Filed 6/21/17 P. v. Willis CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TONY LEROY WILLIS,

Defendant and Appellant.

F073062

(Super. Ct. No. F04908958-2)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Willis was convicted of violating Penal Code section 148.10, resisting a peace officer resulting in serious bodily injury to the officer, and a third strike sentence of 25 years to life was imposed. On November 7, 2014, Willis petitioned for a recall of his sentence and resentencing pursuant to section 1170.126. After a hearing, the superior court denied the petition on the grounds Willis was ineligible. Willis appeals. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The procedural history of this case is convoluted. In 2006, Willis was charged with 13 felony counts and four misdemeanor counts. Among the charges was that Willis was a felon in possession of a firearm and ammunition, unlawful taking of a vehicle, and resisting arrest resulting in serious bodily injury. It also was alleged that Willis was armed with a firearm pursuant to section 12022, subdivision (a)(1) as to two counts, unlawful taking of a vehicle and evading an officer. On June 16, 2006, Willis pled no contest to all charges and admitted all enhancements.
Willis moved to withdraw his plea in September 2006, which was denied. However, the trial court dismissed counts 2 through 7 and struck multiple enhancements. A third strike sentence was imposed for counts 1, 8, 9, 10, 11, 12, and 13, consisting of resisting arrest resulting in serious bodily injury, vehicle theft, evading a peace officer, possession of a firearm by a felon, possession of ammunition by a felon, possession of methamphetamine while armed, and receiving stolen property.
Willis appealed (People v. Willis (May 20, 2008, F051467) [nonpub. opn.]) and this court reversed and remanded for further proceedings on Willis’s motion to withdraw his plea. On remand, the trial court denied Willis’s motion to withdraw his plea. On the People’s motion, all counts except count 1, resisting arrest resulting in serious bodily injury, and all enhancements except for the prior strike enhancements, were dismissed and a third strike sentence of 25 years to life was imposed. Willis appealed again (People v. Willis (May 12, 2010, F057178) [nonpub. opn.]) and this court made some modifications to the judgment, but affirmed the count 1 conviction and third strike sentence.
On November 7, 2014, Willis filed a petition for recall of his third strike sentence pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (the Act). (§ 1170.126.) Willis argued he was eligible for resentencing because he was not convicted of serious or violent felonies in his third strike. Willis also asked the superior court to take judicial notice of the “court file” in his case. The superior court issued an order appointing counsel, setting a briefing schedule, and scheduling a hearing on the merits of the petition.
On May 22, 2015, the superior court issued an order that all records received from the California Department of Corrections and Rehabilitation pertaining to Willis be copied and provided to both defense counsel and the People.
The People filed opposition to the petition in July 2015, arguing Willis was ineligible because he was “armed with a firearm” in the commission of the underlying offense within the meaning of sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). Included with the opposition was a lengthy portion of the preliminary hearing transcript and a copy of the plea form signed by Willis. The plea form indicated the factual basis for the plea was the preliminary hearing transcript and the police reports.
The preliminary hearing transcript disclosed that Willis was spotted exiting a parking lot driving a stolen vehicle. The officer made a U-turn as a precursor to stopping the vehicle. As the officer made a U-turn, Willis accelerated, crossed over a double yellow line to pass a vehicle, and nearly collided with another vehicle. The officer activated the patrol car’s siren and lights. The officer also called dispatch to report the pursuit while following Willis, who accelerated to 95 miles per hour. Willis ran a red light and went through a stop sign without stopping. The vehicle pursuit covered seven or eight miles and lasted about five minutes. The vehicle pursuit ended when the vehicle Willis was driving became stuck in the mud.
The officer approached the vehicle from the passenger side and instructed the two occupants to exit with their hands raised. Willis responded, “Fuck it, I’m not going” and ran toward a nearby high school. The officer drew his weapon and pursued Willis on foot; the officer was injured during the foot pursuit. The injury to the officer’s hand required surgery.
At the time the officer approached the vehicle Willis was driving, the officer had information indicating Willis was armed. Among the items in the vehicle Willis was driving were a 20-gauge shotgun and 20-gauge ammunition; the shotgun was behind the driver’s seat. The shotgun had a live round in the chamber. Willis admitted he owned the shotgun.
On October 29, 2015, Willis filed a brief in support of his petition and in response to the People’s opposition.
A hearing on the petition eventually was held on November 18, 2015. The People argued that the preliminary hearing transcript and the police reports established that Willis was armed during the commission of the offense. Defense counsel argued that Willis was not armed; he had fled the vehicle leaving the weapon in the vehicle and the pursuing officer was injured while engaged in a foot pursuit.
The superior court noted that Willis began his resistance to arrest when he engaged in a high-speed attempt to flee from the officer while driving in a stolen vehicle; there was a shotgun in the vehicle. Prior to ruling, the superior court reviewed all the documents filed in support of or in opposition to the petition, including the preliminary hearing transcript, noting the 20-gauge shotgun was behind the driver’s seat of the vehicle Willis was driving when he was fleeing from law enforcement, within reach of Willis. The superior court concluded that Willis had a firearm available for offensive or defensive use during the commission of the offense. Consequently, the superior court found Willis ineligible for resentencing.
Willis filed a timely notice of appeal on January 11, 2016.
DISCUSSION
Willis contends the record of conviction does not support a finding that he was armed during the commission of the underlying offense or otherwise ineligible for resentencing; therefore, the petition for resentencing should be granted. We disagree.
Proposition 36
Under the Act, “a prisoner currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the Three Strikes law for a third felony conviction that was not a serious or violent felony may be eligible for resentencing as if he or she only had one prior serious felony conviction. [Citations.]” (People v. White (2014) 223 Cal.App.4th 512, 517 (White); § 1170.126, subd. (e).)
“Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria” set forth in section 1170.126, subdivision (e). (§ 1170.126, subd. (f), italics added.) “If the petitioner satisfies” the statutory criteria, “the petitioner shall be resentenced … unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (Ibid.)
Section 1170.126, subdivision (e)(2) creates an exception to eligibility, providing that a defendant serving a sentence for an offense described in section 667, subdivision (e)(2)(C)(i)–(iii) is not eligible. Among the offenses described in section 667, subdivision (e)(2)(C) are those in 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).)
As relevant to this case, Willis is ineligible for resentencing under the Act “if, inter alia, ‘[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.’ [Citations.]” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1051 (Blakely); People v. Elder (2014) 227 Cal.App.4th 1308, 1312; § 1170.126, subd. (e)(2); § 667, subd. (e)(2)(C)(iii); § 1170.12, subd. (c)(2)(C)(iii).)
Armed With A Firearm or Deadly Weapon
“A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citations.]” (People v. Bland (1995) 10 Cal.4th 991, 997 (Bland), italics in original; Blakely, supra, 225 Cal.App.4th at pp. 1051–1052; People v. Osuna (2014) 225 Cal.App.4th 1020, 1029 (Osuna).) “ ‘[I]t is the availability—the ready access—of the weapon that constitutes arming.’ [Citation.]” (Bland, supra, 10 Cal.4th at p. 997.)
A third strike inmate “may be found to have been ‘armed with a firearm’ in the commission of his or her current offense, 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.” (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 984–985, 992–993 [defendant had firearm available for immediate use and was armed when he was arrested in kitchen, and guns were found in adjacent bedroom and a closet]; People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011–1014 [defendant armed with a firearm when police searched his house while he stood in front doorway, and found loaded handgun in wife’s purse located in bedroom]; People v. Elder, supra, 227 Cal.App.4th 1308, 1317 [defendant armed with a firearm when his apartment was searched while he was standing outside, and guns were found on shelf of entertainment center and in unlocked bedroom safe].)
Willis had the shotgun in the stolen vehicle as he engaged in a high-speed attempt to resist arrest by driving the vehicle on surface streets at speeds of up to 95 miles per hour. Willis initially admitted an arming enhancement as to two counts, which later was dismissed at sentencing on motion of the People. Willis argues, however, an eligibility determination is limited to a review of the particular statutory offenses and enhancements of which the inmate stands convicted and the dismissal of the arming enhancement precludes use of this information. He is mistaken. (People v. Bradford (2014) 227 Cal.App.4th 1322, 1332 (Bradford).)
Contrary to Willis’s contention, “the court may examine relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors. [Citation.]” (Blakely, supra, 225 Cal.App.4th at p. 1063, italics added.) The facts needed to adjudicate eligibility must be taken solely from the record of conviction. (Bradford, supra, 227 Cal.App.4th at p. 1327; People v. Burnes (2015) 242 Cal.App.4th 1452, 1458.) “Where … the record shows that a defendant convicted of possession of a firearm was armed with the firearm during the commission of that offense, the armed with a firearm exclusion applies and the defendant is not entitled to resentencing relief under the Act.” (People v. Brimmer (2014) 230 Cal.App.4th 782, 797 (Brimmer).)
The record of conviction includes the preliminary hearing transcript (People v. Reed (1996) 13 Cal.4th 217, 224–229; People v. Trujillo (2006) 40 Cal.4th 165, 180; People v. Gonzales (2005) 131 Cal.App.4th 767, 773–775); the accusatory pleading and the transcript of a defendant’s plea underlying the prior conviction (People v. Washington (2012) 210 Cal.App.4th 1042, 1045); the transcript of the defendant’s jury trial (Brimmer, supra, 230 Cal.App.4th at pp. 800–801); and the appellate record, including both published and nonpublished appellate opinions (People v. Woodell (1998) 17 Cal.4th 448, 456–457; People v. Trujillo, supra, 40 Cal.4th at pp. 180–181; People v. Elder, supra, 227 Cal.App.4th at p. 1317; Osuna, supra, 225 Cal.App.4th at p. 1030; Brimmer, supra, 230 Cal.App.4th at pp. 800–801; People v. Hicks (2014) 231 Cal.App.4th 275, 286.)
Burden of Proof
In filing a petition for recall, the petitioning inmate has the initial burden of establishing eligibility, i.e., at a minimum, the requisite conviction and sentence set forth in section 1170.126, subdivision (e)(1). (§ 1170.126, subds. (b), (f).) The prosecution then has the opportunity to oppose the petition by establishing the petitioning inmate is ineligible for resentencing pursuant to the statutory grounds. (§ 1170.126, subd. (e); People v. Johnson (2016) 1 Cal.App.5th 953, 964–965.) “Because a determination of eligibility under section 1170.126 does not implicate the Sixth Amendment, a trial court need only find the existence of a disqualifying factor by a preponderance of the evidence. [Citations.]” (Osuna, supra, 225 Cal.App.4th at p. 1040.)
“The factual determination of whether the … offense was committed under circumstances that disqualify defendant from resentencing under the Act is analogous to the factual determination of whether a prior conviction was for a serious or violent felony under the three strikes law. Such factual determinations about prior convictions are made by the court based on the record of conviction. [Citation.]” (People v. Hicks, supra, 231 Cal.App.4th at p. 286, italics added.) On appeal, we review the superior court’s factual determination that Willis was armed with a firearm when he committed the offense of resisting arrest based on the substantial evidence standard. (Ibid.)
In White, supra, 223 Cal.App.4th 512, the appellate court held the defendant in that case was ineligible for resentencing under section 1170.126 because “the record of conviction,” which consisted of the trial evidence and appellate record, established he had a firearm in his possession and was personally armed in the commission of the underlying offenses, even though he was not charged with an arming enhancement. (White, at pp. 525–526.) White further held the prosecution was not required to plead and prove charges and/or enhancements which would support facts to disqualify him from resentencing under the Act. (Id. at pp. 526–527.)
A series of cases have reached the same conclusion as White and held the superior court may review the documents contained in the entire record of the qualifying conviction to determine if the defendant is ineligible for resentencing, including prior appellate opinions, and the prosecution is not required to plead and prove any of the disqualifying factors set forth in section 1170.126. (People v. Chubbuck (2014) 231 Cal.App.4th 737, 740, 747; Osuna, supra, 225 Cal.App.4th at pp. 1030–1032, 1038–1039; Blakely, supra, 225 Cal.App.4th at p. 1063; People v. Elder, supra, 227 Cal.App.4th at pp. 1314–1317; Brimmer, supra, 230 Cal.App.4th at pp. 798–800; People v. Guilford (2014) 228 Cal.App.4th 651, 660 (Guilford).)
A different conclusion about the record review was reached in People v. Berry (2015) 235 Cal.App.4th 1417 (Berry), which held that the court cannot consider evidence related to dismissed counts when determining the defendant’s eligibility for resentencing under the Act. Berry acknowledged the holdings in Elder, Blakely, Osuna, and Guilford, which approved the review of the entire record of conviction. However, Berry held that analysis was inapplicable because the firearm allegations against the defendant had been dismissed pursuant to a plea bargain. (Berry, supra, 235 Cal.App.4th at p. 1427.)
Here, the preliminary transcript and Willis’s plea in the case are part of the record of conviction. (People v. Reed, supra, 13 Cal.4th at pp. 224–229; People v. Washington, supra, 210 Cal.App.4th at p. 1045.) Both the transcript and the plea establish that Willis had a shotgun available to him for use during the commission of the underlying offense; and Willis pled to an arming enhancement. In Willis’s case, the arming enhancement finding was not struck because of insufficient evidence or as part of a plea agreement. On the contrary, the arming enhancement subsequently was struck as a result of a motion by the People at sentencing. The facts that supported the arming enhancement remain a part of the record of conviction. (White, supra, 223 Cal.App.4th at pp. 525–527.)
As applied to this case, we find the superior court properly considered the entire record of conviction as permitted by White, Elder, and the other cases, when it found Willis was armed with a firearm and ineligible for resentencing under the Act. Under the Act, if the defendant is “aware during the commission of the offense of the nearby presence of a gun available for use offensively or defensively, the presence of which is not a matter of happenstance. This does not require any intent to use the gun for this purpose. [Citation.]” (People v. Elder, supra, 227 Cal.App.4th at p. 1312, italics in original; Bland, supra, 10 Cal.4th at p. 997; Berry, supra, 235 Cal.App.4th at p. 1427.)
DISPOSITION
The order denying the section 1170.126 petition is affirmed.