People v. Howard CA2/4

Filed 7/20/16 P. v. Howard CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B268558

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA027374) v.

YVES MONTANA HOWARD,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. 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, Assistant Attorney General, Noah P. Hill and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Yves Montana Howard appeals from an order dismissing his petition to recall his sentence and for resentencing under Proposition 36, the Three Strikes Reform 1 Act of 2012. (Pen. Code, § 1170.126.) We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND The facts of the current offense are taken from our previous unpublished opinion. (People v. Howard (Dec. 17, 1997, B106052).) Defendant was charged with possession of a firearm by a felon (former § 12021, subd. (a)(1), now found at § 29800, subd. (a)). He was alleged to have suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and to have served prior prison terms for robbery in 1984, armed robbery in 1989, and possession, manufacture or sale of a dangerous weapon in 1994. (§ 667.5, subd. (b)). The prosecution’s evidence at trial showed that on January 27, 1996, Sergeant Randall Dickey and Deputy Richard Green of the Los Angeles County Sheriff’s Department were driving in a marked patrol car on West 105th Street. The officers saw defendant standing with a group of people and holding what appeared to be a semi- automatic handgun. As the officers approached, defendant tucked the gun into his waistband and ran away. Dickey ran after defendant and apprehended him. Dickey recovered a loaded gun that defendant had tossed during the chase. The defense theory was that defendant’s momentary possession of the gun was not a violation of the statute. Through cross-examination of Dickey, the defense elicited a statement made by defendant on the night of the arrest: that he had been handed a gun as the patrol car arrived, and because he did not want to be caught with it, he had panicked and fled. Evidence corroborating defendant’s version of events was provided by Theresa Hopkins, a trial witness, and Jerome Webb, an unavailable witness whose statement was presented by stipulation.