People v. Carter CA2/6

Filed 7/20/16 P. v. Carter CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B266923 (Super. Ct. No. TA047948) Plaintiff and Respondent, (Los Angeles County)

v.

JERMAINE PAUL CARTER,

Defendant and Appellant.

Jermaine Paul Carter appeals from an order denying his Penal Code section 1170.126 petition for resentencing under Proposition 36.1 In 1998 appellant was convicted by a jury of possession of a firearm by a felon (hereafter “the current offense”). (Former § 12021, subd. (a)(1) repealed and reenacted as section 29800, subd. (a)(1), Stats. 2010 ch. 711, § 6.) Because appellant had two prior serious or violent felony convictions within the meaning of California’s “Three Strikes” law, he was sentenced to prison for 25 years to life. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Appellant sought resentencing under Proposition 36 because the current offense is neither a violent nor serious felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).) The trial court concluded that defendant was ineligible for resentencing because he had been armed with a firearm during the commission of the current offense. We affirm.

1 All statutory references are to the Penal Code unless otherwise stated.

Facts Appellant appealed from his 1998 conviction of the current offense. In an unpublished opinion, we affirmed the judgment. (People v. Carter (Apr. 4, 2000, B127887).) In determining whether appellant was armed with a firearm during the commission of the current offense, the trial court could lawfully consider the entire record of conviction, including our opinion affirming the judgment. (People v. Hicks (2015) 231 Cal.App.4th 275, 285-286; People v. Osuna (2014) 225 Cal.App 4th 1020, 1030.) Our opinion summarized the facts as follows: “Los Angeles County Sheriff’s Deputies Richard Westin and Susan Gomez were patrolling the East Compton area one evening. They heard loud music coming from the trunk of a parked Cadillac surrounded by a group of people. They decided to stop and warn the group about the noise level. “As the deputies approached in their patrol car, they noticed appellant standing near the open trunk of the Cadillac. He closed the trunk, walked to the open front passenger window, and leaned inside. The deputies saw him pull a gun from his waistband and place it inside as he simultaneously turned down the volume of the music. Appellant then walked back to the rear of the Cadillac. “The deputies detained the individuals near the Cadillac. These included appellant’s brother, his fiancé and a mechanic who was working on the car. Deputy Gomez patted down the men for weapons and did not find any. She asked if any of them were on parole and appellant said he was. Deputy Westin then searched the Cadillac and recovered a loaded nine-millimeter, semi-automatic pistol from the passenger side floorboard. Appellant was handcuffed and placed under arrest. “After he had been advised of his Miranda rights, appellant stated that he had the gun for protection because he was a Blood in a Crips neighborhood. [Footnote omitted.] Both deputies were familiar with the area where appellant was arrested and knew that it was controlled by the Crips street gang. Neither officer knew appellant or had any contacts with him before his arrest.