Filed 12/10/13 P. v. Ramirez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E056794

v.                                                                       (Super.Ct.No. SWF10001660)

JOHNNY LOUIS RAMIREZ,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge.

Affirmed with directions.

         Allen G. Weinberg, 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, and Steve Oetting and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.




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                                   I. INTRODUCTION

       Defendant and appellant Johnny Louis Ramirez had two strike priors when he was

sentenced in July 2012 for being convicted of (among other crimes) two counts of being a

felon in possession of a firearm. That crime is not a serious or violent felony within the

meaning of the “Three Strikes” law. Pursuant to that law, defendant’s sentence for each

of these counts was an indeterminate term of 25 years to life.

       While his appeal was pending, California voters passed Proposition 36, the Three

Strikes Reform Act of 2012 (the Reform Act). Under the Reform Act, the sentence for

committing a nonserious, nonviolent felony by one who has two strike priors is no longer

an indeterminate life term—unless the prosecution pleads and proves certain additional

facts. (Pen. Code, § 667, subd. (e)(2)(C).)1 When this provision applies, the lesser

sentence is mandatory. (§ 667, subd. (e)(2)(C).) In addition, eligible persons presently

serving an indeterminate life term under the Three Strikes law can petition to have their

sentence recalled and be resentenced to a lesser term so long as they do not pose an

unreasonable risk of danger to public safety. (§ 1170.126.)




       1  All further statutory references are to the Penal Code unless otherwise indicated.
        The Three Strikes law is codified in substantially identical language in two places:
in section 667, subdivisions (b) through (i) and in section 1170.12. The Reform Act
amended both statutes in substantially identical ways. For convenience, we will refer
solely to the provisions of section 667 in discussing the Three Strikes law and the Reform
Act, omitting reference to the substantially identical provisions of section 1170.12.
However, the analysis applies to both sections 667 and 1170.12.


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         Defendant contends he is entitled to be resentenced under the mandatory

sentencing provision of the Reform Act.2 For the reasons set forth below, we reject this

argument.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

         The parties stipulated at trial that defendant was a convicted felon for purposes of

the crime of being a felon in possession of a firearm when the following events took

place.

         On July 23, 2010, defendant was sitting outside a donut store when two men

pulled up in a car. The passenger in the car tried to lower the car window to speak to

defendant. Defendant pulled a sawed-off shotgun out from underneath a sweater and shot

at the car. The driver sped away as shotgun pellets hit the car. He stopped in a nearby

alley because the car had a flat tire. Defendant walked into the alley with the shotgun.

The passenger got out of the car and ran toward a friend’s house nearby. As the driver

drove away he saw defendant point the gun at the passenger and heard a gunshot.3




         2
         The California Supreme Court is currently considering the issue whether the
Reform Act applies retroactively to a defendant who was sentenced before the Reform
Act’s effective date but whose judgment is not yet final. (People v. Conley (2013) 215
Cal.App.4th 1482, review granted Aug. 14, 2013, S211275; People v. Lewis (2013) 216
Cal.App.4th 468 [Fourth Dist., Div. Two], review granted Aug. 14, 2013, S211494.)

         3These facts are based upon the testimony of the driver of the car. The passenger
of the car testified that he thought the car had a flat tire, but had no knowledge of any
shooting or that defendant was involved in any way. The convictions indicate the jury
believed the driver, not the passenger.


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       On August 5, 2010, the police detained defendant in the carport of a residence.

There was a coffee table two or three feet away from defendant. A sawed-off shotgun

and a revolver were on top of the coffee table.

       Based on the events of July 23, 2010, defendant was convicted of the following

crimes: attempted voluntary manslaughter (a lesser offense of the charged crime of

attempted murder) (count 1; §§ 664, 192, subd. (a)); three counts of assault with a firearm

(counts 3, 4, & 6; § 245, subd. (a)(2)); discharging a firearm at an occupied motor vehicle

(count 5; § 246); being a felon in possession of a firearm (count 7; former § 12021, subd.

(a)(1)),4 and carrying a loaded firearm (count 8; § 12031, subd. (a)(1)). Allegations that

defendant personally used a firearm in the commission of counts 1 and 3 through 6 were

found true. (§§ 667, 12022.5, subd. (a).)

       Defendant was also convicted of a second count of being a felon in possession of a

firearm based upon the events of August 5, 2010. (Count 9; § 12021, subd. (a)(1).)

       No firearm enhancement was alleged as to the charges of being a felon in

possession of a firearm (counts 7 & 9).

       In a bifurcated proceeding, the court found true allegations that defendant had

committed two prior serious felonies (assault with a deadly weapon and attempted arson),

which constituted strikes for purposes of the Three Strikes law.




       4 Former section 12021, subdivision (a) has been recodified as section 29800,
subdivision (a).


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       On July 20, 2012, the court sentenced defendant to a determinate term of 40 years

and an indeterminate term of 125 years to life. The indeterminate term was calculated

based upon terms of 25 years to life under the Three Strikes law for each of counts 1, 4,

6, 7, and 9.

       Defendant filed a notice of appeal on July 25, 2012.

       On November 6, 2012, while his appeal was pending, California voters passed the

Reform Act. (People v. Yearwood (2013) 213 Cal.App.4th 161, 169.) It became

effective the next day. (Ibid.)

       In this appeal, defendant asserts he is entitled to be resentenced as to counts 7 and

9—the two counts of being a felon in possession of a firearm. He is not requesting

resentencing as to other counts.

                                    III. DISCUSSION

A. Defendant is Not Entitled to Automatic Resentencing Under Section 667, Subdivision

(e)(2)(C)

       1. Legal Background Regarding the Reform Act

       Under the Three Strikes law as it existed when defendant was charged, tried, and

sentenced, a defendant with two or more strike priors who was convicted of any felony

would receive an indeterminate life sentence with a minimum term of 25 years. (Former

§ 667, subd. (e)(2)(A).) The Reform Act added subdivision (e)(2)(C) to section 667.

This subdivision provides that a defendant with two or more strike priors who is

convicted of an offense that is not a serious or violent felony will be sentenced as a one



                                             5
strike offender unless certain disqualifying facts are pleaded and proved.5 (§ 667, subd.

(e)(2)(C).) Among the facts that will disqualify an otherwise eligible defendant from the

lesser sentence is the fact that “[d]uring the commission of the current offense, the



       5  Section 667, subdivision (e)(2)(C) provides that second strike sentencing does
not apply if the prosecution pleads and proves any of the following:
       “(i) The current offense is a controlled substance charge, in which an allegation
under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found
true.
       “(ii) The current offense is a felony sex offense, defined in subdivision (d) of
Section 261.5 or Section 262, or any felony offense that results in mandatory registration
as a sex offender pursuant to subdivision (c) of Section 290 except for violations of
Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section
286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11,
and Section 314.
       “(iii) During 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.
       “(iv) The defendant suffered a prior serious and/or violent felony conviction, as
defined in subdivision (d) of this section, for any of the following felonies:
       “(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of
the Welfare and Institutions Code.
       “(II) Oral copulation with a child who is under 14 years of age, and who is more
than 10 years younger than he or she as defined by Section 288a, sodomy with another
person who is under 14 years of age and more than 10 years younger than he or she as
defined by Section 286, or sexual penetration with another person who is under 14 years
of age, and who is more than 10 years younger than he or she, as defined by Section 289.
       “(III) A lewd or lascivious act involving a child under 14 years of age, in
violation of Section 288.
       “(IV) Any homicide offense, including any attempted homicide offense, defined
in Sections 187 to 191.5, inclusive.
       “(V) Solicitation to commit murder as defined in Section 653f.
       “(VI) Assault with a machine gun on a peace officer or firefighter, as defined in
paragraph (3) of subdivision (d) of Section 245.
       “(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of
subdivision (a) of Section 11418.
       “(VIII) Any serious and/or violent felony offense punishable in California by life
imprisonment or death.”


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defendant used a firearm, was armed with a firearm or deadly weapon, or intended to

cause great bodily injury to another person.” (Id., subd. (e)(2)(C)(iii).)

       The Reform Act also added section 1170.126. This section provides an eligible

person who is presently serving an indeterminate life sentence imposed pursuant to the

Three Strikes law with the right to petition to have his or her sentence recalled and to be

sentenced as a one strike offender. An inmate is eligible for resentencing if the current

sentence is for an offense that is not a serious or violent felony and the inmate is not

otherwise disqualified. (§ 1170.126, subds. (a)-(e).)6 Even if those criteria are met, the

trial court may deny the petition if the court determines, in its discretion, that

resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126,

subd. (f).) In determining whether the inmate poses such a risk, the court may consider

the inmate’s criminal conviction history, disciplinary record and rehabilitation records

while incarcerated, and “[a]ny other evidence the court, within its discretion, determines

to be relevant . . . .” (Id., subd. (g).)

       An essential difference between the two statutes is that under section 667,

subdivision (e)(2)(C), the lesser sentence is mandatory regardless of whether the person

poses a danger to the public, while an inmate who petitions the court for recall of his

sentence under section 1170.126 receives the reduced sentence only if the court


       6 An inmate is disqualified from resentencing if the inmate’s current sentence was
“imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of [section
667, subdivision (e)(2)(C)].” (§ 1170.126, subd. (e)(2).) The referenced clauses are set
forth ante in footnote 5.


                                               7
determines he would not pose an unreasonable risk of danger to public safety. Another

difference is that section 667, subdivision (e)(2)(C) explicitly requires that the

prosecution “pleads and proves” a disqualifying fact, while section 1170.126 does not.

       Accordingly, if section 667, subdivision (e)(2)(C) applies to defendant and he

meets the objective criteria for sentencing under that subdivision, defendant is entitled to

be resentenced as a one strike offender for counts 7 and 9; if, however, section 667,

subdivision (e)(2)(C) does not apply to defendant, his recourse is to petition the trial court

under section 1170.126 to recall his sentence and request resentencing.

       2. Discussion

       Defendant asserts he is entitled to the benefit of the mandatory sentencing

provision as to his convictions for being a felon in possession of a firearm because his

sentence is not yet final, the crime of being a felon in possession of a firearm is not a

serious or violent felony, and the prosecution did not plead or prove any of the

disqualifying facts set forth in the Reform Act. He concedes that the “use” of, or being

“armed with,” a firearm during the commission of a crime is a disqualifying fact.

However, he asserts that the prosecution “must charge arming in the accusatory pleading

and obtain a specific jury finding (or an admission) on that allegation,” which it failed to

do. Although a jury found that he had personally used a firearm during the commission

of five crimes that occurred on July 23, 2010 (i.e., at a time when he held the status of

convicted felon), the prosecution did not specifically allege (and the jury did not find)

that he used or was armed with a firearm with respect to the counts of being a felon in



                                              8
possession of a firearm. Therefore, he contends, he is not disqualified from receiving the

lesser sentence provided under the Reform Act.

       The Attorney General asserts that defendant’s argument highlights a problem in

applying the mandatory sentencing provision in this case. The Attorney General explains

that the only reason the prosecution did not plead or prove the additional, disqualifying

facts as to counts 7 and 9 was because the Reform Act, which created the requirement of

pleading and proving such facts, was not enacted until after defendant was tried and

sentenced.7 Defendant thus “seeks to gain retroactive application of the beneficial

changes in the law, and yet effectively bar the prosecution . . . from showing why [he]

does not fall within the amended provisions of the law.” Defendant, the Attorney

General concludes, “cannot have it both ways.” We agree.

       Under section 667, subdivision (e)(2)(C), the lesser, one strike sentence is required

when the current offense is not a serious or violent felony “unless the prosecution pleads

and proves” certain additional facts regarding the current offense or the nature of his

strike priors. (Italics added.) Thus, if the prosecution pleads and proves any of the facts

       7 Arguably, the prosecution could have charged a firearm enhancement under
section 12022, subdivision (a) (armed with a firearm in the commission of a felony), or
section 12022.5, subdivision (a) (personal use of a firearm in the commission of a
felony). There is, however, authority that suggests that such enhancement allegations
would have been improper. (See, e.g., In re Pritchett (1994) 26 Cal.App.4th 1754, 1757
[firearm use enhancement to crime of possession of short-barreled shotgun stricken
because although shotgun was used during the defendant’s possession of the gun, it was
not used “‘in the commission’” of his crime of possession]; People v. Arzate (2003) 114
Cal.App.4th 390, 400-401 [gun use enhancement stricken because such use was “not
committed in the commission of the static offense of carrying a concealed weapon in a
vehicle.”].)


                                             9
specified in section 667, subdivision (e)(2)(C)(i) through (iv), a defendant who would

otherwise be entitled to be sentenced as a one strike offender is disqualified from

receiving the lesser sentence and must be sentenced to the indeterminate life term that

would have been imposed under the former law. The obvious purpose of this aspect of

the Reform Act is to preclude the defendant from receiving the lesser sentence when any

of the disqualifying facts occurred.

       Applying section 667, subdivision (e)(2)(C) prospectively is a straightforward

matter. In the accusatory pleading, when the prosecution charges a defendant who has

two strike priors with a nonserious, nonviolent offense, it may include in the charge an

allegation that, if found true, would disqualify the defendant from receiving the lesser

sentence provided under the Reform Act. The prosecution could allege, for example, that

during the commission of the crime the defendant used or was armed with a firearm

within the meaning of section 667, subdivision (e)(2)(C)(iii). If the jury finds the

defendant guilty of the crime and further finds the disqualifying allegation true, the

defendant would be sentenced to the indeterminate life term; if the jury finds him guilty

of the crime but does not find the disqualifying allegation true, the defendant is sentenced

as a one strike offender. (See § 667, subd. (e)(2)(A), (C).)

       Attempting to apply the literal terms of the mandatory sentencing provision to one

who has already been sentenced, however, can be problematic. Although the statute

contemplates that the People can preclude the lesser sentence by pleading and proving a

disqualifying fact, the prosecution cannot plead or prove anything after the defendant has



                                             10
been sentenced. Thus, even where a defendant committed a crime under circumstances

that would have disqualified him from receiving the reduced sentence—e.g., he was

armed with a gun during the commission of the crime—the People would be unable to

preclude the lesser sentence solely because it is too late to plead and prove the

disqualifying fact. Nevertheless, if the “pleads and proves” language is given effect in

this situation, the defendant would be entitled to the lesser term provided by the Reform

Act despite the fact he was armed with a gun during the crime. This construction of the

Reform Act is plainly inconsistent with the clear intent of the statute to prevent such

persons from receiving the lesser term and should, therefore, be rejected. (See People v.

Leiva (2013) 56 Cal.4th 498, 506 [courts will reject a literal construction of a statute that

is contrary to the legislative intent or would lead to absurd unintended consequences].)

       This problem might not arise when the Attorney General concedes there was no

basis for alleging a disqualifying fact or the record discloses nothing to suggest the

prosecution could have pleaded or proved a disqualifying fact. That, however, is not our

situation. Indeed, it appears from the facts disclosed by the record and the jury’s findings

on other counts that the prosecution could have properly made and probably proved the

disqualifying fact that defendant was armed with a firearm during the commission of the

crimes charged in counts 7 and 9.8 Indeed, the only plausible explanation for the

       8 An allegation that defendant is disqualified from the lesser sentence for count 7
could have been easily supported in light of the jury’s verdicts and findings as to other
counts arising from the events of July 23, 2010. As to count 9, although there is no
evidence that defendant used the firearm he possessed on August 5, 2010, he was
arguably armed with the shotgun found close to him when he was detained. (See, e.g.,
                                                                  [footnote continued on next page]


                                             11
People’s failure to make such allegations is that the legal basis for doing so—section 667,

subdivision (e)(2)(C)(iii)—did not exist at the time defendant was charged and tried.

        We emphasize that we do not decide whether the mandatory sentencing provisions

of the Reform Act apply more generally to persons sentenced prior to its passage. Our

holding is limited to the circumstances in this case. Here, the record indicates the

prosecution could have pleaded and proved a disqualifying fact if the Reform Act had

been in effect at the pertinent time. To allow defendant to benefit from the mandatory

sentencing provision under these circumstances would be contrary to the intent of the

Reform Act. Therefore, defendant is not entitled to be resentenced under section 667

subdivision (e)(2)(C); his recourse is to pursue the alternative remedy under section

1170.126.9

B. Clerical Errors in Abstract of Judgment

        Defendant points out two errors in the abstract of judgment, which the Attorney

General agrees should be corrected. First, the abstract of judgment describes the crime of

which defendant was convicted in count 5 as “SHOOT INHABITED

HOUSE/BUILDING.” Although the statute defining the crime defendant was convicted

of in count 5 prohibits shooting at an inhabited house or occupied building as well as an


[footnote continued from previous page]
People v. Bland (1995) 10 Cal.4th 991, 997 [a defendant is armed if he or she has ready
access to a firearm]; Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1001 [one
can be armed even though the firearm is not carried on the person’s body].)

        9We express no view as to whether defendant would be eligible for resentencing
under section 1170.126.


                                             12
occupied motor vehicle (§ 246), it is clear from the evidence and arguments at trial and

the jury’s verdict that his conviction was based on shooting at an occupied motor vehicle.

Second, the abstract of judgment incorrectly states the date of his conviction with respect

to count 9.

       An appellate court has the inherent power to correct any clerical errors in the

abstract of judgment to reflect the true nature of the judgment or proceedings. (People v.

Mitchell (2001) 26 Cal.4th 181, 185; People v. Samaniego (2009) 172 Cal.App.4th 1148,

1183.) Accordingly, we will direct the trial court to correct the errors.

                                    IV. DISPOSITION

       The judgment is affirmed. The trial court is directed to prepare an amended

abstract of judgment that (1) describes the crime of which defendant was convicted in

count 5 as “SHOOTING AT AN OCCUPIED MOTOR VEHICLE,” and (2) states that

the date of conviction as to count 9 is August 9, 2011. The trial court is further directed

to forward copies of the amended abstract of judgment to the Department of Corrections

and Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                KING
                                                                                              J.
We concur:

McKINSTER
                Acting P. J.

RICHLI
                           J.


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