People v. Terry CA2/7

Filed 9/7/16 P. v. Terry CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B268934

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA043004) v.

DEWEY STEVEN TERRY III,

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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent. ____________________

INTRODUCTION

Dewey Steven Terry III appeals from an order denying his petition for resentencing under the Three Strikes Reform Act of 2012, enacted by the voters as Proposition 36 (Pen. Code, § 1170.126).1 Terry argues the trial court erred in determining he was ineligible for resentencing because he was armed with a firearm during the commission of his current offense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996 a jury convicted Terry of possession of a firearm by a felon (former § 12021, subd. (a)(1)),2 based on evidence that he fired six gunshots into the home of Isora Harrell.3 The trial court in that case found Terry had two prior serious or violent felony convictions, a 1984 conviction for assault and a 1988 conviction for voluntary manslaughter, and sentenced Terry under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) to an indeterminate term of 25 years to life. On November 6, 2012 the electorate passed Proposition 36, which “authorizes prisoners serving third-strike sentences whose ‘current’ offense (i.e., the offense for which the third-strike sentence was imposed) is not a serious or violent felony to petition for recall of the sentence and for resentencing as a second-strike case.” (People v. Johnson (2015) 61 Cal.4th 674, 679-680; see People v. Superior Court (Kaulick) (2013)