People v. Levine CA2/4 ( 2016 )

Filed 8/15/16 P. v. Levine CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B266968
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA023055)
v.
SCOTT WILLIAM LEVINE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
Cheryl Lutz, 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, Assistant Attorney General, Noah P. Hill and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________
INTRODUCTION
Appellant Scott William Levine is before us for a second time. On the prior
occasion, we affirmed his conviction for possession of a firearm by a felon (see
People v. Levine, Sept. 30, 1997, B103480 [unpub.]). Subsequently, appellant
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filed a petition for recall of sentence pursuant to Penal Code section 1170.126.
The trial court denied the petition, determining that appellant was statutorily
ineligible for resentencing, as he was “armed with a firearm” during the
commission of the offense. For the reasons set forth below, we conclude appellant
was ineligible for resentencing. Accordingly, we affirm.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
As we recounted in our prior opinion, appellant was involved in a multi-
vehicle accident. The vehicle appellant was driving had a broken key in the
ignition switch. When questioned by Los Angeles Police Officer Victor Farhood
and his partner, appellant stated he had borrowed the vehicle from a “‘friend.’”
Additionally, appellant could not produce a driver’s license or vehicle registration.
Officer Farhood handcuffed appellant and placed him in the patrol car because,
according to the officer, appellant appeared “‘a little agitated, a little strange.’”
The officer then returned to the vehicle to look for registration and identification
papers. When Officer Farhood sat in the driver’s seat, he saw, in plain view, a
loaded pistol in the center console. Officer Farhood returned to the patrol vehicle
to show the handgun to his partner. As he did so, appellant stated: “‘“Now that
you’ve found it, I’m not going to say anything.”’”
A jury convicted appellant of possession of a firearm by a felon in violation
of section 12021, subd. (a)(1). It also found true the allegations that appellant had
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All further statutory citations are to the Penal Code, unless otherwise stated.
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suffered two “strikes” within the meaning of the Three Strikes law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced appellant, pursuant to
the Three Strikes law, to 25 years to life in prison.
On December 3, 2012, appellant filed a petition for recall of sentence.
Following a hearing, the trial court denied the petition. Based on a review of the
relevant trial transcript and this court’s prior opinion, the court found that during
the commission of the current offense, appellant was armed with a firearm.
Accordingly, it determined that appellant was statutorily ineligible for recall and
resentencing pursuant to section 1170.126.
DISCUSSION
Section 1170.126 generally provides that “a prisoner who is serving an
indeterminate life sentence imposed pursuant to the three strikes law for a crime
that is not a serious or violent felony and who is not disqualified, may have his or
her sentence recalled and be sentenced as a second strike offender unless the court
determines that resentencing would pose an unreasonable risk of danger to public
safety.” (People v. Yearwood (2013) 213 Cal. App. 4th 161, 168.) “[A]n inmate is
disqualified from resentencing if, inter alia, ‘[d]uring the commission of the current
offense, the defendant used a firearm, was armed with a firearm or deadly weapon,
or intended to cause great bodily injury to another person.’” (People v. Osuna
(2014) 225 Cal. App. 4th 1020, 1029 (Osuna), quoting §§ 667, subd. (e)(2)(C)(iii),
1170.12, subd. (c)(2)(C)(iii).) “‘Armed with a firearm’ has been statutorily defined
and judicially construed to mean having a firearm available for use, either
offensively or defensively.” (Ibid.) A person convicted of being in possession of a
firearm by a felon is not automatically precluded from resentencing under section
1170.126, as “possessing a firearm does not necessarily constitute being armed
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with a firearm.” (People v. Blakely (2014) 225 Cal. App. 4th 1042, 1052.) “For
example, suppose a parolee’s residence (in which only he lives) is searched and a
firearm is found next to his bed. The parolee is in possession of the firearm,
because it is under his dominion and control. If he is not home at the time,
however, he is not armed with the firearm, because it is not readily available to him
for offensive or defensive use.” (Ibid.)
Here, the trial court reviewed the relevant trial testimony and this court’s
prior opinion, and found that appellant had a firearm available for use when he
committed the current offense. (See People v. Hicks (2014) 231 Cal. App. 4th 275,
285-286 [trial court may rely on facts in appellate opinion to “determine whether
defendant was armed during the commission of his felon-in-possession offense”].)
That finding was amply supported by the evidence presented at appellant’s trial.
The trial record established beyond a reasonable doubt that a loaded firearm was
located in the center console of the vehicle appellant was driving, readily available
for use, either defensively or offensively. Thus, appellant was “armed” during the
commission of the offense and accordingly, he was statutorily ineligible for
resentencing under section 1170.126.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
COLLINS, J.
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