People v. Brown CA2/5

Filed 9/15/16 P. v. Brown CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B271179

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA016719) v.

DARIUS BROWN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. California Appellate Project, Jonathan B. Steiner and 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, Noah P. Hill and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. _______________________

Following his 1999 convictions in count 1 of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) while armed with a firearm (Pen. Code, § 12021),1 and in count 2 of felon in possession of a firearm (§ 12021), defendant Darius Brown was sentenced to concurrent state prison terms of 29 years-to-life and 25 years-to-life pursuant to the three strikes law. In December 2015 defendant filed a petition challenging his sentence as to count 2 under the provisions of the Three Strikes Reform Act of 2012 (Proposition 36) and section 1170.126.2 The trial court denied the petition on the ground that defendant was armed with a firearm, which rendered him ineligible for relief pursuant to section 1170.126, subdivision (e)(2). Defendant argues the trial court erred in finding him ineligible for relief, because being armed is an element of possession of a firearm by a felon, and disqualification is only proper when the armed element is tethered to a separate offense. We affirm. Under Proposition 36, “Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, . . . may file a petition for a recall of sentence . . . to request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amended by the act that added this section.” (§ 1170.126, subd. (b).) Various provisions define and limit eligibility for relief under Proposition 36, including section 1170.126, subd. (e)(2), which provides as follows: “An inmate is eligible for resentencing if: [¶] . . . [¶] (2) The inmate’s current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667. . . .” Proposition 36