People v. Peterson CA4/3

Filed 8/31/20 P. v. Peterson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G056688

v. (Super. Ct. No. 96NF0259)

JOHN ARTHUR PETERSON, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

John Arthur Peterson appeals an order denying his petition for resentencing 1 under Proposition 36. (See Pen. Code, § 1170.126.) He contends reversal is required because the prosecution failed to prove he was ineligible for resentencing. We disagree and affirm the order. 2 FACTUAL AND PROCEDURAL BACKGROUND On the night of January 26, 1996, appellant was congregating with a crowd of people outside a residence in Placentia. When a police car pulled up to the house, the group disbanded, appellant fled, and an officer pursued him on foot until he reached the fence of a neighboring residence. At that point, appellant retrieved an item from his waistband and threw it over the fence. He then surrendered to the officer, and the police recovered the item, which turned out to be a loaded handgun. At trial, appellant disclaimed any connection to the gun. The jury, unimpressed, convicted him of possessing a firearm as a felon as prohibited by section 12021. The jury also found he had suffered two prior serious felony convictions. Pursuant to the Three Strikes law, the court sentenced him to 25 years to life in prison. Sixteen years later, in 2012, appellant petitioned for resentencing pursuant to Proposition 36. In a lengthy opposition brief filed on August 7, 2013, the prosecution argued the petition should be denied for three reasons. First, appellant was ineligible for resentencing as a matter of law because his third strike conviction was for violating section 12021. Second, appellant was ineligible for resentencing as a matter of fact because the record of conviction of his section 12021 violation showed he was armed with a firearm during that offense. Third, appellant was not suitable for resentencing because he posed an unreasonable risk to public safety.