People v. Wilson CA2/6

Filed 6/20/16 P. v. Wilson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B267916 (Super. Ct. No. MA050053) Plaintiff and Respondent, (Los Angeles County)

v.

DENNIS E. WILSON,

Defendant and Appellant.

Dennis E. Wilson appeals the trial court's order finding him ineligible for resentencing under Proposition 36 because he was "armed" during the commission of the crime that underlies his "Third Strike" sentence of 25 years to life. We affirm. FACTS AND PROCEDURAL BACKGROUND In People v. Wilson (May 24, 2012, B234935 [nonpub. opn.]), we affirmed appellant's current conviction and described his offense as follows: "At about 12:20 a.m. on August 12, 2010, Los Angeles County Deputy Sheriff Wesley Guthrie was on patrol in Lancaster when he heard loud music emanating from appellant's vehicle. The music was also heard by Deputy [Taylor] Slimak, who was on patrol in a separate car. Deputy Slimak conducted a traffic stop of appellant for a violation of Vehicle Code section 27007 [fn. omitted], and Deputy Guthrie acted as his

backup. Deputy Guthrie positioned himself to the right of appellant's vehicle while Deputy Slimak approached the driver's door. "After Deputy Slimak spoke to appellant for approximately one minute, he directed him to exit his vehicle. Appellant was frisked for weapons near the hood of the deputy's patrol car, then placed in the back seat of the patrol car. In the meantime, Deputy Guthrie went to close the open driver's seat door to appellant's vehicle to prevent it from being hit by oncoming traffic. As the deputy was about to close the door, he saw a handgun in plain view between the driver's seat and center console. "Deputy Guthrie summoned Deputy Slimak, who also saw the gun in plain view. Deputy Guthrie seized the gun, which had a live round of ammunition in the chamber and was set to be fired. Appellant was placed under arrest and given the Miranda advisements. When Deputy Slimak asked appellant if he understood, appellant looked at the deputy, made a blowing air noise, and rolled his eyes. Appellant proceeded to tell the deputy that the gun was not meant 'for any law enforcement officers that night.' Appellant said he had driven to Los Angeles to retrieve the gun after someone shot at him earlier that day just up the street. He also said the deputies had pulled him over while he was returning to look for the person who shot at him." (Slip opn., at p. 2.) In June 2011, a jury convicted appellant of possession of a firearm by a felon (Former Pen. Code, § 12021, subd. (a)(1)).1 The trial court found true allegations that appellant had suffered two prior convictions within the meaning of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced appellant to a term of 25 years to life. In December 2012, appellant filed a petition for recall of sentence pursuant to section 1170.126. The trial court issued an order to show cause directing the People to demonstrate why such relief should not be granted. After reviewing the parties' briefing, the court denied appellant's petition. The court found that appellant was ineligible for