People v. London CA3

California Court of Appeal Jul 26, 2016 No. C074615Unpublished

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Holding. The court held that a defendant convicted of being a felon in possession of a firearm is ineligible for resentencing under the Three Strikes Reform Act because the defendant was 'armed' during the commission of the offense.

Issues

Whether the prosecution must plead and prove an arming allegation at trial to disqualify a defendant from resentencing under the Act.
Whether the 'arming' exclusion under the Act requires a facilitative nexus between the firearm and the underlying possessory offense.
Whether the trial court's determination of arming eligibility violates the right to a jury trial under Apprendi v. New Jersey.

Disposition. affirmed

Quotations verified verbatim against the opinion

“By its terms, the Act does not require a jury finding establishing this exception when a prisoner is seeking resentencing pursuant to the retrospective part of the Act; the court must simply ‘determine’ whether the exception applies.”

“‘Armed with a firearm’ has been statutorily defined and judicially construed to mean having a firearm available for use, ether offensively or defensively.”

“These facts show defendant was armed during the commission of his current felony, and thus is ineligible to have his sentenced recalled.”

Filed 7/26/16 P. v. London CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C074615

Plaintiff and Respondent, (Super. Ct. No. CRF99-381)

MICHAEL EUGENE LONDON,

Defendant and Appellant.

Defendant Michael Eugene London appeals from the trial court’s order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126, “the Act”).1 He contends his current conviction of being a felon in

1 Undesignated references to sections are to the Penal Code.

possession of a firearm should not disqualify him from being resentenced. We disagree and affirm the order.2 FACTUAL AND PROCEDURAL BACKGROUND We quote our opinion on the underlying conviction for a statement of facts. “At approximately 8:45 p.m. on August 6, 1999, Sheriff’s Lieutenant Alan Long and Reserve Deputy Robert Hess were dispatched to the Vinboy Trailer Park to arrest defendant on an outstanding felony arrest warrant. On their way to the trailer park, the officers were advised defendant’s truck had been seen leaving the trailer park, heading down Third Avenue. Between 9:00 p.m. and 9:15 p.m., the officers located the truck on Third Avenue, recognized the driver as defendant, and parked behind the truck. “The officers got out of their marked patrol car as defendant got out of his truck, leaving his hands inside the truck. As defendant appeared to be doing something with his hands inside the truck and the officers could not see his hands, they drew their guns and ordered defendant to show his hands. Defendant did not comply. The officers repeatedly directed defendant to take his hands out of the truck, to no avail. Defendant repeatedly asserted he had not done anything, and the officers then advised him they had a felony warrant for his arrest. “As the officers moved toward defendant, defendant began to back away from them and then ran down Third Avenue. Defendant ignored their demands to ‘stop.’ After a chase, defendant was apprehended. Deputy Hess conducted a pat-down search and found 13 live .22-caliber rifle shells in defendant’s pants pocket. “An inventory search of defendant’s truck revealed a handgun, 10 rounds of .22- caliber ammunition, and an empty box for .22-caliber ammunition. The handgun was in plain sight, on the driver’s side floorboard about two inches from the door. It was loaded

People v. London CA3

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THE PEOPLE, C074615

MICHAEL EUGENE LONDON,

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