APPEAL from a judgment of the Superior Court of Sacramento County, No. 07F10132 Jack V. Sapunor, Judge.[*] (Retired judge of the Sacramento Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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Deanna Lamb, 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, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
In 2008, a trial court sentenced defendant Tyrea Kinte Hicks to 25 years to life in prison under the three strikes law for being a felon in possession of a firearm and a concurrent sentence of 25 years to life (that was later stayed by this court) for being a felon in possession of ammunition, after a jury had found defendant guilty of those crimes.
In 2012, defendant filed a petition for resentencing under the Three Strikes Reform Act of 2012 (the Act). Under the Act, “prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286 [155 Cal.Rptr.3d 856].)
The Act makes “[a]n inmate... eligible for resentencing” if, among other things, “[t]he inmate’s current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (Pen. Code, § 1170.126, subd. (e)(2).) Sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) provide that, “[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.”
Here, the trial court denied the petition. It found that based on the facts as recited in the appellate court opinion from defendant’s 2008 three strikes’ conviction, defendant was armed with a firearm when he committed the felon in possession of a firearm offense.
Defendant then filed a motion for reconsideration in the trial court, arguing it was error for the court to “restrict itself solely to a few limited facts” from the appellate opinion. He further argued that the arming enhancement had never been pled or proven with respect to the felon-in-possession charge and that he was not, in fact, armed, and pointed the court to evidence in the appellate court opinion that arguably showed he was not armed.
The trial court denied the motion for reconsideration. The trial court explained, among other things, that it had “examine[d] the record of conviction, which includes the Third District Court of Appeal opinion” and found
that the opinion “beyond a reasonable doubt establishes that defendant was personally armed with the firearm he was convicted of possession, in committing his offense of possessing the firearm.” The court added that defendant did not “attach any portion of the trial transcript that show[ed] that the Third District inaccurately summarized the trial evidence....”
Defendant appeals from the denial of his resentencing petition contending: (1) it is an appealable order; (2) if it is not, his appeal should be treated as a petition for writ of mandate; and (3) the trial court improperly denied the petition for resentencing based on the fact that he was armed with a firearm during the commission of his felon-in-possession offense because (a) the felon-in-possession offense is not one of the disqualifying offenses to which an arming may be attached; (b) no sentence was “imposed” for his arming; and (c) the court improperly relied on the statement of facts in the appellate opinion to support its factual finding that he was armed.
In Teal v. Superior Court (2014) 60 Cal.4th 595 [ __ Cal.Rptr.3d __, __ P.3d __ ], our Supreme Court concluded decisions under the ...