith appealed. In case No. F067404, this court reversed and remanded, holding that the trial court should examine the record of conviction to determine if Smith actually had the weapon he was convicted of possessing “available for offensive or defensive use.” After remand, the trial court found that Smith had actual possession of the weapon for offensive or defensive purposes and denied the petition for resentencing. We affirm. FACTUAL AND PROCEDURAL SUMMARY On December 11, 1994, two 17-year-old males boarded a bus and sat in the back. Smith and Jimmie Smith sat facing the two young men. Smith pulled out a chrome handgun and handed it to Jimmie. Jimmie used the handgun to rob the two young men of money and jewelry. The next day, Smith and Jimmie were arrested at Smith’s apartment, along with a 16-year-old female runaway and a male juvenile parolee. The young female was in possession of a piece of jewelry taken from one of the 17-year-olds in the robbery the day before. She also was in possession of a .25-caliber handgun that fit the description of the gun used in the robbery on the bus, as well as an Uzi. The young female stated that just before officers arrived at the apartment, Smith had received a phone call. When he hung up, Smith and Jimmie put the guns under her clothing and told her to sit down while officers searched the apartment.