People v. Rios CA5

California Court of Appeal May 20, 2016 No. F070453Unpublished

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Holding. The court held that the trial court properly relied on a prior appellate opinion as part of the record of conviction to determine that the defendant was ineligible for resentencing under the Three Strikes Reform Act because he was armed with a firearm during the commission of his current offense.

Issues

Whether an appellate opinion from a defendant's underlying conviction is sufficient evidence to establish ineligibility for resentencing under the Three Strikes Reform Act.
Whether a defendant is entitled to a jury trial and proof beyond a reasonable doubt regarding the factual findings supporting ineligibility for resentencing.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the appellate court opinion from the underlying conviction is part of the record on appeal and is properly considered when determining an inmate’s eligibility for resentencing pursuant to section 1170.126.”

“Under the facts of this case, we conclude the appellate opinion was probative and formed a reliable basis for the trial court’s conclusion that Rios was not eligible for resentencing.”

Filed 5/20/16 P. v. Rios 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070453 Plaintiff and Respondent, (Super. Ct. No. MF007940A) v.

FLORENCIO RIOS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Kane, Acting P.J., Franson, J., and Peña, J.

Florencio Rios filed a petition to be resentenced pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (the Act). The trial court denied the petition, concluding Rios was ineligible for resentencing. Rios appeals, arguing the record is insufficient to support the trial court’s conclusion. We affirm the order denying the petition. FACTUAL AND PROCEDURAL SUMMARY In 2009, after his motion to suppress the handgun found in his possession was denied, Rios pled no contest to violating former section 12021.1, subdivision (a) of the Penal Code,1 possession of a firearm by one who had previously been convicted of a violent felony (see now § 29900 et seq.), and he admitted four prior convictions constituting strikes within the meaning of section 667, subdivisions (b)-(i). He was sentenced to a third strike term of 25 years to life. In 2014, Rios filed a petition to recall his sentence pursuant to section 1170.126. The district attorney’s office opposed the petition. Relying on the opinion from this court denying his appeal from the underlying conviction, the trial court denied the petition, concluding Rios was ineligible for resentencing. DISCUSSION Section 1170.126, enacted as part of the Act, defines those eligible for resentencing as inmates serving an indeterminate third strike sentence, and (1) not serving a sentence for a crime listed as a serious felony (§ 1192.7, subd. (c)) or a violent felony (§ 667.5, subd. (c)), (2) not serving a sentence for a crime committed under the circumstances listed in section 667, subdivision (e)(2)(C)(i)–(iii), or section 1170.12, subdivision (c)(2)(C)(i)– (iii), and

People v. Rios CA5

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