People v. Carter CA2/7

Filed 10/3/16 P. v. Carter CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B267570

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA134740) v.

CALVIN CARTER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William 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, Noah P. Hill and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Calvin Carter was convicted in 1996 of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). Based on his prior convictions, he was sentenced to a term of twenty-five years to life. In January 2013, Carter petitioned for recall of his sentence; the trial court issued an order to show cause but denied the petition on October 5, 2015. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND Carter was convicted after a jury trial of being a felon in possession of a firearm. (Pen. Code, § 12021(a)(1).) 1 During a chase by deputy sheriffs, the sheriffs observed Carter place a gun on a rooftop; after the arrest the gun was retrieved and determined to be loaded. The court found true four prior qualifying strike provisions (Pen. Code, §§ 667, 1170.12) and sentenced Carter to a term of twenty-five years to life. In 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of 2012 (Prop. 36), which, among other modifications of the Three Strikes Law, added section 1170.126 to the Penal Code to permit petitions for recall of sentences, and resentencing by individuals who would not have been subject to indeterminate life sentences had they been sentenced under Proposition 36. On January 15, 2013, Carter filed a petition for recall of his sentence pursuant to section 1170.126. The court issued an order to show cause on March 7, 2013. The People opposed the petition, asserting that Carter had been armed during the commission of the offense and was, accordingly, ineligible for resentencing; the People further asserted that his record also made him unsuitable for this relief. After additional briefing, the trial court heard the matter on October 5, 2015, found Carter statutorily ineligible for recall and resentencing, and denied the petition. Carter appealed.