People v. Levine CA2/4

Filed 8/15/16 P. v. Levine CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B266968

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA023055) v.

SCOTT WILLIAM LEVINE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Cheryl Lutz, 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 Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Appellant Scott William Levine is before us for a second time. On the prior occasion, we affirmed his conviction for possession of a firearm by a felon (see People v. Levine, Sept. 30, 1997, B103480 [unpub.]). Subsequently, appellant 1 filed a petition for recall of sentence pursuant to Penal Code section 1170.126. The trial court denied the petition, determining that appellant was statutorily ineligible for resentencing, as he was “armed with a firearm” during the commission of the offense. For the reasons set forth below, we conclude appellant was ineligible for resentencing. Accordingly, we affirm.

FACTUAL BACKGROUND & PROCEDURAL HISTORY As we recounted in our prior opinion, appellant was involved in a multi- vehicle accident. The vehicle appellant was driving had a broken key in the ignition switch. When questioned by Los Angeles Police Officer Victor Farhood and his partner, appellant stated he had borrowed the vehicle from a “‘friend.’” Additionally, appellant could not produce a driver’s license or vehicle registration. Officer Farhood handcuffed appellant and placed him in the patrol car because, according to the officer, appellant appeared “‘a little agitated, a little strange.’” The officer then returned to the vehicle to look for registration and identification papers. When Officer Farhood sat in the driver’s seat, he saw, in plain view, a loaded pistol in the center console. Officer Farhood returned to the patrol vehicle to show the handgun to his partner. As he did so, appellant stated: “‘“Now that you’ve found it, I’m not going to say anything.”’” A jury convicted appellant of possession of a firearm by a felon in violation of section 12021, subd. (a)(1). It also found true the allegations that appellant had 1 All further statutory citations are to the Penal Code, unless otherwise stated.