People v. Dibble CA2/5 ( 2015 )

Filed 12/18/15 P. v. Dibble CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B265379
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA034948)
v.
BARRY DIBBLE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
Richard Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and
Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Barry Dibble, appeals from an order denying his section 1170.126
resentencing petition. Defendant is serving indeterminate life terms for crimes
committed in 1995. The first indeterminate term resulted from defendant’s conviction of
second degree robbery. (Pen. Code, 1 § 211.) The second indeterminate term resulted
from defendant’s conviction of assault with a deadly weapon other than a firearm or by
any means of force likely to produce great bodily injury. (Former § 245, subd. (a)(1),
Stats. 1993, ch. 369, § 1, pp. 2168-2169.) Defendant swung a six-to-eight inch knife at
the victims. The jury found defendant personally used a knife during the commission of
the robbery within the meaning of former section 12022, subdivision (b)(1). (Stats. 1995,
ch. 377, § 8, p. 1949.) The jury also found defendant personally used a deadly and
dangerous weapon, a knife, in the commission of the aggravated assault within the
meaning of section 1192.7, subdivision (c)(23). As noted above, the trial court denied
defendant’s section 1170.126 sentencing recall petition. The trial court ruled, “One of
defendant’s current convictions is for robbery (. . . section 211), which is a violent felony
pursuant to . . . section 667.5[, subdivision] (c)(9), making [d]efendant ineligible for
resentencing under . . . section 1170.126[, subdivision] (e)(1).”
Defendant argues: “[Defendant] is serving a third-‘strike’ indeterminate sentence
for assault which is not a serious or violent felony. That he was also convicted of, and
sentenced to prison, on a robbery charge, which is a serious felony does not render him
ineligible for recall and resentencing on the charge which is not a serious felony. (People
v. Johnson and Machado (2015) 61 Cal.4th 674.)” We disagree and affirm the order.
Defendant is ineligible for resentencing. (§ 1170.126, subds. (e)(1), (e)(2).) He is
not serving an indeterminate life term for any nonserious, nonviolent felony. Defendant
is currently serving indeterminate life terms for second degree robbery, a violent and a
serious felony. (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19).) In addition, defendant is
serving an indeterminate term for felonious aggravated assault in which he personally
used a dangerous or deadly weapon, a serious felony. (§ 1192.7, subds. (c)(23), (c)(31).)
1 Further statutory references are to the Penal Code except where otherwise noted.
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Thus, both of defendant’s terms disqualify him from resentencing. (§ 1170.126, subds.
(b), (e)(1).) And during the commission of the current robbery and aggravated assault,
defendant was armed with a deadly weapon thereby disqualifying him from resentencing.
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).)
In addition, defendant’s appellate counsel has interposed two objections which
warrant comment. First, defendant contends there is no showing he was armed.
Defendant reasons that the jury convicted him of assault with a deadly weapon or by
means of force likely to produce great bodily injury. This is incorrect. The jury’s verdict
reads “assault great bodily injury and with deadly weapon, to wit, a knife” which
demonstrates he was armed with a deadly weapon (Italics added.) Moreover, the jury
found defendant personally used a deadly and dangerous weapon, a knife, within the
meaning of section 1192.7, subdivision (c)(23), in the commission of the aggravated
assault. We may judicially notice that finding. (Evid. Code, §§ 452, subd. (d), 459, subd.
(a); Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347, 358, fn. 7
[“Judicial notice can be taken only of the contents of orders, findings of fact, conclusions
of law, and judgments”]; Kilroy v. State (2004) 119 Cal.App.4th 140, 145 [same].) There
is ample evidence defendant used a knife and thus was armed.
Second, defense counsel contends he “does not have the appellate record” we have
judicially noticed. On September 11, 2015, we gave notice of our intention to judicially
notice the record on direct appeal in People v. Dibble (July 1, 1998, B110751) [nonpub.
opn.]. (Evid. Code §§ 452, subd. (d), 455, subd. (a), 459, subds. (a), (b).) These
judicially noticed documents have been available for appellate counsel’s review at all
times. Appellate counsel’s office is approximately four blocks from the clerk’s office
where the documents at issue have always been maintained.
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The order under review is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
MOSK, J.
BAKER, J.
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