Filed 11/20/14 P. v. Mouton CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067426
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF94518171)
                   v.

JUNIUS DURAN MOUTON,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Michael Satris, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan
P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Franson, J., and Peña, J.
                                     PROCEEDINGS
       Appellant, Junius Duran Mouton, was found guilty at the conclusion of a jury trial
on December 20, 1994, of being a felon in possession of a firearm (Pen. Code, § 12021,
subd. (a) [subsequently reenacted as Pen. Code, § 29800, subd. (a), count one)1 and
possession of cocaine (Health & Saf. Code, § 11350, count two). Because appellant had
two prior serious felony convictions within the meaning of the three strikes law, the trial
court sentenced him to two concurrent sentences of 25 years to life.
       On November 6, 2012, the electorate passed Proposition 36, amending the three
strikes law to permit the recall of some sentences imposed under the three strikes law
pursuant to newly codified section 1170.126. On November 9, 2012, appellant filed a
petition to recall his sentence pursuant section 1170.126. On November 27, 2012, the
trial court made a preliminary finding that appellant may be eligible for resentencing and
appointed counsel for appellant.
       On February 22, 2013, the prosecutor filed a brief arguing that appellant was
statutorily ineligible for resentencing. The trial court ordered further briefing on whether
a prisoner serving a three-strike term for being a felon in possession of a firearm is
eligible for resentencing under section 1170.126. On March 1, 2013, appellant filed his
response.
       At the conclusion of a hearing on May 10, 2013, the trial court found appellant
categorically ineligible for resentencing and denied his petition to recall the sentence.
The court denied appellant’s motion for reconsideration on June 7, 2013. Appellant
contends the trial court erred in denying his petition to recall the sentence. We affirm the
trial court’s ruling.



1      All statutory references are to the Penal Code.


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                                          FACTS
       The probation officer’s report was based on the preliminary hearing transcript with
additional information coming from the police report. We derive the facts from the
probation report. At 3:20 p.m. on April 10, 1994, Fresno Police Officer Twedt and
assisting officers were dispatched to investigate a report that there was a man with a gun
inside the residence at 651 South Third Street. The officers arrived at the residence and
were approached by two females. The reporting party, Tina Williams, told the officers
that appellant was inside the house. The officers entered the residence and made contact
with appellant just inside the door. Officers searched appellant and found a loaded .357-
caliber handgun inside appellant’s right front pocket. Appellant was arrested and taken
into custody.
       After his arrest, appellant spontaneously said, “I ain’t going to lie to you; the gun
is stolen. I got it off a guy on the street for $100.00.” Appellant said he was on active
parole from the Bay Area. Officers searched appellant and found a small vial and a small
bag each containing a white powdery substance. It was later determined that the vial
contained .2 grams of cocaine and the small bag contained .9 grams of cocaine.
                        ELIGIBILITY FOR RESENTENCING
       Appellant contends that the trial court erred in denying his petition for
resentencing. Appellant argues that he is seeking appellate review of an appealable
order, the statute specifically ameliorates one convicted of being a felon in possession of
a firearm, his conviction of firearm use requires that this offense be “tethered” to another
felony, he did not use a firearm, there was no evidentiary proof appellant used a gun, and
the rules of statutory construction show appellant was entitled to resentencing under
section 1170.126.2
2      In his reply brief, appellant argues there was no proof beyond a reasonable doubt
that he used a firearm and the probation officer’s report was incompetent evidence.


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       We agree with respondent’s initial contention that appellant’s current claim is
cognizable on appeal. We further agree with respondent that appellant was using a
firearm when he was arrested for a violation of section 12021, subdivision (a), and the
terms of sections 1170.126, 667, and 1170.12 (hereafter the Act) preclude appellant from
the resentencing relief he seeks.
       In April 2014, this court published two cases germane to the issues raised by
appellant: People v. Osuna (2014) 225 Cal.App.4th 1020 (Osuna), and People v. Blakely
(2014) 225 Cal.App.4th 1042 (Blakely).3 The California Supreme Court denied review in
these cases on July 9, 2014.
       In Blakely, we held that a defendant convicted of being a felon in possession of a
firearm is not automatically disqualified from resentencing because of that conviction.
Such a defendant is disqualified for resentencing only if he or she had the firearm
available for offensive or defensive use. We further held in Blakely that the disqualifying
factors need not be pled and proved to a trier of fact beyond a reasonable doubt.4
(Blakely, supra, 225 Cal.App.4th at pp. 1048, 1056-1063.)
       In Osuna, we held that (1) the disqualifying factors need not be pled and proven to
a jury beyond a reasonable doubt; (2) where there are facts in the record of conviction
showing the inmate was armed with a firearm ─ meaning it was available for immediate


3       Our court also decided two other cases with related but not identical issues:
People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011 (Cervantes)
[holding inmate may be barred from resentencing even if he or she was not carrying a
firearm on his or her person] and People v. Martinez (2014) 225 Cal.App.4th 979, 984-
985 (Martinez) [same holding as Cervantes and also permitting People writ review where
trial court finds inmate was entitled to resentencing under the Act]. The California
Supreme Court denied review in these cases on July 9, 2014.
4      In addition to applying standard principles of statutory construction in our analysis
of section 1170.126 in Blakely, we also considered the rule of lenity which appellant
argues is operative here. (Blakely, supra, 225 Cal.App.4th at pp. 1053-1054.)


                                             4
offensive or defensive use ─ during the commission of the inmate’s current offense, the
inmate is disqualified from resentencing under the Act even though he or she was
convicted of possessing the firearm and not of being armed with it; and (3) being armed
with a firearm during the commission of the current offense for the purposes of the Act
does not require that the possession be “tethered” to or have some “facilitative nexus” to
an underlying felony. (Osuna, supra, 225 Cal.App.4th at pp. 1026-1040.)
       Although appellant was not per se prohibited under the Act from making a motion
for resentencing, the fact that he was personally armed with a firearm at the time of his
arrest meant appellant had the firearm available for offensive or defensive use. This fact
disqualified appellant from consideration for resentencing pursuant to the Act. The
prosecutor did not have to plead and prove the underlying facts of appellant’s conviction
beyond a reasonable doubt. (Blakely, supra, 225 Cal.App.4th at pp. 1061-1063; Osuna,
supra, 225 Cal.App.4th at pp. 1026-1040.) Furthermore, the probation officer’s report
was a sufficient basis for the trial court to deny the motion. (Blakely, supra, 225
Cal.App.4th at pp. 1061-1063; Osuna, supra, 225 Cal.App.4th at p. 1040.) Appellant’s
statutory construction arguments were considered and rejected in Blakely and Osuna.
(Blakely, supra, 225 Cal.App.4th at pp. 1056-1063; Osuna, supra, 225 Cal.App.4th at
pp. 1026-1040.)
       The trial court concluded that appellant was ineligible for resentencing under the
Act because of the circumstances surrounding the commission of his offense. The trial
court’s ruling is supported by the record. Following our rulings in Blakely and Osuna,
we find no error in the trial court’s ruling.
                                       DISPOSITION
       The trial court’s postjudgment order denying appellant’s petition for resentencing
pursuant to section 1170.126 is affirmed.



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