California Court of Appeal Sep 21, 2016 No. D068737Unpublished
Filed 9/21/16 P. v. Tejeda CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068737
Plaintiff and Respondent,
v. (Super. Ct. No. ECR10801)
LUIS ANAYA TEJEDA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp,
Deputy Attorneys General, for Plaintiff and Respondent.
In 1995, a jury convicted Luis Anaya Tejeda of possession of a controlled
substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a);
count 1); possession of a firearm by a felon (former Pen. Code,1 § 12021, subd. (a);
count 2); and petty theft after a prior (§§ 484/666; count 3) and that Tejeda was armed
with a firearm within the meaning of section 12022, subdivision (a) as to count 3. Tejeda
Cal.App.4th 512; see People v. Osuna (2014) 225 Cal.App.4th 1020, 1030-1032). Tejeda
has not identified any case law which differs from or distinguishes either of the White
cases.
In White II, supra, 243 Cal.App.4th 1354, the court made clear that the factor in
the statute which renders the inmate ineligible for resentencing in that case was being
armed with a firearm, the court held it was not necessary to show a "facilitating nexus" to
the underlying offense. The court said:
"Defendant posits various arguments designed to convince us that section 1170.126 should nonetheless be construed as precluding a finding that a defendant convicted of merely possessing a firearm, without any other offense, is ineligible for resentencing relief. We find none convincing." (White II, supra, at p. 1363.)
Tejeda's argument that he was merely in "passive" possession of the pistol is likewise not
convincing. The pistol was immediately accessible, and he fought with the security
person to maintain possession of the pistol. Passive or not, Tejeda was indeed armed
with a pistol within the meaning of section 1170.126.
Tejeda also complains the trial court placed too much emphasis on the jury's
finding that Tejeda was armed. He argues that since the firearm enhancement went away
with the reduction of count 3 to a misdemeanor, somehow the trial court should not have
considered the finding. Tejeda contends the court's action was akin to using a dismissed
offense to punish the defendant. (People v. Berry (2015) 235 Cal.App.4th 1417, 1425.)
We find this argument unconvincing as well.
There is really no dispute that Tejeda had the loaded pistol on his person at the
time of the offenses. The jury finding established the arming allegation beyond a
6
reasonable doubt. The finding was never found invalid, the enhancement simply
disappeared at the resentencing when the court reduced the underlying offense to a
misdemeanor. The record remains crystal clear that Tejeda was armed with a loaded
pistol at the time of the offense. The trial court did not err in noting and discussing the
jury's finding.
Continued incarceration of Tejeda does not raise any due process issues. He was
fairly convicted of the underlying offense, validly sentenced and his sentence was upheld
on appeal years ago. He was accorded a full and fair hearing on his request for relief
under Proposition 36. The fact his petition was lawfully denied simply means he is still
serving a validly imposed sentence. That does not establish a due process violation.
DISPOSITION
The order denying the petition for resentencing is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is ineligible for resentencing under the Three Strikes Reform Act if they were personally armed with a firearm during the commission of the offense, regardless of whether the possession was "passive."
Issues
Whether a defendant is eligible for resentencing under Proposition 36 when they were armed with a firearm during the commission of the offense.
Whether the trial court erred in considering a jury's arming finding that was associated with a count later reduced to a misdemeanor.
Whether continued incarceration violates due process after the denial of a petition for resentencing.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the record establishes the person was personally armed with a firearm at the time of the offense.”
“Passive or not, Tejeda was indeed armed with a pistol within the meaning of section 1170.126.”