People v. Carrillo CA2/1

California Court of Appeal Jun 29, 2016 No. B264687Unpublished

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Holding. The court held that a defendant convicted of being a felon in possession of a firearm is ineligible for resentencing under the Three Strikes Reform Act if the record demonstrates the defendant was armed with the firearm during the commission of the offense.

Issues

Whether a defendant convicted of felon in possession of a firearm is ineligible for resentencing under the Three Strikes Reform Act if they were armed with the firearm during the commission of the offense.
Whether the 'armed with a firearm' exclusion requires the firearm to be 'tethered' to an offense other than the possession offense itself.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“All appellate courts deciding these issues have concluded that a defendant is ineligible for resentencing whenever the record shows the defendant was in actual physical possession of the firearm, and therefore not only possessed the firearm but was armed with it.”

“Where, as here, the record shows that a defendant convicted of possession of a firearm was armed with the firearm during the commission of the offense, the armed with a firearm exclusion applies and the defendant is not entitled to resentencing”

Filed 6/29/16 P. v. Carrillo CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B264687

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA032163) v.

FRANKLIN RAMIREZ CARRILLO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Jonathan B. Steiner and 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, Steven D. Matthews, Supervising Deputy Attorney General, and Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent. ——————————

Franklin Ramirez Carrillo appeals from an order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36, approved by the voters on November 6, 2012, amending Penal Code sections 667 and 1170.12,1 and adding section 1170.126 (the Act). (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1010.) He contends the trial court erred when it found him ineligible because he was armed with a firearm during the commission of his final strike offense in 1996. We find no error and affirm. At Carrillo’s 1997 trial, two Los Angeles County Sheriff’s Department deputies, Stewart Sandecki and Anthony Santos, testified. While conducting a routine traffic stop, Deputy Sandecki saw Carrillo carrying a car stereo and walking toward him on the opposite side of the street. Deputy Sandecki turned his attention from the traffic stop and asked Carrillo to approach him. Carrillo dropped the stereo, turned around, and ran away. Deputy Sandecki, followed by his partner Deputy Santos, chased Carrillo for approximately 200 yards. From approximately 25 feet behind Carrillo, Deputy Sandecki saw Carrillo reach down the left side of his body and retrieve what Deputy Sandecki believed to be a handgun. Carrillo slowed down and threw the object under a nearby car. Deputy Sandecki instructed Deputy Santos to recover the object while Deputy Sandecki continued pursuit. Deputy Santos recovered a .25 caliber semi-automatic handgun from under the car. The handgun was unloaded. For safety purposes, Deputy Santos removed the empty ammunition clip from the handgun and brought it to Deputy Sandecki, who had lost sight of Carrillo. After Deputy Sandecki set up a containment area and called for a dog unit, Carrillo emerged from his hiding place under a truck; the deputies took him into custody. Deputy Sandecki found a small clip-on handgun holster under the truck. The jury convicted Carrillo of unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)). The trial court also found true that Carrillo had suffered two serious and violent felony convictions under the “Three Strikes” law, and sentenced him

People v. Carrillo CA2/1

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B264687

FRANKLIN RAMIREZ CARRILLO,

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