Filed 4/14/15 P. v. Villa CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. MANUEL VILLA, Defendant and Appellant. H039675 (Monterey County Super. Ct. No. SS060440)

Defendant Manuel Villa, a “Three St rikes” prisoner who is serving an indeterminate life sentence, appeals from an order denying his petition for recall of his sentence pursuant to Pena l Code section 1170.126. 1 Defendant contends: (1) reversal is required because he was deprived of his right to counsel as to the initial screening of his petition by the trial court to determine his el igibility for resentenci ng; and (2) the trial court erred in concluding that he was ineligible for resentencing. 2 We find no error and affirm.

1 Our Supreme Court recently held that an order denying a petition for recall of a sentence because the defendant failed to meet the threshold eligib ility requirement of Penal Code section 1170.126, subd ivision (b) is appealable. ( Teal v. Superior Court (2014) 60 Cal.4th 595, 597.) 2 Defendant has also filed a petition fo r writ of habeas corpus, which we will dispose of by separate order.2 I. Three Strikes Reform Act of 2012 The Three Strikes Reform Act of 2012 (Act) amended Penal Code sections 667 and 1170.12 3 and added section 1170.126. ( People v. Superior Court ( Martinez ) (2014) 225 Cal.App.4th 979, 984.) Under the previ ous version of the Three Strikes law, a defendant who had been convicted of two or more serious or violent felonies was subject to an indeterminate life senten ce of 25 years to life after his or her conviction of any new felony. ( People v. Yearwood (2013) 213 Cal.App.4th 161, 167 ( Yearwood ).) The Act changed the Three Strikes law by reserving indeterminate life sentences for cases in which the new offense is also a serious or vi olent felony, unless the prosecutor pleads and proves an enumerated disqualifying factor. ( Yearwood , at p. 167.) In all other cases, a recidivist defendant will be sentenced as a seco nd strike offender instead of a third strike offender. ( Yearwood , at pp. 167-168.) “The Act also created a postconviction release proceeding whereby a prisoner who is servin g an indeterminate lif e sentence imposed pursuant to the three strikes law for a crime th at is not a serious or violent felony and who is not disqualified, may have his or her se ntence recalled and be sentenced as a second strike offender unless the court determines th at resentencing would pose an unreasonable risk of danger to public sa fety. (§ 1170.126.)” ( Yearwood , at p. 168.) 4

3 All further statutory references are to the Penal Code. 4 Defendant relies on People v. Guinn (1994) 28 Cal.App.4th 1130 ( Guinn ), People v. Ybarra (2008) 166 Cal.App.4th 1069 ( Ybarra ), and People v. Murray (2012) 203 Cal.App.4th 277 ( Murray ) to support his argument that the use of “shall”/“unless” language of section 11 70.126 creates a presumption in fa vor of resentencing. Concluding that the language of section 190.5 was unambiguous, Guinn held that the statute established a presumption of life without parole as the sentence for a 16- or 17-year-old who has been convicted of a sp ecial circumstance murder. ( Guinn , at pp. 1141-1142; accord Ybarra , at p. 1089; Murray , at p. 282.) Section 190.5 provides that the penalty “shall be confinement in the state prison for life without possibility of parole or, at the discretion of the court, 25 years to life.” The California Supreme Court concluded that section 190.5 was ambiguous a nd adopted the construction that rendered it constitutional. ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1371-1373 ( Gutierrez ).) Thus, Gutierrez disapproved Guinn , Ybarra , and Murray . ( Gutierrez , at pp. 1370, 1387.) ( Continued )3 II. Statement of the Case In 2009, defendant was charged with, an d a jury convicted him of, possession of a deadly weapon by a prisone r. (§ 4502, subd. (a).) 5 Defendant also admitted that he had three prior strike convictions. (§ 1170. 12, subd. (c)(2).) The trial court denied defendant’s motion to strike the prior strike convictions and sentenced him to 25 years to life in prison. This court affirm ed the judgment of conviction. On April 22, 2013, defendant filed a pro per petition for recall of his indeterminate life sentence pursuant to sec tion 1170.126. Defendant argued that he was eligible for resentencing because neither his current offense nor his prior strike convictions disqualified him. On May 6, 2013, the trial court denied the petition and stated: “After initial review of the petition and the case file, the court has determined that petitioner is not eligible for the relief request ed under section 1170.126, su bdivision (e)(2) because the record shows that he was armed with a de adly weapon during the commission of the newly convicted offense within the mean ing of section 1170.126, subdivision (c)(2)(C)(iii) and section 667, subdivision (e)(2)(C)(iii).” The trial court based its conclusion on facts taken from the pr eliminary hearing transcript. Defendant filed a timely notice of appeal which was subsequently amended.

Defendant argues that the language of s ection 1170.126, subdivision (f) is similar to section 190.5 and creates a presumption of resenten cing. Section 1170.126, subdivision (f) provides in relevant part: “If the petitioner satis fies the [eligibility] criteria in subdivision (e), the petitioner shall be resentenced [as a second striker] unless the court, in its discretion, determines th at resentencing the pe titioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f), italics added.) Here, as discussed, infra , defendant failed to satisfy th e eligibility criteria in section 1170.126, subdivision (e), and th us we need not consider any issue regarding a statutory presumption. 5 At defendant’s request, this court has taken judicial notice of the record in People v. Villa (April 12, 2010, H034355) [nonpub. opn.] ( Villa I ).4 III. Statement of Facts The following summary is taken from our unpublished opinion in Villa I . “At approximately 9:28 a.m. on Ma y 25, 2006, Sergeant Paul Su llivan and other staff began releasing inmates from two buildings into th e exercise yard at Salinas Valley State Prison. Sergeant Sullivan saw defendant and another inmate, Velez, attack two other inmates, Rodriguez and Gallegos. Defendant and Velez were Northerner gang members, and Rodriguez and Gallegos were Fresno Bulldog gang member s. The four men fought with clenched fists. [¶] Sergeant Sullivan ordered the men to get down into a prone position, but they failed to comply. He then saw something drop fro m defendant’s hand. Since Sergeant Sullivan was spra ying the inmates with pepper spray, he was unable to immediately retrieve the object. As Velez and Gallegos were moving to a prone position, Sergeant Sullivan saw Velez th row an object. [¶] After the four inmates were handcuffed, Sergeant Su llivan retrieved the objects. The object droppe d by defendant was a six-inch knife made of melted plastic with a sharpened point. In Sergeant Sullivan's opinion, the knife that defendant dropped coul d be used as a stabbing instrument capable of inflicting great bodily injury or death. There were no useable fingerprints on defendant’s knife.”

IV. Discussion Defendant contends that reve rsal is required, because he was deprived of his right to counsel when the trial court conducted th e initial screening of hi s petition to determine his eligibility for resentencing under section 1170.126. He contends that since he had established “a prima facie case for resentenci ng under the provisions of section 1170.126 and the Reform Act, he was en titled to appointment of counsel as a matter of right.” “The Sixth Amendment right to the assist ance of counsel app lies at all critical stages of a criminal proceeding in which the substantial rights of a defendant are at stake. [Citation.]” ( People v. Crayton (2002) 28 Cal.4th 346, 362.) Thus, a defendant is5 entitled to the assistance of counsel at a sentencing hearing. (See Gardner v. Florida (1977) 430 U.S. 349, 358.) But the initial screening of the petition to determine eligibility for resentencing is not a sentencing hearing. Relying on People v. Shipman (1965) 62 Cal.2d 226 ( Shipman ) and In re Clark (1993) 5 Cal.4th 750 ( Clark ), defendant argues that there is a right to counsel in postconviction challenges where a prima facie case for relief is made. Shipman held that a petitioner who has made a prima facie case for coram nobis relief is entitled to the appointment of counsel. ( Shipman , at pp. 232-233.) Clark held that a petitioner who has made a prima facie case leading to issuance of an order to show cause as to the validity of a judgment is also entitled to th e appointment of counsel. ( Clark , at p. 780.) However, here, defendant failed to make a prima faci e case that he satis fied the eligibility requirements for resentencing under the Act. A prisoner’s petition to recall his or her sentence must state “all of the currently charged felonies, which resulted in the [third strike life sentence]” and “all of the prior [strike] convictions.” (§ 1170.126, subd. (d).) The trial court must then determine whether the prisoner has satisfied the requireme nts set forth in subdivision (e) of section 1170.126. (§ 1170 .126, subd. (f).) A prisoner is eligib le for resentencing if: (1) he or she is currently serving a third strike life term for conviction of a felony or felonies that are not defined as serious and/or violent felonies by section 667.5, subdivision (c) or section 1192.7, subdivision (c); (2) the “current sentence wa s not imposed for any of the offenses” listed in secti on 667, subdivision (e)(2)(C)(i )-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii); and (3) none of th e prisoner’s prior convictions are listed in section 667, subdivision (e)(2)(C)(iv) or se ction 1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126, subd . (e).) If the prisoner has met these requirements, the trial court shall resentence him or her, “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safe ty.” (§ 1170.126, subd. (f).)6 Here, defendant’s petition for recall of hi s sentence states that his conviction for possession of a deadly weapon by a prisoner resulted in the third strike life sentence and that he had multiple prior strike convic tions. Possession of a deadly weapon by a prisoner is not defined as a se rious and/or violent felony, a nd thus defendant satisfied the first eligibility requirement. As to the second requirement, defendant also alleged that “his current sentence was not imposed for any of the offenses appearing in section 667 (e)(2)(C) (i)-(iii) and section 1170.12(c)(2)(C )(i)-(iii).” However, his petition and the record of conviction established otherwise. As the trial court found, defendant was ineligible for resentencing, because “[d]ur ing the commission of the current offense, [he] . . . was armed with a . . . deadly w eapon . . . .” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) 6 “[A]rmed with a . . . deadly weapon” is no t defined in either section 667 or section 1170.12. In interpreting a vot er initiative such as the Act, we apply the same rules of construction employed for interpreting statutes. ( People v. Rizo (2000) 22 Cal.4th 681, 685 ( Rizo ).) We first consider “ ‘the language of the statute, gi ving the words their ordinary meaning.’ [Citation.]” ( Ibid. ) A person is armed when the weapon is “ ‘available for use, either offe nsively or defensively.’ ” ( People v. Pitto (2008) 43 Cal.4th 228, 236; see also CALCRIM No. 3130.) In the recitation of fa cts in defendant’s petition, he states that he an d “another inmate [were] involve d in a physical altercation involving two to four other inmates who all fought with clen ched fists” at the prison when Sergeant Sullivan “allegedly” saw him dr op a weapon. Defend ant also points out that his fingerprints were not found on the w eapon and he “was the only inmate to have suffered a knife wound – a small puncture woun d to his left buttock – which was caused by a sharp object.” Thus, defendant concedes in his petition that he was involved in a

6 Neither party raises any issue regardin g the third eligibility requirement set forth in section 1170.126, subdivision (e)(3).7 fight with other inmates and disputes only th at he possessed a deadly weapon during the fight. However, defendant was convicted of possession of a deadly weapon, and the record of conviction establishes that he ha d this weapon available for offensive or defensive use during the fight. Based on this record, the trial court correctly found that defendant was armed with a de adly weapon when he commi tted the current offense. Defendant now contends that he “was engaged in a fight prior to the weapon being discarded, and did not use the weapon, and, in fact, injured only himself with the weapon.” However, evidence that defendant did not “use” the deadly weapon is not required to support a finding that he was “armed” with such a weapon. Defendant next challenges the trial cour t’s finding that he was ineligible for resentencing on the ground that the prosecutor failed to plead and prove that he was armed with a deadly weapon in the current offense. This court recently held in People v. Chubbuck (2014) 231 Cal.App.4th 737 ( Chubbuck ), that a prosecutor is not required to plead and prove any of the disqualification factors set fo rth in section 1170.126. ( Chubbuck , at p. 740.) Chubbuck agreed with the analysis in People v. White (2014) 223 Cal.App.4th 512 ( White ), People
v. Osuna (2014) 225 Cal.App.4th 1020 ( Osuna ), People v. Blakely (2014) 225 Cal.App.4th 1042 ( Blakely ), People v. Elder (2014) 227 Cal.App.4th 1308, and People v.
Brimmer (2014) 230 Cal.App.4th 782. ( Chubbuck , at p. 745.) As in the present case, the defendant in Chubbuck argued that the statement of voter intent in section 1170.126, subdivision (a) made the procedural re quirements of secti ons 667 and 1170.126 applicable to prisoners whose current offens es were committed after the Act became law. ( Chubbuck , at p. 746.) Chubbuck pointed out that the Ac t “explicitly distinguishes between the procedures applicable to rese ntencing and the procedures applicable prospectively, to defendants who are being sentenced for a new offense,” and rejected this argument. ( Chubbuck , at p. 746

. )8 Defendant argues that his third strike se ntence was not imposed for one of “ ‘the offenses appearing in . . . clauses (i) to (iii ), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.’ (§ 1170.126, subd. (e)(2).” Noting that clause (iii) describes “only a fact relating to an unsp ecified offense,” that is, that “[d]uring the commission of the current offense, the defe ndant . . . was armed with a . . . deadly weapon,” defendant claims that the provis ion can be construe d as describing an “offense,” only if it is read in conjunction with the pleading a nd proof language of section 1170.12, subdivision (c)(2)(C). Chubbuck found no merit to this argument: “While section 1170.126, subdivision (e)(2) ‘expressly cross-references “clauses (i) to (iii), inclusive” of [sections] 667(e)(2)(C) and 1170 .12(c)(2)(C), nothing in the language of section 1170.126(e)(2) or of any of the othe r subdivisions of sec tion 1170.126 governing an inmate’s petition for resentencing relief un der the Reform Act references the pleadand-prove language.’ ” ( Chubbuck , supra , 231 Cal.App.4th at p. 747, quoting White , supra , 223 Cal.App.4th at pp. 526-527.) Defendant also argues that “courts are ob ligated to construe any ambiguity in a penal statute in a manner which avoids co nstitutional problems” and thus “judicial factfinding in the present case about the nature of the ‘current’ conviction is constitutionally dubious.” Chubbuck rejected this argument: “[W]e find no ambiguity as to whether section 1170.126, subdivision (e )(2) incorporates the pleading and proof requirements of section 1170.12, subdivision (c)(2)(C). As explained above, the Reform Act explicitly distinguishes between the proc edures applicable to resentencing and the procedures applicable to defendants who are being sentenced for a new offense, and section 1170.126, subdivision (e)(2 ) only ‘expressly cross-refere nces “clauses (i) to (iii), inclusive” of [sections] 667(e)(2)(C) and 1170.1 2(c)(2)(C),’ not any other provisions of those statutes. [Citation.]” ( Chubbuck , supra , 231 Cal.App.4th at p. 747.) Defendant next argues that the Act shoul d be broadly and liber ally construed to promote its legislative goals to ensure that “t he draconian penalty of 25 to life is reserved9 only for defendants whose ‘current conviction is for a violent or serious crime’ ” and to save taxpayers’ money by cutting costs. Thus , he claims that “an interpretation of section 1170.126 which includes the ‘p leading and proof’ requirement for the resentencing exclusions clearly promotes the remedial goals of the initiative.” Chubbuck also rejected this argument: “However, th e goals of the Reform Act included ensuring that ‘ “ dangerous criminals serve their full sentences” ’ ( Osuna , supra , 225 Cal.App.4th at p. 1037), and the Reform Act explicitly included, as a factor disqualifying an inmate from resentencing, [those defendants who were armed with a deadly weapon]. . . . We are not persuaded that in order to effectuate the reme dial purposes of the Reform Act, facts that disqualify an offense from resentencing eligib ility must have been pleaded and proved in a prior proceeding, rather than determin ed by a judge at a resentencing eligibility proceeding. [¶] Although reducing senten ces would save taxpaye r money, we do not agree with defendant that this is a sufficient reason to impose a pleading and proof requirement on resentencing disqualification crite ria. ‘It is clear the electorate’s intent was not to throw open the prison doors to all third strike offenders whose current convictions were not for serious or violent fe lonies, but only to those who were perceived as nondangerous or po sing little or no risk to the public.’ ” ( Chubbuck , supra , 231 Cal.App.4th at p. 748, quoting Osuna , supra , 225 Cal.App.4th at p. 1038.) Defendant urges this court to apply “the ru le of lenity” to support his interpretation of section 1170.126, subdivision (e)(2). Chubbuck also considered this argument: “[T]he rule of lenity ‘applies “ ‘only if the court can do no more than gue ss what the legislative body intended; th ere must be an egregious ambiguity and uncertaint y to justify invoking the rule.’ ” [Citation.]’ [Citation.] As stat ed above, we find no ambiguity as to whether section 1170.126, subdivision (e)(2) incorporates the pleading and proof requirements of section 1170.12, subdivision (c)(2)(C).” ( Chubbuck , supra , 231 Cal.App.4th at p. 748.) In sum, we agree w ith the analysis in Chubbuck and reject defendant’s arguments.10 Citing to Apprendi v. New Jersey (2000) 530 U.S. 466, defendant also contends that “[i]t is a fundamental principle of constitutional law that a sentence cannot be imposed for a particular aggravated crime or enhancement unless the facts giving rise to the aggravation or enhancement are pled and pr oven to a jury beyond a reasonable doubt, or admitted by the defe ndant.” This argument was rejected in Blakely , supra , 225 Cal.App.4th 1042. Blakely reasoned: “A finding an in mate is not eligible for resentencing under section 1170.126 does not increase or aggravate that individual’s sentence; rather, it leaves him or her subject to the sentence origina lly imposed. In the case of a third strike offender such as defenda nt, that sentence is the indeterminate term of 25 years to life in prison that the trial court permissibly imposed at the time defendant was convicted of his current offense, ‘solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [C itations.]’ [Citation.] The trial court’s determination in the secti on 1170.126 proceeding that defendant was armed with a firearm during the commission of his current offense did not increase the penalty to which defendant was already subject, but inst ead disqualified defendant from an act of lenity on the part of the electorate to wh ich defendant was not co nstitutionally entitled.” ( Id. at pp. 1061-1062.) We find the analysis of Blakely persuasive and reject defendant’s contention. Noting that the Act requires that a life se ntence will be imposed if “[d]uring the commission of the current offense, the defe ndant . . . was armed with a . . . deadly weapon . . . .” (§ 1170.12, subd. (c)(2)(C)( iii)), defendant next cont ends that the phrase “during the commission of the current offe nse” “requires an additional, separate ‘tethering’ felony offense in order to be ap plicable.” Defendant asserts that “[t]his conclusion flows from the Legislature’s repeated use of the identical phrase, ‘during the commission of the current offense,’ in se veral enhancement statutes, and the settled construction of the meaning of th is phrase by the courts.”11 However, defendant’s citations to the ar ming enhancement statutes establish that the language is not identical, because these statutes use the phrase “in the commission of.” (§ 12022, subd. (a)(1) [one year enha ncement for any person “armed with a firearm in the commission of a felony or attempted felony . . . .”]; § 12022, subd. (b)(1) [one year enhancement where person “personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony . . . .”]; and § 12022.5, su bd. (a) [3, 4, or 10 year enhancement for person “who personally uses a firearm in the commission of a felony or attempted felony . . . .”].) Osuna , supra , 225 Cal.App.4th 1020 explained the distinction. “However, unlike section 12022, which requires that a defendant be armed

‘ in the commission of’ a felony for additional pu nishment to be imposed (italics added), the Act disqualifies an inmate from eligibilit y for lesser punishment if he or she was armed with a firearm ‘ during the commission of’ the current offense (italics added). ‘During’ is variously defined as ‘throughout the continuance or course of’ or ‘at some point in the course of.’ [Citation.] In othe r words, it requires a temporal nexus between the arming and the underlying felony, not a facilitative one. The two are not the same. [Citation.]” ( Osuna , at p. 1032.) “Since the Ac t uses the phrase ‘[d]uring the commission of the current offense,’ and not in the commission of the current offense (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the imposition of additional punishment but rather eligibility for reduced punishment, we conclude the literal language of the Act disqualif ies an inmate from resentencing if he or she was armed with a firearm during the unlawful possession of that firearm.” ( Ibid. ) Applying the analysis of Osuna to the present case, we conclude that the Act does not mandate exclusion for resentencing only wher e there is a separate tethering felony in which the defendant is armed with a deadly weapon.

V. Disposition The order is affirmed.12 _______ ____________ ____________ Mihara, J.

WE CONCUR:

________________ ______________ Premo, Acting P. J.

________________ ______________ Elia, J.