People v. Acevedo CA5

Filed 5/24/16 P. v. Acevedo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F070421 Plaintiff and Respondent, (Super. Ct. No. SC082343A) v.

YSIDRO GUELLERMO ACEVEDO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, 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- Ysidro Guellermo Acevedo filed a petition pursuant to the Three Strikes Reform Act of 2012 (the Act). The trial court denied the petition finding Acevedo was ineligible

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

for resentencing. Appellate counsel filed a brief asserting she could not identify any arguable issues in this case. We agree and affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY In 2001, a jury found Acevedo guilty of two counts of being a felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)(1))1, two counts of being a felon carrying a loaded firearm (former § 12031, subd. (a)(2)(A)), and one count of being a felon in possession of ammunition (former § 12316, subd. (b)(1)) (the 2001 convictions). He was sentenced to a third strike sentence of 25 years to life. The following factual summary of the events leading to these convictions is drawn from the opinion from this court affirming these convictions. (People v. Acevedo (July 29, 2002, F039004) [nonpub. opn.].) Kern County Deputy Sheriff Todd Bishop was on routine patrol when he observed Acevedo walking in the street erratically as if he was intoxicated. When Bishop attempted to contact Acevedo, Acevedo ran from the scene. Bishop followed and eventually caught Acevedo. When he searched Acevedo, Bishop found a handgun in a holster on Acevedo’s ankle and another handgun, which appeared to have been dropped during the pursuit, but had been carried in a holster found on Acevedo’s waist. Both firearms were loaded. On August 6, 2014, Acevedo filed a petition pursuant to section 1170.126 seeking to be resentenced pursuant to the provisions of the Act. The district attorney opposed the petition arguing Acevedo was ineligible for resentencing because he was armed with a firearm during the commission of the offense that led to his third strike sentence. A probation report was filed which included as exhibits the appellate court opinion from the appeal of the 2001 convictions, and the preliminary hearing transcript from the 2001