People v. McKinney CA2/6

Filed 7/25/16 P. v. McKinney CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B269511 (Super. Ct. No. NA081936-01) Plaintiff and Respondent, (Los Angeles County)

v.

TEDDEST MCKINNEY,

Defendant and Appellant.

Teddest McKinney appeals an order denying his petition for resentencing pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (“the Act”). (Pen. Code, § 1170.126.)1 We affirm. FACTUAL AND PROCEDURAL HISTORY On July 20, 2010, McKinney was convicted of possession of a firearm by a felon; carrying an unregistered, loaded firearm; and misdemeanor resisting a peace officer. (§§ 12021, subd. (a)(1), 12031, subd. (a)(1), 148, subd. (a).)2 The trial court found that McKinney suffered two prior serious felony strike convictions and served two prior prison terms. (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) As a

1 All further statutory references are to the Penal Code. 2 The Deadly Weapons Recodification Act of 2010 repealed and recodified former sections 12000 to 12809 without substantive change. Former sections 12021 and 12031 were recodified at sections 29800 and 25850 respectively, operative January 1, 2012. (People v. Wade (2016) 63 Cal.4th 137, 140.)

third strike offender, the court sentenced him to a prison term of 27 years to life. The court also imposed various fines and fees and awarded McKinney 556 days of presentence custody credit. Our unpublished opinion affirmed McKinney’s conviction and described his offenses as follows: On April 12, 2009, Brenda Hart saw a group of people shouting at each other and preparing to fight. When police officers drove to the area, the crowd scattered. Hart saw a man throw a firearm into bushes near the street. McKinney then retrieved the firearm from the bushes and entered a white-colored vehicle that left the area. Police Officer Francisco Ramirez soon saw the white-colored vehicle. McKinney and two women were inside. Following a traffic stop, police officers found a loaded firearm under the passenger seat in which McKinney had been sitting. Hart later appeared at the vehicle stop and stated that officers had arrested “the right guy.” (People v. McKinney (Apr. 2, 2011, B226344) [nonpub. opn.].) Petition to Recall Sentence On December 12, 2012, McKinney filed a petition to recall his sentence pursuant to section 1170.126, and resentence him as a second-strike offender. The prosecutor opposed the petition, asserting in part that McKinney is ineligible for resentencing because he was armed with a firearm during commission of the underlying offense. (§ 667, subd. (e)(2)(C)(iii) [exclusion from resentencing pursuant to the Act where defendant was “armed with a firearm” during commission of offense].) Following written and oral argument, the trial court concluded that McKinney was ineligible for resentencing because he was armed with a firearm during commission of the offense: “The defendant was observed picking up and taking a handgun and getting into a car. The car was later stopped. The gun was found under his seat and he was a passenger . . . . [He is] statutorily ineligible.” The court then denied McKinney’s petition.