Larson v. McConnell CA2/2

Filed 6/30/16 Larson v. McConnell CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

HARVEY EUGENE LARSON, B267312

Plaintiff and Appellant, (San Diego County Super. Ct. No. 37-2014-00030163-CU- v. PN-CTL)

JUDITH D. MCCONNELL, A JUSTICE OF THE COURT OF APPEAL et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County. Eddie C. Sturgeon, Judge. Affirmed.

Harvey Eugene Larson, in pro. per., for Plaintiff and Appellant.

Murchison & Cumming, William J. Snyder and Scott J. Loeding, for Defendants and Respondents.

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After Harvey Eugene Larson (Larson) was unsuccessful in the appeal of his petition for resentencing under the Three Strikes Reform Act of 2012, he sued four justices of the California Court of Appeal and two attorneys with Appellate Defenders, Inc. for damages and injunctive relief. The trial court sustained the justices’ demurrer on grounds of absolute judicial immunity. Its ruling was dictated by controlling law. We accordingly affirm. FACTS AND PROCEDURAL BACKGROUND In 2000, a jury convicted Larson of resisting an executive officer (Pen. Code, § 69) and exhibiting a deadly weapon to a police officer to resist arrest (Pen. Code, § 417.8), as well as the personal use of a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)). Larson had three prior convictions that qualified as “strikes” under California’s Three Strikes law (Pen. Code, §§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)), had served three prior prison terms (Pen. Code, § 667.5, subd. (b)), and had been convicted of a prior “serious” felony (Pen. Code, § 667, subd. (a)(1)). The trial court imposed a sentence of 34 years to life on the resisting arrest count and stayed the sentence on the exhibiting a deadly weapon count under Penal Code section 654. In March 2013, Larson filed a petition for resentencing under the Three Strikes Reform Act of 2012 on the ground that the felonies he committed in 2000 were neither “serious” nor “violent.” The trial court ruled that Larson was ineligible for relief because, in light of the jury’s findings, the offense on which he was serving time was a “felony in which the defendant personally used a dangerous or deadly weapon,” which is a “serious felony” under Penal Code section 1192.7, subdivision (c)(1)(23). Larson appealed, and his appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, indicating that there were no arguable issues on appeal and asking the Court of Appeal to independently review the trial record. At the invitation of the Court of Appeal, Larson filed a supplemental brief. In April 2014, the Court of Appeal, Fourth Appellate District, Division One, affirmed the trial court’s denial of Larson’s petition.