People v. Gathe CA2/2

Filed 9/20/16 P. v. Gathe CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B269090

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA051713) v.

ANTHONY RODGERS GATHE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed.

Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, 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, Paul M. Roadarmel, Jr., and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

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Anthony Rodgers Gathe (Gathe) appeals from the denial of his petition for recall and resentencing pursuant to Proposition 36.1 We find no error and affirm. FACTS On August 29, 1998, Gathe was searched by deputies from the Los Angeles County Sheriff’s Department. They retrieved a semiautomatic handgun from Gathe’s waistband. Subsequently, he pleaded guilty to possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)).2 He admitted to two prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced Gathe to a term of 25 years to life in state prison. He appealed. We affirmed the judgment in People v. Gathe (Apr. 11, 2000, B134805) [nonpub. opn.]. In December 2012, Gathe filed a petition for recall and resentencing. The trial court denied the petition because Gathe was armed with a firearm during the commitment offense. This appeal followed. DISCUSSION Proposition 36 “created a postconviction release proceeding whereby a [defendant] who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. [Citation.]” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168.) A defendant is disqualified if, “[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to