People v. Turner CA2/2 ( 2015 )

Filed 9/3/15 P. v. Turner CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
THE PEOPLE, B260388
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA025469)
v.
RODNEY TURNER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
William C. Ryan, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director,
Richard B. Lennon, Staff Attorney, 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,
Supervising Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for
Plaintiff and Respondent.
******
Rodney Turner (defendant) was sentenced to three prison sentences of 25 years to
life, one for each of his “third-strike” convictions. Following the voters’ enactment of
Proposition 36, which is formally known as the Three Strikes Reform Act (Act),
defendant petitioned the court for resentencing on two of the convictions. The trial court
denied his petition, reasoning that his ineligibility for resentencing on one of the counts
prohibited resentencing on the other counts as well. This was incorrect under the
California Supreme Court’s recent decision in People v. Johnson (2015) 61Cal.4th 674
(Johnson), which requires courts to assess eligibility for resentencing on a count-by-count
basis. We nevertheless affirm because defendant is ineligible for resentencing on each
individual count.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background Facts
In May 1996, defendant aided and abetted two others in committing an armed
robbery of McDonald’s employees in a McDonald’s drivethrough. (People v. Turner
(October 16, 1998, B112835) [nonpub. opn.], at pp. 2-3.) After law enforcement traced a
license plate observed at the robbery to defendant’s car, they effected a traffic stop and
found defendant with a loaded firearm on his person and a small rock of cocaine in the
car’s center console. (Id., at p. 3.)
The People charged defendant with (1) second degree robbery (Pen. Code,
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§ 211) ; (2) felon in possession of a firearm (§ 12021, subd. (a)(1)) ; and (3) possession
of a controlled substance (Health & Safety Code, § 11350, subd. (a)). The People further
alleged that defendant’s two 1992 convictions for robbery constituted two prior “strikes”
within the meaning of the Three Strikes law (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 This section was subsequently repealed and reenacted as section 29800,
subdivision (a)(1). (See Cal. Law Revision Com. & Historical and Statutory Notes, 51D,
pt. 4, West’s Ann. Pen. Code (2012 ed.) foll. § 29800, p. 194.)
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(d)), and two prior serious felonies (§ 667, subd. (a)(1)). The People also alleged that a
principal in the robbery was armed with a firearm (§ 12022, subd. (a)(1)).
A jury convicted defendant of all three offenses and found the conduct
enhancement to be true. The trial court found the prior conviction allegations to be true.
The trial court sentenced defendant to prison for 86 years to life. The trial court
imposed consecutive sentences of 25 years to life on each offense because they were each
a “third-strike” offense in light of defendant’s two prior “strike” convictions. (§§ 667,
subd. (e)(2); 1170.12, subd. (c)(2).) The trial court then imposed a consecutive sentence
of one year for the firearm enhancement and five years for each prior serious felony
conviction.
Defendant appealed. We affirmed defendant’s conviction, but remanded the case
to the trial court to exercise its discretion whether to impose consecutive or concurrent
sentences on the firearm and controlled substance possession counts. (People v. Turner
(October 16, 1998, B112835 [nonpub. opn.], at pp. 3-5.) The trial court reimposed
consecutive sentences.
II. The Current Petition
In 2012, the voters enacted the Act. Among other things, the Act permits criminal
defendants sentenced to a “third-strike” sentence under the Three Strikes law to seek
resentencing, if that “third-strike” sentence does not arise from an offense that is
“serious,” “violent” or otherwise ineligible for resentencing and if the defendant’s offense
conduct is not otherwise excepted from eligibility. (§ 1170.126, subds. (a) & (e)(1).)
In 2014, defendant sought resentencing on the firearm possession and controlled
substance possession counts. The trial court denied his petition, reasoning that
defendant’s ineligibility for resentencing on the second degree robbery count
automatically rendered him ineligible for resentencing on the other two counts.
Defendant timely appeals.
DISCUSSION
Defendant argues that the trial court erred in declaring defendant ineligible for
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resentencing on all three of his “third strike” sentences just because he was ineligible on
the second degree robbery count. Defendant is correct. In a decision handed down after
the trial court’s ruling, our Supreme Court held that “the Act requires an inmate’s
eligibility for resentencing to be evaluated on a count-by-count basis” (Johnson, supra,
(2015) 61Cal.4th at p. 688), such that ineligibility for resentencing on one count does not
affect eligibility for resentencing on other counts. However, “‘we review the [trial
court’s] ruling, not the court’s reasoning, and if the ruling was correct on any ground, we
affirm.’ [Citation.]” (People v. Chism (2014) 58 Cal. 4th 1266, 1295, fn. 12.) Here, the
trial court’s ruling was ultimately correct because defendant is independently ineligible
for resentencing as to each of the counts with a “third-strike” sentence. We assess
eligibility for resentencing under the Act de novo. (People v. Martinez (2014) 226
Cal. App. 4th 1169, 1181.)
Defendant is ineligible for resentencing under the Act on the robbery count
because the Act authorizes resentencing only for “third-strike” convictions “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).) Robbery is both a serious
felony (§ 1192.7, subd. (c)(19)) and a violent felony (§ 667.5, subd. (c)(9)), so the Act by
its terms does not reach this count.
Additionally, defendant is ineligible for resentencing under the Act on the felon in
possession of a firearm count. Although that offense is neither a serious nor violent
felony, the Act specifically precludes resentencing “for any of the offenses appearing” in
section 667, subdivisions (e)(2)(C)(i)-(iii). (§ 1170.126, subd. (e)(2).) Section 667,
subdivision (e)(2)(C)(iii) includes, among other things, “the commission of the current
offense” while “the defendant . . . was armed with a firearm.” (§ 667,
subd. (e)(2)(C)(iii).) A person is “armed” when he “has the specified weapon available
for use, either offensively or defensively.” (People v. Bland (1995) 10 Cal. 4th 991, 997;
§ 1203.06, subd. (b)(3); see also People v. Brimmer (2014) 230 Cal. App. 4th 782, 792
(Brimmer) [applying this definition of “armed” to the Act].) In assessing eligibility under
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the Act (including whether a defendant was “armed”), courts are to look to the whole
record (People v. White (2014) 223 Cal. App. 4th 512, 527 (White)), which encompasses
prior appellate opinions (People v. Guilford (2014) 228 Cal. App. 4th 651, 660). Although
a person possessing a firearm is not always armed with that firearm (People v. Elder
(2014) 227 Cal. App. 4th 1308, 1313-1314 (Elder)), there is no dispute in this case that
defendant was armed with the firearm because he was carrying a loaded gun on his
person and thus had it readily “available for use.” Defendant concedes as much in his
opening brief. In such instances, the defendant is ineligible for resentencing under the
Act. (See White, supra, 223 Cal.App.4th at p. 527 [so holding, as to felon in possession
of a firearm count where defendant was also armed]; People v. Osuna (2014) 225
Cal. App. 4th 1020, 1026-1027 [same]; Elder, at pp. 1313-1314 [same]; Brimmer, at
pp. 793-797 [same].)
For the same reasons, defendant is also ineligible for resentencing on the
controlled substance possession count. Defendant possessed the cocaine at the same time
he possessed the gun. Because he was, as explained above, armed while possessing the
gun, he was no less armed while simultaneously possessing the cocaine. Where a
defendant is armed while possessing a controlled substance, he is ineligible for
resentencing on that count. (See People v. Quinones (2014) 228 Cal. App. 4th 1040, 1042-
1045.)
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
HOFFSTADT
We concur:
____________________________, P.J. _______________________, J.
BOREN CHAVEZ
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