People v. Spells CA2/6

Filed 6/21/16 P. v. Spells CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B266703 (Super. Ct. No. NA035543) Plaintiff and Respondent, (Los Angeles County)

v.

EVERT SPELLS,

Defendant and Appellant.

Evert Spells appeals an order denying his petition to recall his 1998 third strike sentence pursuant to Proposition 36 (Pen. Code, § 1170.126),1 following his conviction for unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1), now see § 29800). Spells is ineligible for resentencing because he was armed during the commission of the offense (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii); People v. White (2014) 223 Cal.App.4th 512, 527). We affirm. BACKGROUND Eighteen years ago, a police officer stopped Spells while he was driving a Jeep with expired registration tags. Spells had a handgun in the Jeep that was “readily accessible, loaded and ready to fire.” (People v. Spells (Oct. 26, 1999, B127877)

1 All statutory references are to the Penal Code.

[nonpub. opn.].) Spells had been convicted of robbery, attempted robbery, and other felonies prior to this incident. (Ibid.) A jury convicted Spells of being a felon in possession of a firearm. (§ 12021, subd. (a)(1).) He admitted two prior serious felony convictions within the meaning of the three strikes law and the trial court sentenced him to 25 years to life in prison. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) We affirmed the judgment. Following enactment of the Three Strikes Reform Act of 2012, also known as Proposition 36, Spells filed a petition to recall his sentence and to be resentenced. (§ 1170.126.) The trial court denied the petition on the ground that Spells was ineligible for resentencing because he was armed during the commission of the offense. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) DISCUSSION Spells is disqualified from resentencing because he had ready access to a firearm while committing the current offense. A prisoner such as Spells, who is presently serving an indeterminate life sentence for a third strike offense that was not serious or violent, may petition under Proposition 36 to have his sentence recalled and to be resentenced as if he had just one prior serious or violent felony conviction. (§ 1170.126, subds. (b) & (f).) An eligible prisoner must be granted relief under Proposition 36 unless resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) A prisoner is ineligible for relief under Proposition 36 if he “was armed” with a firearm “during” the current offense. (§§ 1170.126, subd. (e)(2) [“An inmate is eligible for resentencing if: [¶] . . . [¶] The inmate’s current offense was not imposed for any of the offenses appearing in [§ 667, subd. (e)(2)(C)(i) -(iii)] or [§ 1170.12, subd. (c)(2)(C)(i)-(iii)],” 667, subd. (e)(2)(C)(iii) [“[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person”], 1170.12, subd. (c)(2)(C)(iii) [same]; People v. Johnson (2015) 61 Cal.4th 674, 681.)