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Filed 6/15/15 P. v. Nunez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

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THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS NUNEZ,

Defendant and Appellant.

C073733

(Super. Ct. No. 98F06656)

In 1999 a jury found defendant guilty of possessing a short-barreled shotgun and 

carrying a loaded firearm while an active participant in a street gang. (Pen. Code, 

§§ 12020, subd. (a), 12031, subd. (a)(2)(C).)

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 The court sentenced defendant to 25 years 

to life in state prison. In a previous, unpublished opinion we affirmed the judgment. 

(People v. Nunez (May 8, 2001, C033824) (Nunez).) Defendant filed a petition for recall 

 

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 All further statutory references are to the Penal Code unless otherwise designated.
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of sentence and resentencing under section 1170.126. Following denial of the petition, 

defendant filed this appeal. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND2

Officer Katherine Lester was on patrol in North Sacramento in a marked police car 

quite early one morning in July 1998. As she entered the intersection of Beaumont and 

Bowles Streets, a Thunderbird failed to yield and nearly hit her. Lester moved backward 

to pull next to the Thunderbird and warn the driver to slow down. Defendant, who was 

seated behind the driver, leaned out of the window and aimed a sawed-off shotgun at the 

officer.

As Lester ducked, she heard a shotgun blast and squealing tires. Lester looked up 

to see the Thunderbird speeding away. As the car passed a house on Beaumont Street, 

Lester saw a shotgun fly out the window of the car and land in the street.

Officer Lester gave chase in the patrol car. A few blocks later, the occupants 

abandoned the car and fled on foot. Lester found defendant hiding in the bushes and 

arrested him.

John Cossey was playing cards with a friend in his house near the corner of 

Bowles and Beaumont when he heard the shotgun blast. Cossey went outside and saw a 

patrol car following another car down the street. He also saw a neighbor walk across the 

street toward a sawed-off shotgun lying on the pavement. He estimated the length of the 

gun at 18 to 20 inches. When people started to gather, Cossey left to call the police. The 

gun had disappeared by the time he returned.

A sawed-off shotgun was later recovered and introduced at trial as People’s 

exhibit No. 55. The barrel was approximately 14 inches long, and the overall length was 

26-1/4 inches. Cossey testified it was not the gun he had seen in the street that night, 

 

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 Most of the facts are taken from Nunez, supra, C033824.
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although he acknowledged it was similar in size. Officer Lester also testified the shotgun 

introduced at trial was similar in size to the one she had seen in the street.

Defendant testified in his own behalf. He stated he was seated in the right rear 

passenger seat of the Thunderbird when it nearly collided with the police vehicle. 

Defendant did not know there was a gun in the car until he saw the driver toss it out the 

window, where it discharged on impact.

A jury found defendant guilty of possessing a short-barreled shotgun, count three, 

and carrying a loaded firearm while an active participant in a criminal street gang, 

count four. The jury deadlocked on charges of attempted murder and assault with a 

firearm. (§§ 664/187, subd. (a), 245, subd. (d)(1).) Because defendant had suffered two 

prior convictions of assault with a firearm, the trial court sentenced him to 25 years to life 

under the “three strikes” law but stayed the sentence for carrying a loaded firearm.

Defendant filed a petition for recall of sentence and resentencing pursuant to 

section 1170.126, the Three Strikes Reform Act of 2012 (Act). (§§ 667, 1170.12, 

1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).) The trial court 

found defendant ineligible for resentencing because he used and/or was armed with a 

firearm during the commission of the offense within the meaning of section 1170.126. 

The petition was denied on April 23, 2013. Defendant filed a timely notice of appeal.

DISCUSSION

I.

Defendant contends the trial court’s denial of his petition for resentencing is an 

appealable order. He is correct. The California Supreme Court in Teal v. Superior Court

(2014) 60 Cal.4th 595 held that the trial court’s denial of a petition for recall under 

section 1170.126 is an appealable order.

II.

Within certain parameters, section 1170.126 permits three strikes inmates serving 

life terms for felonies that are neither serious nor violent to petition for resentencing. 
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(§ 1170.126, subds. (b), (e)(1).) Certain factors render an inmate ineligible for 

resentencing. The factor at issue in the present appeal is set forth in section 1170.126, 

subdivision (e)(2), which renders an offender ineligible for recall of sentence if “[d]uring 

the commission of the current offense, the defendant used a firearm, [or] was armed with 

a firearm or deadly weapon . . . .” (§ 667, subd. (e)(2)(C)(iii).)

Referring to facts set forth in our opinion in Nunez, supra, C033824, the trial court 

found the “trial evidence as summarized by the Third District . . . makes it clear under 

either the beyond a reasonable doubt standard or the preponderance of evidence standard 

that [defendant was armed] with a ‘firearm,’ in committing both offenses of which he 

was convicted in this case.” The trial court pointed out that the jury found beyond a 

reasonable doubt that defendant possessed a short-barreled shotgun and carried a loaded 

firearm while an active participant in a street gang.

Defendant argues he was convicted of possession offenses—possession of a shortbarreled shotgun and carrying a loaded firearm—and neither conviction required a 

finding or compelled the conclusion that defendant was armed or used the firearm during 

the commission of the offenses, nor could such a finding be premised on an arming or 

firearm use enhancement, as neither was pleaded or proven. Defendant also notes 

“nothing in the record of conviction indicates” he is not eligible for relief under 

section 1170.126.

The trial court disagreed with defendant’s argument, and so do we. As the trial 

court stated, “To make an ‘extra fact’ determination regarding a prior conviction in order 

to find that it constitutes a ‘serious felony’ for enhancement purposes, a trial court may 

examine the record of conviction, including a summary of evidence recited in any 

appellate opinion rendered in the matter (see People v. Woodell (1998) 17 Cal.4th 448). 

The same principles should apply in the Penal Code § 1170.126 resentencing context.”

In People v. Guilford (2014) 228 Cal.App.4th 651 (Guilford), the defendant 

argued the trial court’s reliance on facts “ ‘beyond the record of conviction’ ” was error 
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and contended the trial court should not have looked at our appellate opinion to determine 

whether the facts showed he was ineligible under section 1170.126 because he intended 

to inflict great bodily injury. Instead, the defendant claimed that if the face of the 

judgment did not reflect a disqualifying factor, the time to consider the underlying facts 

would be at the next step contemplated by the statute, the hearing to determine whether 

the defendant was dangerous. (Guilford, at p. 659.)

We disagreed, reasoning: “Under the three strikes law generally, a trial court may 

look to the whole record of a prior conviction to determine whether the facts meet the 

definition of a strike, including looking to a prior appellate decision. [Citations.] We see 

no reason why Proposition 36 would change this rule. [Citation.] [Fn. omitted.]

“If the prior opinion does not sufficiently establish the facts, ‘the defendant, who 

suffered the conviction and took the appeal, would know of and be able to challenge any 

material flaws or omissions in the opinion.’ [Citation.] Although defendant has 

indicated he wants to air those facts at a hearing on future dangerousness, and claims he 

was denied a hearing to contest the trial court’s interpretation of the facts, he makes no 

claim that our prior opinion misstated them. In such circumstances, we see no reason 

why the trial court’s use of our prior opinion to determine the facts was improper.” 

(Guilford, supra, 228 Cal.App.4th at p. 660.) We also noted that if the defendant 

believed the facts in our prior opinion inaccurate, he had the remedy of petitioning for 

rehearing to point out any deficiencies. Since the defendant did not file a petition for 

rehearing, we presumed the facts previously stated reliably summarized the evidence 

against the defendant. (Id. at pp. 660-661.) Accordingly, we reject defendant’s 

contention here that the trial court’s reliance on our appellate opinion in making an “extra 

fact” determination constitutes error.

Our prior opinion in the present case supports the trial court’s finding that 

defendant was armed during the commission of the offense within the meaning of 

section 1170.126. Our opinion stated: “[Officer] Lester started to move backward so she 
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could pull up next to the Thunderbird and warn the driver to slow down. At that point, 

defendant, who was seated behind the driver, leaned out the car window, and aimed a 

sawed-off shotgun at Officer Lester. She ducked, and immediately heard a shotgun blast 

and squealing tires. Officer Lester looked up to see the Thunderbird speeding away. . . .” 

(Nunez, supra, C033824.) We review the factual basis of the trial court’s finding under 

the sufficiency of the evidence standard of review. (Guilford, supra, 228 Cal.App.4th at 

p. 661.) That standard is met in the present case.

III.

Finally, defendant contends he is entitled to a jury trial under the Sixth and 

Fourteenth Amendments to the United States Constitution as to whether he is eligible for 

resentencing under section 1170.126. We rejected a similar contention in Guilford.

In Guilford we concluded: “This contention already has been resolved against 

defendant. ‘[T]he United States Supreme Court has already concluded that its opinions 

regarding a defendant’s Sixth Amendment right to have essential facts found by a jury 

beyond a reasonable doubt do not apply to limits on downward sentence modifications 

due to intervening laws.’ [Citations.]

“Contrary to defendant’s view, nothing in Alleyne v. United States (2013) 570 U.S. 

___ [186 L.Ed.2d 314, 133 S.Ct. 2151] assists him. As described by our Supreme Court,

in Alleyne, ‘the United States Supreme Court held that the federal Constitution’s Sixth 

Amendment entitles a defendant to a jury trial, with a beyond-a-reasonable-doubt 

standard of proof, as to “any fact that increases the mandatory minimum” sentence for a 

crime.’ [Citation.] The denial of a recall petition does not increase the mandatory 

minimum sentence for a defendant’s crime.” (Guilford, supra, 228 Cal.App.4th at 

pp. 662-663, fn. omitted.)

DISPOSITION

The judgment is affirmed.
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 RAYE , P. J.

We concur:

 BLEASE , J.

 DUARTE , J.