April 24, 2014
THE PEOPLE, Plaintiff and Respondent,
JOE WILLIE HAYNES, Defendant and Appellant.
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Tulare County No. VCF037228-98, Ronn M. Couillard, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Michael B. Sheltzer, Public Defender, Lisa Bertolino, Assistant Public Defender, and Angela Marie Krueger, Deputy Public Defender, 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 Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
“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). 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].)
Shortly after The Three Strikes Reform Act of 2012 (the Act or Proposition 36) went into effect, Joe Willie Haynes (defendant), an inmate serving a term of 25 years to life plus seven years following conviction of felonies that were not violent (as defined by § 667.5, subd. (c)) or serious (as defined by
§ 1192.7, subd. (c)), filed a motion seeking resentencing under the Act. The trial court determined defendant did not qualify (was ineligible) for resentencing and denied the motion. Defendant now appeals.
In the published portion of this opinion, we hold that the trial court’s order is appealable. In the unpublished portion, we hold that an inmate serving an indeterminate life term under the three strikes law may be found to have been “armed with a firearm” in the commission of his or her current offense(s), so as to be disqualified from resentencing under the Act, even if he or she did not carry the firearm on his or her person. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
On November 20, 1997, a parole search was conducted at the Visalia residence of defendant and Tammy Carter. As officers entered the apartment, defendant was walking out of one of the bedrooms. A search of the residence revealed, in the northeast bedroom, a pair of pants in which were a plastic bag containing 1.8 grams of cocaine base, a sandwich-type bag containing 3.4 grams of marijuana, and $500 cash. On top of the closet were $1, 300 and some Zig-Zag cigarette papers. A loaded handgun was hidden in the box springs of the bed. There were five live rounds in the handgun, and a sixth round of the same type and brand was found in or on the nightstand on the south side of the bed. On the same nightstand were items in defendant’s name and what appeared to be his articles of property. Pay-and-owe sheets were located in the nightstand on the north side of the bed, and a magazine for a nine-millimeter handgun, containing live rounds, was also found in that nightstand. Cocaine residue was found on a counter in the kitchen, and there was a box of sandwich bags in one of the kitchen drawers.
Defendant gave a statement in which he denied knowledge of the gun. He admitted the drugs were his, but maintained they were for his personal use, although he admitted having given some to a friend the night before. He also said the money was his and that he had saved it since he got out of prison in February of that year. He did not explain how that was possible in light of his previous claim he had not worked since the 1980’s. Despite defendant’s statement, an officer who was an expert in narcotic transactions and possession for sale opined the drugs were possessed for sale.
Defendant was subsequently charged with possession of cocaine base for sale while personally armed with a firearm and having suffered a prior
narcotics conviction (§ 12022, subd. (c); Health & Saf. Code, §§ 11351.5, 11370.2, subd. (a); count 1), possession of marijuana for sale while armed with a handgun (§ 12022, subd. (a)(1); Health & Saf. Code, § 11359; count 2); allowing a place to be used for preparing or storing controlled substances (Health & Saf. Code, § 11366.5, subd. (a); count 3), and possession of a firearm by a felon (former § 12021, subd. (a)(1), see now § 29800, subd. (a); count 4). With respect to each count, it was alleged defendant had suffered three prior “strike” convictions (§ 1170.12, subd. (c)(2)(A)) and had served two prior prison terms (§ 667.5, subd. (b)). On April 15, 1998, defendant pled no contest, pursuant to People v. West (1970) 3 Cal.3d 595 [91 Cal.Rptr. 385, 477 P.2d 409] (West), to all charges and special allegations. On June 22, 1998, he was sentenced to a total term of 25 years to life plus seven years in prison.
On November 29, 2012, defendant moved for resentencing pursuant to Proposition 36. The People opposed the motion, asserting defendant’s no contest plea to a section 12022, subdivision (c) allegation in connection with his current offenses constituted pleading and proof of a disqualifying factor. Defendant argued: (1) The electorate would have understood being “armed with a firearm” (the pertinent disqualifying factor) to occur when a defendant was carrying a firearm while perpetrating a crime, not where, as in the present case, defendant was not in actual physical possession of the firearm; (2) An allegation under section 12022, subdivision (c) could be found where the defendant was in constructive, not actual, possession of a firearm; and (3) Since the firearm was not found on defendant’s person, and he entered a West plea and maintained his innocence while denying any knowledge of the gun, nothing in the record constituted proof defendant was armed with a firearm within the meaning of Proposition 36. Accordingly, defendant claimed, he was qualified for resentencing.
On April 2, 2013, a hearing was held on defendant’s motion. After argument concerning what constituted being “armed with a firearm” within the meaning of the Act, the trial court observed it had presided over the preliminary hearing for defendant’s current offenses, and was “well acquainted with the factual basis” for defendant’s West plea. Accordingly, it found nothing to warrant ignoring the section 12022, subdivision (c) admission. The court then agreed with the People that the language of the Act was “relatively clear” and “fit the scenario of the traditional findings of [section] 12022[, subdivision] (c) to which [defendant] entered the plea.” Accordingly, the court found defendant not qualified for resentencing and denied defendant’s motion.
Defendant filed a timely notice of appeal from the court’s ruling. Because the question whether such a ruling is appealable is not settled, defendant also
separately filed a petition for writ of mandate and/or habeas corpus (Haynes v. Superior Court (Apr. 24, 2014, F067318), petn. den.).
I. The trial court’s ruling is appealable.
Both parties say the trial court’s denial of defendant’s motion is appealable. We agree.
“‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ [Citations.]” (People v. Mazurette (2001) 24 Cal.4th 789, 792 [102 Cal.Rptr.2d 555, 14 P.3d 227].) Section 1170.126 affords a procedure whereby inmates serving terms as third strike offenders can seek to be resentenced as second strike offenders, but it does not specifically authorize an appeal from the denial of a petition or motion for resentencing. However, section 1237 provides that a defendant may appeal “[f]rom a final judgment of conviction” (id., subd. (a)) or “[f]rom any order made after judgment, affecting the substantial rights of the party” (id., subd. (b)).
There can be little doubt the trial court’s denial of defendant’s motion was an order made after judgment, since, in a criminal case, judgment is synonymous with the imposition of sentence. (Fadelli Concrete Pumping, Inc. v. Appellate Department (1995) 34 Cal.App.4th 1194, 1200 [40 Cal.Rptr.2d 757].) Sentence was imposed for defendant’s current offenses in 1998. Although “‘an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself’” (People v. Totari (2002) 28 Cal.4th 876, 882 [123 Cal.Rptr.2d 76, 50 P.3d 781]), an appeal from a trial court’s denial of a section 1170.126 petition or motion pertains only to that particular ruling, and so does not constitute an improper second appeal from the judgment.
The question, then, is whether the trial court’s ruling affected defendant’s substantial rights. The trial court’s consideration of a petition under the Act is a two-step process. First, the court determines whether the petitioner is eligible for resentencing. If the petitioner is eligible, the court proceeds to the second step, and resentences the petitioner under the Act unless it determines that doing so would pose “an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
Here, we are concerned with the first step of the process — the initial eligibility determination. Section 1170.126 grants the trial court the power to determine an inmate serving an indeterminate life term as a third strike offender is eligible for resentencing as a second strike offender only if, as an initial matter, the inmate satisfies the three criteria set out in subdivision (e) of the statute. Those criteria are: (1) The inmate is serving an indeterminate term of life imprisonment imposed under the three strikes law for a conviction of a felony or felonies that are not defined as serious and/or violent under section 667.5, subdivision (c) or section 1192.7, subdivision (c); (2) The inmate’s current sentence was not imposed for a controlled substance offense with a specified weight enhancement, an enumerated sex offense, or an offense during the commission of which “the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person" (§§667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii); and (3) The inmate has no prior convictions for certain specified offenses. (§ 1170.126, subd. (e); see §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) If the inmate does not satisfy one or more of the criteria, section 1170.126 grants the trial court no power to do anything but deny the request for resentencing.
Although a trial court’s ruling at the first step of the process does not change an inmate’s sentence, we nevertheless believe it affects the inmate’s substantial rights. An initial eligibility determination affects whether the trial court will exercise resentencing discretion. This is not an idle exercise; where, as here, the trial court determines the inmate is ineligible, the process is finished and the inmate has no further opportunity to be resentenced as a second strike offender.
People v. Totari, supra, 28 Cal.4th 876, is instructive. In that case, the California Supreme Court concluded a trial court’s denial of a motion to vacate a judgment based on a guilty or nolo contendere plea for failure to
advise a defendant of the potential adverse immigration consequences resulting from his or her conviction, was appealable. (Id. at pp. 879, 887.) Although section 1016.5, which requires such an advisement and provides for a motion to vacate where the advisement was not given, did not expressly authorize an appeal from the denial of such a motion to vacate, the state high court concluded an appeal was permissible pursuant to section 1237, subdivision (b). (People v. Totari, supra, at pp. 881-882, 887.) The court explained: “[T]he Legislature has established specific requirements for a motion to vacate under section 1016.5. Once the Legislature has determined that a noncitizen defendant has a substantial right to be given complete advisements and affords defendant a means to obtain relief by way of a statutory postjudgment motion to vacate, … a denial order qualifies as an ‘order made after judgment, affecting the substantial rights of the party’ (§ 1237, subd. (b)).” (Id. at pp. 886-887, fn. & italics omitted.)
By enacting section 1170.126, the electorate provided a statutory procedure for inmates serving indeterminate life sentences imposed under the three strikes law, before its amendment by Proposition 36, to obtain resentencing in accordance with the terms of the amended law. This conferred a substantial right upon such inmates to have a trial court consider whether they should be resentenced. Accordingly, a trial court’s denial of a request for resentencing under section 1170.126 — even if it occurs at the conclusion of the first step of the procedure — is an “order made after judgment, affecting the substantial rights of the party" (§ 1237) and is therefore appealable pursuant to subdivision (b) of section 1237. (Cf. People v. Stein (1948) 31 Cal.2d 630, 632-633 [191 P.2d 409] [denial of postconviction motion to be relieved of habitual criminal status under former § 644 constituted appealable order under § 1237; contra, People v. Pritchett (1993) 20 Cal.App.4th 190, 194 [24 Cal.Rptr.2d 391] [order denying defendant’s request for resentencing pursuant to § 1170, subd. (d) not appealable as order affecting substantial rights of party, because statute did not give defendant right to request such order, but rather permitted recall of sentence on trial court’s own motion].)
II. Defendant was “armed with a firearm” within the meaning of the Act, and so was disqualified from resentencing[*]
The judgment is affirmed.
Levy, Acting P.J., and LaPorte, J.,[*]