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Filed 11/27/13 P. v. Salazar CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

JOEY PHILLIP SALAZAR, 

 Defendant and Appellant. 

 E058098 

 (Super.Ct.No. FWV024654) 

 OPINION 

 APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, 

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. 

 Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Michael Pulos, 

Deputy Attorneys General, for Plaintiff and Respondent. 
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 Defendant and appellant Joey Phillip Salazar appeals from an order denying his 

petition for recall of his indeterminate life term under Penal Code section 1170.126, 

subdivision (f).1 His sole issue on appeal is whether being armed with a firearm 

constitutes “using a firearm” to make a violation of Health and Safety Code section 

11370.1, subdivision (a), into a “strike” so as to preclude recall and reconsideration of 

defendant’s sentence pursuant to Penal Code section 1170.126.2I 

FACTUAL AND PROCEDURAL BACKGROUND3

About 9:00 p.m. on February 15, 2002, Upland Police Officer Nicholas Baclit was 

on patrol on Randy Street, a neighborhood known for gang problems. From his position, 

Officer Baclit observed a green Ford Focus, driven by defendant, driving with its high 

 1 We note that the California Supreme Court has granted review in cases that have 

found that the trial court’s order on a postjudgment petition pursuant to section 1170.126 

is a nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, 

review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, 

review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2), 

Cal. Rules of Court.) Even if we were to conclude it was a nonappealable order, we 

could consider, in the interest of judicial economy and because of uncertainty in the law, 

that defendant’s appeal is a petition for writ of habeas corpus or petition for writ of 

mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928 fn. 4 [treating appeal from 

nonappealable order as petition for writ of habeas corpus]; Drum v. Superior Court

(2006) 139 Cal.App.4th 845, 853 [Fourth Dist., Div. Two] [treating appeal as petition for 

writ of mandate due to uncertainty in the law].) In People v. Leggett (2013) 219 

Cal.App.4th 846, 854, the appellate court expressed that when a trial court must 

determine whether the prior convictions qualify under the resentencing provision, such 

issue is appealable. We will review defendant’s appeal. 

2 All future statutory references are to the Penal Code unless otherwise stated. 

3 The factual and part of the procedural background is taken from this court’s 

opinion in defendant’s prior appeal. (People v. Salazar (Dec. 15, 2006, E039146) 

[nonpub. opn.] (Salazar I).) 
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beams on. Officer Baclit followed defendant as he drove into a dead end, made a U-turn, 

and turned back eastward. He then made a quick left turn onto Fairway Avenue, then 

another left turn into an alley. The car eventually came to an abrupt stop, and defendant 

and his unidentified passenger got out of the car and ran. Officer Baclit chased defendant 

while yelling, “police,” and “stop.” Defendant failed to obey the officer’s orders and 

continued to run until tackled by the officer. Both fell to the ground. Defendant got up 

and continued running. Officer Baclit continued chasing defendant, identifying himself 

as an Upland police officer and telling defendant to stop. Defendant did not stop. Officer 

Baclit tackled defendant a second time and held him at gunpoint until backup arrived. 

Defendant was eventually handcuffed, searched, and taken into custody. In 

defendant’s left front pocket was a large baggie containing five small baggies of 

methamphetamine. The five baggies were later examined, and it was determined they 

contained methamphetamine weighing 6.17, 0.75, 0.83, 0.22, and 3.28 grams, 

respectively. Cash in the amount of $3,301 was also found in defendant’s left front 

pocket. $2,600 was in $100 bills; the rest was in $50 bills and one $1 bill. 

A search of the car revealed that it was rented in defendant’s name. In addition, a 

double-barreled 20-gauge shotgun in an unzipped camouflage case was located on the 

rear seat of the car. This was within reach of the driver. The shotgun was loaded and 

operable. A loaded .22-caliber Ruger handgun was also found under the right front 

passenger seat. Officer Baclit noted that the handgun was visible when standing outside 

of the car with the door shut and window closed. 
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Officer Baclit opined, based on the quantity of the methamphetamine, the 

packaging of the methamphetamine, the weapons found in the car, and the totality of the 

circumstances, that the methamphetamine was possessed for sale. Upland Police Officer 

James Potts, a member of the narcotics task force, opined that defendant possessed the 

methamphetamine with the sole intent of selling it. Officer Potts explained that the 

typical user would have his methamphetamine in one bag, not in different bags of 

different sizes. Officer Potts further noted that lack of pay/owe sheets did not affect his 

opinion, as sellers rarely keep pay/owe sheets on their person or in their vehicle and that 

some dealers do not extend credit. Officer Potts also observed that drug dealers often 

possess loaded, operable firearms when they are dealing for protection of their money 

and drugs. (Salazar I, supra, E039146.) 

Following a jury trial in 2005, defendant was convicted of possession of a firearm 

by a felon (Pen. Code, § 12021, subd. (a)(1), count 1) and possession of a controlled 

substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a), count 

3).4 The trial court thereafter found true that defendant had sustained two prior serious 

and violent felony convictions within the meaning of Penal Code section 667, 

subdivisions (b) through (i), and two prior prison terms within the meaning of Penal Code 

section 667.5, subdivision (b). As a result, defendant was sentenced to a total term of 27 

years to life as follows: 25 years to life on count 1, a concurrent term of 25 years to life 

 4 The jury was unable to reach a verdict on counts 2, 4, and 5, possession of a 

handgun by a felon, possession of a controlled substance while armed with a handgun, 

and possession of a controlled substance for sale, respectively. The trial court declared a 

mistrial as to these counts, and they were later dismissed. 
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on count 3, and two consecutive terms of one year each for the two prior prison term 

enhancements. (Salazar I, supra, E039146.) 

On November 6, 2012, the electorate passed Proposition 36, also known as the 

Three Strikes Reform Act of 2012. (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 

2012).) Among other things, this ballot measure enacted section 1170.126, which 

permits persons currently serving an indeterminate life term under the three strikes law to 

file a petition in the sentencing court, seeking to be resentenced to a determinate term as a 

second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that 

the defendant meets the criteria of section 1170.126, subdivision (e), the court may 

resentence the defendant. (§ 1170.126, subds. (f), (g).) 

On December 6, 2012, defendant filed in pro. per. a petition for resentencing 

under section 1170.126. The trial court denied the petition on December 26, 2012, 

because defendant did not satisfy the criteria set forth in section 1170.126, and found 

defendant ineligible based on his current commitment offense for possession of a 

controlled substance while armed with a loaded, operable firearm. (§§ 667, 

subd. (e)(2)(C)(iii), 1170.126, subd. (e)(2)). Defendant filed a timely notice of appeal. 

III 

DISCUSSION 

Defendant argues that the trial court’s denial of his petition to recall his sentence 

was erroneous as a matter of law because being armed with a firearm when committing 

an offense is not a serious or violent felony under Penal Code sections 667.5, 

subdivision (c), or 1192.7. Although possession of a controlled substance while armed 
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with a firearm in violation of Health and Safety Code section 11370.1 is not a serious or 

violent felony as defined in Penal Code sections 667.5, subdivision (c), and 1192.7, 

defendant was still ineligible for resentencing under Penal Code section 1170.126, 

subdivision (e)(2). 

Proposition 36 amended the three strikes statutes (§§ 667, 1170.12) to require that 

before a defendant may be sentenced to an indeterminate life term in prison under the 

three strikes law, the new felony (the commitment offense) must generally qualify as a 

serious or violent felony. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2), (C).) An 

exception to this general rule exists, among others, where the prosecution has pled and 

proved the defendant used a firearm in the commission of the current offense, was armed

with a firearm or deadly weapon, or intended to cause great bodily injury to another. 

(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) If the prosecution pleads and 

proves this exception exists, the defendant must be sentenced under the three strikes law. 

Proposition 36 also added section 1170.126, which applies exclusively to those 

“persons presently serving an indeterminate term of imprisonment pursuant to 

paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of 

Section 1170.12, whose sentence under this act would not have been an indeterminate life 

sentence.” (§ 1170.126, subd. (a).) Section 1170.126 sets forth a procedure through 

which certain prisoners can petition the court for resentencing. Such a person may file a 

petition to recall his or her sentence and be sentenced as a second strike offender. 

(§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if none of his or her 

commitment offenses constitute serious or violent felonies and none of enumerated 
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factors disqualifying a defendant for resentencing under Proposition 36 apply. 

(§ 1170.126, subd. (e).) 

Section 1170.126, subdivision (e)(1), provides that a defendant is eligible for 

resentencing if he or she is serving an indeterminate term of life imprisonment imposed 

pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 

1170.12 “for a conviction of a felony or felonies that are not defined as serious and/or 

violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” 

(§ 1170.126, subd. (e)(1).) We agree with defendant that his current commitment felony 

offense of possession of a controlled substance while armed with a loaded, operable 

firearm is not a serious or violent felony under sections 667.5, subdivision (c), or 1192.7, 

subdivision (c). However, the inquiry does not end with whether or not the current 

conviction is a serious or violent felony. 

Section 1170.126, subdivision (e)(2), provides, as pertinent here, that a defendant 

is eligible for resentencing if “[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.” (§ 1170.126, 

subd. (e)(2), italics added.) Being armed with a firearm during the commission of a 

current offense is listed in section 667, subdivision (e)(2)(C)(iii), and section 1170.12, 

subdivision (c)(2)(C)(iii). It is undisputed here that defendant was armed with a loaded, 

operable firearm during the commission of his current commitment offense of possession 

of methamphetamine. As such, under section 1170.126, subdivision (e)(2), defendant 
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was ineligible for resentencing based on the fact that defendant was armed with a firearm 

during the commission of the current felony offense. 

Defendant, however, argues that possession of a controlled substance while armed 

with a firearm under Health and Safety Code section 11370.1, subdivision (a), is not a 

violent felony listed in section 667.5 or a serious felony enumerated in section 1192.7 

and, therefore, the trial court erred as a matter of law in concluding he was ineligible to 

have his three strikes sentence recalled. He asserts that because his petition to recall his 

sentence complied with section 1170.126, subdivision (e)(1), and his current offense was 

neither a serious nor violent felony, the trial court’s conclusion that he was ineligible “for 

recall of the sentence based upon a violation of Health and Safety Code section 11370.1 

because he had been armed with a firearm was erroneous as a matter of law.” 

Defendant’s argument lacks merit and fails to take into account the criteria set forth in 

section 1170.126, subdivision (e)(2). An inmate is eligible for such resentencing if none 

of his or her commitment offenses constitute serious or violent felonies and none of the 

enumerated factors disqualifying a defendant for resentencing under Proposition 36 

apply. (§ 1170.126, subd. (e).) 

The threshold eligibility determination is made by applying express objective 

criteria to information set forth in the petition filed by the inmate: Is the inmate currently 

serving a third strike life term? Is that life term for conviction of a felony or felonies that 

are not defined as serious or violent felonies by sections 667.5, subdivision (c), or 1192.7, 

subdivision (c)? If the current felony is not a serious or violent offense, was the current 

sentence imposed for any of the offenses listed in sections 667, subdivision (e)(2)(C)(i)–
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(iii), or 1170.12, subdivision (c)(2)(C)(i)–(iii)? Are any of the inmate’s prior convictions 

for felonies listed in sections 667, subdivision (e)(2)(C)(iv), or 1170.12, 

subdivision (c)(2)(C)(iv)? 

Hence, even if a defendant can show that his or her current felony is not a serious 

or violent offense, as in this case, defendant still needs to satisfy the criteria set forth in 

subdivision (e)(2) of section 1170.126. Here, defendant’s current sentence was imposed 

under sections 667, subdivision (e)(2)(C)(iii), and 1170.12, subdivision (c)(2)(C)(iii), 

because the prosecution pled and proved defendant was armed with a firearm when he 

committed the crime of possession of methamphetamine. And, as previously explained, 

Proposition 36’s amendment to the three strikes statutes to require the commitment 

offense be a serious or violent felony does not apply in cases where the prosecution has 

pled and proved the defendant was armed with a firearm or deadly weapon. (§§ 667, 

subds. (e)(2)(A), (C)(iii), 1170.12, subds. (c)(2), (C)(iii).) 

Accordingly, we find the trial court did not err in finding defendant was ineligible 

for resentencing under section 1170.126. 
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II 

DISPOSITION 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

RAMIREZ 

 P. J. 

We concur: 

RICHLI 

 J. 

CODRINGTON 

 J.