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People v. Blakely

California Court of Appeals, Fifth District

April 24, 2014

THE PEOPLE, Plaintiff and Respondent,
LEWIS VERNARD BLAKELY, Defendant and Appellant.


APPEAL from a judgment of the Superior Court of Kern County No. BF106973A. Colette M. Humphrey, Judge.

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Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

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“On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act [or Proposition 36]).[1] The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner 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. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 [151 Cal.Rptr.3d 901].)

After the Three Strikes Reform Act of 2012 (the Act or Proposition 36) went into effect, Lewis Vernard Blakely (defendant), an inmate serving a term of 25 years to life in prison following conviction of a felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for recall of sentence, seeking resentencing under the Act. The trial court ultimately determined defendant did not qualify (was ineligible) for resentencing and denied the petition. Defendant now appeals.

In the published portion of this opinion, we hold that a person convicted of being a felon in possession of a firearm is not automatically disqualified from resentencing by virtue of that conviction; such a person is disqualified only if he or she had the firearm available for offensive or defensive use. We also hold disqualifying factors need not be pled and proved to a trier of fact beyond a reasonable doubt; hence, a trial court determining whether an inmate is eligible for resentencing under section 1170.126 may examine relevant, reliable, admissible portions of the record of conviction to determine

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the existence of a disqualifying factor. Because, as we discuss in the unpublished portion of our opinion, we cannot determine whether the trial court based its finding of ineligibility on reliable and admissible portions of the record of conviction, we reverse the finding of ineligibility and remand for further proceedings. In the unpublished portion, we also hold that a trial court’s order finding a defendant not eligible for resentencing is appealable.


Early on June 4, 2004, defendant and a friend, Charles Williams, met Joyce Jones and Marquita Moore at a bar. Some time later, they all went to Moore’s apartment. Once there, defendant and Jones stayed in the living room, while Moore and Williams went into the bedroom.

While defendant and Jones were sitting in the living room, Moore’s live-in boyfriend, Kenneth Cannon, came home unexpectedly, broke into the bedroom, and discovered Moore and Williams engaged in sexual intercourse. Cannon punched and kicked Moore, then left the bedroom and retrieved a semiautomatic pistol from under a couch in the living room. Seeing that Cannon was armed, defendant removed a revolver from his own pocket and exchanged gunfire with Cannon. Defendant and Jones sustained gunshot injuries, and Cannon was fatally wounded. After firing every bullet from his weapon, defendant fled the scene. He subsequently told police he carried the revolver for protection, because while he was in prison, he testified against some people who were now on the streets. He said he also had the gun because he was on the east side and in enemy territory.

Defendant was charged with possessing cocaine base for sale (Health & Saf. Code, § 11351.5; count 1), being a felon in possession of a firearm (former § 12021, subd. (a)(1), see now § 29800, subd. (a)(1); count 2), and possessing cocaine base while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 3).[3] It was further alleged as to all three counts that defendant was acting for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and, as to count 1, that he was personally armed with a firearm

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(§ 12022, subd. (c)). Finally, as to each count, it was alleged defendant had suffered two prior “strike” convictions and had served a prior prison term.

On the day trial was set to begin, the court granted the prosecutor’s motion to dismiss counts 1 and 3, and the gang enhancements. As part of a “slow plea, ” defendant waived his right to a jury trial on count 2, stipulated to the existence of the strike priors, and stipulated that, on June 4, 2004, he had in his possession a handgun, a Smith and Wesson six-shot “long Colt” revolver. Based on those stipulations, the court found defendant guilty of count 2, and found true the strike prior and prior prison term allegations. On January 5, 2005, defendant was sentenced to a total unstayed term of 25 years to life in prison.

On December 6, 2012, defendant petitioned the trial court for a recall of sentence pursuant to section 1170.126. In pertinent part, he asserted he was statutorily eligible for resentencing under the Act because: (1) The fact he was convicted of violating former section 12021 did not automatically mean he was armed with a firearm because simple possession of a firearm is not the same as being armed with a firearm; (2) the drafters of the Act did not intend for a former section 12021 violation to make otherwise eligible defendants ineligible for relief; (3) The prosecution did not plead and prove defendant used or was armed with a firearm during the commission of his current offense; and (4) There was no factual record to support a finding of firearm use or arming during the commission of the current offense, since defendant stipulated only to possession of a firearm and it would be improper for the court to rely on the underlying facts of the case.

The People opposed the petition on the ground defendant was ineligible for resentencing pursuant to section 667, subdivision (e)(2)(C)(iii). The People argued: (1) “[A]rmed with a firearm, ” as used in the Act, is not limited to the meaning of that term as used in section 12022; (2) Even if section 12022’s definition of “armed” applied to the Act, defendant’s conviction for violating section 12021 would meet the definition; (3) The rules of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and its progeny do not apply to resentencing under the Act; (4) The trial court was not limited to a consideration of the trial stipulation, but could review the record of ...

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