Filed 4/17/14 P. v. Benedict CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MICHAEL DAVID BENEDICT, Defendant and Appellant. G048662 (Super. Ct. No. 95NF1353)

O P I N I O N

Appeal from a postjudgment order of th e Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Eric Weaver, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

* * *2 Defendant Michael David Benedict appeals from a postjudgment order denying his petition for resentencing under Pe nal Code section 1170.126. His major contention is that the court erred in not givi ng him a jury trial to determine whether he was eligible for resentencing un der that statute. The Attorn ey General argues the order is not appealable; even if appealable, the court properly denied the petition because defendant is not eligible under the statute. The appealability issue is pending in the California Supreme Court. ( Teal v. Superior Court ( People ) review granted July 31, 2013, S211708.) While it is our view that the order is subject to appeal, we agree with the Attorney Gene ral the court properly denied the petition.

DISCUSSION

1. Background Almost 10 years ago, a jury co nvicted defendant of possession of methamphetamine (Health & Saf. Code, § 1137 7, subd. (a)) and of being a felon in possession of a firearm (Pen. C ode, former § 12021, subd. (a), now Pen. Code, § 29800, subd. (a)(1); all further statutory references ar e to this code). The court found he had two prior serious felony convictions and impose d an indeterminate 25-years-to-life term pursuant to the “Three Strike s” law (§§ 667, subs. (b)-(i ), 1170.12.) He appealed, contending his sentence constitute d cruel and unusual punishme nt in violation of state
and federal Constitutions and ch allenged the constitutionality of a jury instruction. We
concluded neither contention had merit and affirmed the judgment. Defendant now
returns to this court after the trial cour t denied his petition for resentencing under
section 1170.126.3 2. Appealability of the Order De nying the Petition for Resentencing As noted and as both parties recogni ze, the appealability of the order is pending in our Supreme Court. Rather than delay resolution of this case, we will weigh
in on the issue. Section 1237, subdivision (b) allows a defendant to appeal “[f]rom any order made after judgment, affecting the substa ntial rights of the party.” Whether or not
a defendant receives a reduced sentence under section 1170.1 26 affects the substantial rights of that party and is thus appealable. Also, because the issu e could not have been raised in an appeal from the judgment, this does not create an opportunity for a “second appeal.” There is no requirement the statute expressly provide for the order to be appealable. This is illustrated by People v. Totari (2002) 28 Cal.4th 876, where the court
held that the denial of a motion to vacate a judgment for failure to advise the defendant of possible adverse immigration consequences was appealable. The court noted this was so even though the statute, s ection 1016.5, requiring such advisement did not expressly provide for an appeal. The c ourt stated, “Because the gro unds supporting a nonstatutory motion are not specifically defined, the ‘no s econd appeal’ rule [citation] serves as a procedural device to discour age defendants from raising any postjudgment claim that
could have been raised before imposition of judgment or by wa y of direct appeal from the original judgment. [Citation] On the other hand, the Legislature has established specific requirements for a motion to vacate under s ection 1016.5. Once the Legislature has
determined that a noncitizen defendant has a substantial right to be given complete
advisements and affords defendant a means to obtain relief by way of a statutory postjudgment motion to vacate, the ‘no second appeal’ rule loses its urgency and a denial order qualifies as an ‘order made after judgm ent, affecting the substantial rights of the party’ [citation].” ( Id. at pp. 886-887.)4 Section 1170.126 is a procedure entitling incarcerated defendants to potentially obtain a reduced sentence. The righ t to have the trial court consider whether defendants qualify for such a lower sentence confers a substantial right on the specified defendants. Thus, we conclude the order is appealable under section 1237, subdivision (b).

3. Trial Court’s Denial of the Petition for a Reduced Sentence Section 1170.126, subdiv ision (e) provides “[a]n inmate is eligible for resentencing if: (1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivisi on (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 subdi vision (c) of Section 1192.7. [¶] (2) The inmate’s current senten ce 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.” Section 667, subdivision (e)(2)(C)( iii) applies where, “[d]uring the commission of the current offense, the defe ndant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.” Section 1170.12, subdivision (c )(2)(C)(iii) contains identical language. Therefore, a
defendant sentenced under the Three Strike s law who was armed with a firearm during the commission of the crime, is ineligible for resentencing under section 1170.126, subdivisions (e)(1) and (2). We noted at the outset that the jury convicted defendant of being a felon in possession of a firearm (Pen. Code, former § 12021, subd. (a). When sentencing defendant, the court struck that count “in the in terest of justice.” Thus, to return to the language of section 11 70.126, subdivision (e)(1) and (2), it cannot be said defendant was5 “serving” a sentence or that his current sent ence was “imposed” for being armed with a gun. Defendant argued this proposition in th e trial court, and rec ited it in his opening brief. But he does not argue the point here . Therefore, we consider it abandoned. ( People v. Stanley (1995) 10 Cal.4th, 764, 793.) The trial court relied on the prelimin ary hearing transcript to determine
defendant was armed at the tim e he committed the crime for which he was sentenced and
concluded “it’s as clear as da y that [defendant] was armed with a firearm” and stated defendant was ineligible for resentencing. Defendant argues here th at he was entitled to a ju ry trial to determine whether he was armed with a gun. He based this argument on Alleyne v. United States (2013) __ U.S. __ [133 S.Ct . 2151, 186 L.Ed .2d 314] and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2 348, 147 L.Ed.2d 437]. In Apprendi , the United States Supreme Court held that “any fact that in creases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ( Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) And in Alleyne
v. United States , the same court declared that a fact which increases the mandatory
minimum sentence must likewise be submitted to a jury, and proved beyond a reasonable doubt. ( Alleyne v. United States, supra, __ U.S. at p. __ [133 S.Ct. at p. 2155, 186 L.Ed.2d at p. 321].) Defenda nt’s reliance on these cases is based upon a contention that “because the finding that appellant was armed with or used a firearm during the felon in possession of a firearm offense increase d the mandatory minimum term of the resentencing provision from a two-strikes sent ence to a three strikes sentence.”
Defendant also relies on a statement in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], that “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury” ( id

. at p. 281). The failure of the applicability of these cases here lies in the difference between a proceed ing which would increase a sentence and one which would decrease6 the sentence. As the trial court pointed out, “[ Apprendi ] really deals with aggravating a sentence. [Defendant has] already been sent enced. That’s already been done. We are here to figure out whether I should lower the sentence, whether to make him eligible, number one, and, two, to a judge consider if he should have his sentence reduced.” Although apparently the Apprendi argument was not made there, the recent
case of People v. White (2014) 223 Cal.App.4t h 512, also deemed it appropriate for the court to look beyond the crime for which defendant had been sentenced to determine
whether the “armed-with-a-firearm” exce ption to resentencing applied. ( Id . at p. 523.) There, the defendant had been convicted and sentenced as a felon in possession of a firearm. The court recognized that “posse ssion of a firearm does not necessarily require that the possessor be armed with it” ( id. at p. 524), but affirmed the denial of resentencing
because “the record of conviction establishes that the ap plicable resenten cing eligibility
criterion set forth in section 11 70.126 [subdivision] (e)(2) is not satisfied, and, thus, [the defendant] is ineligible fo r resentencing relief.” ( Id . at p. 524.)

DISPOSITION

The postjudgment order denying resentencing is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

FYBEL, J.

THOMPSON, J.