Filed 4/14/15 P. v. Villa CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039675
                                                                    (Monterey County
          Plaintiff and Respondent,                                  Super. Ct. No. SS060440)

          v.

MANUEL VILLA,

          Defendant and Appellant.



          Defendant Manuel Villa, a “Three Strikes” prisoner who is serving an
indeterminate life sentence, appeals from an order denying his petition for recall of his
sentence pursuant to Penal Code section 1170.126.1 Defendant contends: (1) reversal is
required because he was deprived of his right to counsel as to the initial screening of his
petition by the trial court to determine his eligibility for resentencing; and (2) the trial
court erred in concluding that he was ineligible for resentencing.2 We find no error and
affirm.

1
      Our Supreme Court recently held that an order denying a petition for recall of a
sentence because the defendant failed to meet the threshold eligibility requirement of
Penal Code section 1170.126, subdivision (b) is appealable. (Teal v. Superior Court
(2014) 60 Cal.4th 595, 597.)
2
      Defendant has also filed a petition for writ of habeas corpus, which we will
dispose of by separate order.
                           I. Three Strikes Reform Act of 2012
       The Three Strikes Reform Act of 2012 (Act) amended Penal Code sections 667
and 1170.123 and added section 1170.126. (People v. Superior Court (Martinez) (2014)
225 Cal.App.4th 979, 984.) Under the previous version of the Three Strikes law, a
defendant who had been convicted of two or more serious or violent felonies was subject
to an indeterminate life sentence of 25 years to life after his or her conviction of any new
felony. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood).) The Act
changed the Three Strikes law by reserving indeterminate life sentences for cases in
which the new offense is also a serious or violent felony, unless the prosecutor pleads and
proves an enumerated disqualifying factor. (Yearwood, at p. 167.) In all other cases, a
recidivist defendant will be sentenced as a second strike offender instead of a third strike
offender. (Yearwood, at pp. 167-168.) “The Act also created a postconviction release
proceeding whereby 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. (§ 1170.126.)” (Yearwood, at p. 168.)4
3
        All further statutory references are to the Penal Code.
4
        Defendant relies on People v. Guinn (1994) 28 Cal.App.4th 1130 (Guinn), People
v. Ybarra (2008) 166 Cal.App.4th 1069 (Ybarra), and People v. Murray (2012) 203
Cal.App.4th 277 (Murray) to support his argument that the use of “shall”/“unless”
language of section 1170.126 creates a presumption in favor of resentencing. Concluding
that the language of section 190.5 was unambiguous, Guinn held that the statute
established a presumption of life without parole as the sentence for a 16- or 17-year-old
who has been convicted of a special circumstance murder. (Guinn, at pp. 1141-1142;
accord Ybarra, at p. 1089; Murray, at p. 282.) Section 190.5 provides that the penalty
“shall be confinement in the state prison for life without possibility of parole or, at the
discretion of the court, 25 years to life.” The California Supreme Court concluded that
section 190.5 was ambiguous and adopted the construction that rendered it constitutional.
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1371-1373 (Gutierrez).) Thus, Gutierrez
disapproved Guinn, Ybarra, and Murray. (Gutierrez, at pp. 1370, 1387.)
                                                                                  (Continued)
                                              2
                                  II. Statement of the Case
       In 2009, defendant was charged with, and a jury convicted him of, possession of a
deadly weapon by a prisoner. (§ 4502, subd. (a).)5 Defendant also admitted that he had
three prior strike convictions. (§ 1170.12, subd. (c)(2).) The trial court denied
defendant’s motion to strike the prior strike convictions and sentenced him to 25 years to
life in prison. This court affirmed the judgment of conviction.
       On April 22, 2013, defendant filed a pro per petition for recall of his indeterminate
life sentence pursuant to section 1170.126. Defendant argued that he was eligible for
resentencing because neither his current offense nor his prior strike convictions
disqualified him.
       On May 6, 2013, the trial court denied the petition and stated: “After initial
review of the petition and the case file, the court has determined that petitioner is not
eligible for the relief requested under section 1170.126, subdivision (e)(2) because the
record shows that he was armed with a deadly weapon during the commission of the
newly convicted offense within the meaning of section 1170.126, subdivision
(c)(2)(C)(iii) and section 667, subdivision (e)(2)(C)(iii).” The trial court based its
conclusion on facts taken from the preliminary hearing transcript.
       Defendant filed a timely notice of appeal which was subsequently amended.


        Defendant argues that the language of section 1170.126, subdivision (f) is similar
to section 190.5 and creates a presumption of resentencing. Section 1170.126,
subdivision (f) provides in relevant part: “If the petitioner satisfies the [eligibility]
criteria in subdivision (e), the petitioner shall be resentenced [as a second striker] unless
the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f), italics added.)
Here, as discussed, infra, defendant failed to satisfy the eligibility criteria in section
1170.126, subdivision (e), and thus we need not consider any issue regarding a statutory
presumption.
5
        At defendant’s request, this court has taken judicial notice of the record in People
v. Villa (April 12, 2010, H034355) [nonpub. opn.] (Villa I).

                                              3
                                  III.    Statement of Facts
       The following summary is taken from our unpublished opinion in Villa I. “At
approximately 9:28 a.m. on May 25, 2006, Sergeant Paul Sullivan and other staff began
releasing inmates from two buildings into the exercise yard at Salinas Valley State
Prison. Sergeant Sullivan saw defendant and another inmate, Velez, attack two other
inmates, Rodriguez and Gallegos. Defendant and Velez were Northerner gang members,
and Rodriguez and Gallegos were Fresno Bulldog gang members. The four men fought
with clenched fists. [¶] Sergeant Sullivan ordered the men to get down into a prone
position, but they failed to comply. He then saw something drop from defendant’s hand.
Since Sergeant Sullivan was spraying the inmates with pepper spray, he was unable to
immediately retrieve the object. As Velez and Gallegos were moving to a prone position,
Sergeant Sullivan saw Velez throw an object. [¶] After the four inmates were
handcuffed, Sergeant Sullivan retrieved the objects. The object dropped by defendant
was a six-inch knife made of melted plastic with a sharpened point. In Sergeant
Sullivan's opinion, the knife that defendant dropped could be used as a stabbing
instrument capable of inflicting great bodily injury or death. There were no useable
fingerprints on defendant’s knife.”


                                         IV. Discussion
       Defendant contends that reversal is required, because he was deprived of his right
to counsel when the trial court conducted the initial screening of his petition to determine
his eligibility for resentencing under section 1170.126. He contends that since he had
established “a prima facie case for resentencing under the provisions of section 1170.126
and the Reform Act, he was entitled to appointment of counsel as a matter of right.”
       “The Sixth Amendment right to the assistance of counsel applies at all critical
stages of a criminal proceeding in which the substantial rights of a defendant are at stake.
[Citation.]” (People v. Crayton (2002) 28 Cal.4th 346, 362.) Thus, a defendant is
                                             4
entitled to the assistance of counsel at a sentencing hearing. (See Gardner v. Florida
(1977) 430 U.S. 349, 358.) But the initial screening of the petition to determine
eligibility for resentencing is not a sentencing hearing.
       Relying on People v. Shipman (1965) 62 Cal.2d 226 (Shipman) and In re Clark
(1993) 5 Cal.4th 750 (Clark), defendant argues that there is a right to counsel in
postconviction challenges where a prima facie case for relief is made. Shipman held that
a petitioner who has made a prima facie case for coram nobis relief is entitled to the
appointment of counsel. (Shipman, at pp. 232-233.) Clark held that a petitioner who has
made a prima facie case leading to issuance of an order to show cause as to the validity of
a judgment is also entitled to the appointment of counsel. (Clark, at p. 780.) However,
here, defendant failed to make a prima facie case that he satisfied the eligibility
requirements for resentencing under the Act.
       A prisoner’s petition to recall his or her sentence must state “all of the currently
charged felonies, which resulted in the [third strike life sentence]” and “all of the prior
[strike] convictions.” (§ 1170.126, subd. (d).) The trial court must then determine
whether the prisoner has satisfied the requirements set forth in subdivision (e) of section
1170.126. (§ 1170.126, subd. (f).) A prisoner is eligible for resentencing if: (1) he or
she is currently serving a third strike life term for conviction of a felony or felonies that
are not defined as serious and/or violent felonies by section 667.5, subdivision (c) or
section 1192.7, subdivision (c); (2) the “current sentence was not imposed for any of the
offenses” listed in section 667, subdivision (e)(2)(C)(i)-(iii) or section 1170.12,
subdivision (c)(2)(C)(i)-(iii); and (3) none of the prisoner’s prior convictions are listed in
section 667, subdivision (e)(2)(C)(iv) or section 1170.12, subdivision (c)(2)(C)(iv).
(§ 1170.126, subd. (e).) If the prisoner has met these requirements, the trial court shall
resentence him or her, “unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).)
                                               5
       Here, defendant’s petition for recall of his sentence states that his conviction for
possession of a deadly weapon by a prisoner resulted in the third strike life sentence and
that he had multiple prior strike convictions. Possession of a deadly weapon by a
prisoner is not defined as a serious and/or violent felony, and thus defendant satisfied the
first eligibility requirement. As to the second requirement, defendant also alleged that
“his current sentence was not imposed for any of the offenses appearing in section 667
(e)(2)(C) (i)-(iii) and section 1170.12(c)(2)(C)(i)-(iii).” However, his petition and the
record of conviction established otherwise. As the trial court found, defendant was
ineligible for resentencing, because “[d]uring the commission of the current offense,
[he] . . . was armed with a . . . deadly weapon . . . .” (§§ 667, subd. (e)(2)(C)(iii),
1170.12, subd. (c)(2)(C)(iii).)6
       “[A]rmed with a . . . deadly weapon” is not defined in either section 667 or section
1170.12. In interpreting a voter initiative such as the Act, we apply the same rules of
construction employed for interpreting statutes. (People v. Rizo (2000) 22 Cal.4th 681,
685 (Rizo).) We first consider “ ‘the language of the statute, giving the words their
ordinary meaning.’ [Citation.]” (Ibid.) A person is armed when the weapon is
“ ‘available for use, either offensively or defensively.’ ” (People v. Pitto (2008) 43 Cal.4th
228, 236; see also CALCRIM No. 3130.) In the recitation of facts in defendant’s
petition, he states that he and “another inmate [were] involved in a physical altercation
involving two to four other inmates who all fought with clenched fists” at the prison
when Sergeant Sullivan “allegedly” saw him drop a weapon. Defendant also points out
that his fingerprints were not found on the weapon and he “was the only inmate to have
suffered a knife wound – a small puncture wound to his left buttock – which was caused
by a sharp object.” Thus, defendant concedes in his petition that he was involved in a

6
        Neither party raises any issue regarding the third eligibility requirement set forth
in section 1170.126, subdivision (e)(3).

                                               6
fight with other inmates and disputes only that he possessed a deadly weapon during the
fight. However, defendant was convicted of possession of a deadly weapon, and the
record of conviction establishes that he had this weapon available for offensive or
defensive use during the fight. Based on this record, the trial court correctly found that
defendant was armed with a deadly weapon when he committed the current offense.
       Defendant now contends that he “was engaged in a fight prior to the weapon being
discarded, and did not use the weapon, and, in fact, injured only himself with the
weapon.” However, evidence that defendant did not “use” the deadly weapon is not
required to support a finding that he was “armed” with such a weapon.
       Defendant next challenges the trial court’s finding that he was ineligible for
resentencing on the ground that the prosecutor failed to plead and prove that he was
armed with a deadly weapon in the current offense.
       This court recently held in People v. Chubbuck (2014) 231 Cal.App.4th 737
(Chubbuck), that a prosecutor is not required to plead and prove any of the
disqualification factors set forth in section 1170.126. (Chubbuck, at p. 740.) Chubbuck
agreed with the analysis in People v. White (2014) 223 Cal.App.4th 512 (White), People
v. Osuna (2014) 225 Cal.App.4th 1020 (Osuna), People v. Blakely (2014) 225
Cal.App.4th 1042 (Blakely), People v. Elder (2014) 227 Cal.App.4th 1308, and People v.
Brimmer (2014) 230 Cal.App.4th 782. (Chubbuck, at p. 745.) As in the present case, the
defendant in Chubbuck argued that the statement of voter intent in section 1170.126,
subdivision (a) made the procedural requirements of sections 667 and 1170.126
applicable to prisoners whose current offenses were committed after the Act became law.
(Chubbuck, at p. 746.) Chubbuck pointed out that the Act “explicitly distinguishes
between the procedures applicable to resentencing and the procedures applicable
prospectively, to defendants who are being sentenced for a new offense,” and rejected
this argument. (Chubbuck, at p. 746.)


                                             7
       Defendant argues that his third strike sentence was not imposed for one of “ ‘the
offenses appearing in . . . clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph
(2) of subdivision (c) of Section 1170.12.’ (§ 1170.126, subd. (e)(2).” Noting that clause
(iii) describes “only a fact relating to an unspecified offense,” that is, that “[d]uring the
commission of the current offense, the defendant . . . was armed with a . . . deadly
weapon,” defendant claims that the provision can be construed as describing an
“offense,” only if it is read in conjunction with the pleading and proof language of section
1170.12, subdivision (c)(2)(C). Chubbuck found no merit to this argument: “While
section 1170.126, subdivision (e)(2) ‘expressly cross-references “clauses (i) to (iii),
inclusive” of [sections] 667(e)(2)(C) and 1170.12(c)(2)(C), nothing in the language of
section 1170.126(e)(2) or of any of the other subdivisions of section 1170.126 governing
an inmate’s petition for resentencing relief under the Reform Act references the plead-
and-prove language.’ ” (Chubbuck, supra, 231 Cal.App.4th at p. 747, quoting White,
supra, 223 Cal.App.4th at pp. 526-527.)
       Defendant also argues that “courts are obligated to construe any ambiguity in a
penal statute in a manner which avoids constitutional problems” and thus “judicial
factfinding in the present case about the nature of the ‘current’ conviction is
constitutionally dubious.” Chubbuck rejected this argument: “[W]e find no ambiguity as
to whether section 1170.126, subdivision (e)(2) incorporates the pleading and proof
requirements of section 1170.12, subdivision (c)(2)(C). As explained above, the Reform
Act explicitly distinguishes between the procedures applicable to resentencing and the
procedures applicable to defendants who are being sentenced for a new offense, and
section 1170.126, subdivision (e)(2) only ‘expressly cross-references “clauses (i) to (iii),
inclusive” of [sections] 667(e)(2)(C) and 1170.12(c)(2)(C),’ not any other provisions of
those statutes. [Citation.]” (Chubbuck, supra, 231 Cal.App.4th at p. 747.)
       Defendant next argues that the Act should be broadly and liberally construed to
promote its legislative goals to ensure that “the draconian penalty of 25 to life is reserved
                                               8
only for defendants whose ‘current conviction is for a violent or serious crime’ ” and to
save taxpayers’ money by cutting costs. Thus, he claims that “an interpretation of
section 1170.126 which includes the ‘pleading and proof’ requirement for the
resentencing exclusions clearly promotes the remedial goals of the initiative.” Chubbuck
also rejected this argument: “However, the goals of the Reform Act included ensuring
that ‘ “dangerous criminals serve their full sentences” ’ (Osuna, supra, 225 Cal.App.4th at
p. 1037), and the Reform Act explicitly included, as a factor disqualifying an inmate from
resentencing, [those defendants who were armed with a deadly weapon]. . . . We are not
persuaded that in order to effectuate the remedial purposes of the Reform Act, facts that
disqualify an offense from resentencing eligibility must have been pleaded and proved in
a prior proceeding, rather than determined by a judge at a resentencing eligibility
proceeding. [¶] Although reducing sentences would save taxpayer money, we do not
agree with defendant that this is a sufficient reason to impose a pleading and proof
requirement on resentencing disqualification criteria. ‘It is clear the electorate’s intent
was not to throw open the prison doors to all third strike offenders whose current
convictions were not for serious or violent felonies, but only to those who were perceived
as nondangerous or posing little or no risk to the public.’ ” (Chubbuck, supra, 231
Cal.App.4th at p. 748, quoting Osuna, supra, 225 Cal.App.4th at p. 1038.)
       Defendant urges this court to apply “the rule of lenity” to support his interpretation
of section 1170.126, subdivision (e)(2). Chubbuck also considered this argument: “[T]he
rule of lenity ‘applies “ ‘only if the court can do no more than guess what the legislative
body intended; there must be an egregious ambiguity and uncertainty to justify invoking
the rule.’ ” [Citation.]’ [Citation.] As stated above, we find no ambiguity as to whether
section 1170.126, subdivision (e)(2) incorporates the pleading and proof requirements of
section 1170.12, subdivision (c)(2)(C).” (Chubbuck, supra, 231 Cal.App.4th at p. 748.)
       In sum, we agree with the analysis in Chubbuck and reject defendant’s arguments.


                                              9
       Citing to Apprendi v. New Jersey (2000) 530 U.S. 466, defendant also contends
that “[i]t is a fundamental principle of constitutional law that a sentence cannot be
imposed for a particular aggravated crime or enhancement unless the facts giving rise to
the aggravation or enhancement are pled and proven to a jury beyond a reasonable doubt,
or admitted by the defendant.” This argument was rejected in Blakely, supra, 225
Cal.App.4th 1042. Blakely reasoned: “A finding an inmate is not eligible for
resentencing under section 1170.126 does not increase or aggravate that individual’s
sentence; rather, it leaves him or her subject to the sentence originally imposed. In the
case of a third strike offender such as defendant, that sentence is the indeterminate term
of 25 years to life in prison that the trial court permissibly imposed at the time defendant
was convicted of his current offense, ‘solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. [Citations.]’ [Citation.] The trial court’s
determination in the section 1170.126 proceeding that defendant was armed with a
firearm during the commission of his current offense did not increase the penalty to
which defendant was already subject, but instead disqualified defendant from an act of
lenity on the part of the electorate to which defendant was not constitutionally entitled.”
(Id. at pp. 1061-1062.) We find the analysis of Blakely persuasive and reject defendant’s
contention.
       Noting that the Act requires that a life sentence will be imposed if “[d]uring the
commission of the current offense, the defendant . . . was armed with a . . . deadly
weapon . . . .” (§ 1170.12, subd. (c)(2)(C)(iii)), defendant next contends that the phrase
“during the commission of the current offense” “requires an additional, separate
‘tethering’ felony offense in order to be applicable.” Defendant asserts that “[t]his
conclusion flows from the Legislature’s repeated use of the identical phrase, ‘during the
commission of the current offense,’ in several enhancement statutes, and the settled
construction of the meaning of this phrase by the courts.”


                                             10
       However, defendant’s citations to the arming enhancement statutes establish that
the language is not identical, because these statutes use the phrase “in the commission
of.” (§ 12022, subd. (a)(1) [one year enhancement for any person “armed with a firearm
in the commission of a felony or attempted felony . . . .”]; § 12022, subd. (b)(1) [one year
enhancement where person “personally uses a deadly or dangerous weapon in the
commission of a felony or attempted felony . . . .”]; and § 12022.5, subd. (a) [3, 4, or 10
year enhancement for person “who personally uses a firearm in the commission of a
felony or attempted felony . . . .”].) Osuna, supra, 225 Cal.App.4th 1020 explained the
distinction. “However, unlike section 12022, which requires that a defendant be armed
‘in the commission of’ a felony for additional punishment to be imposed (italics added),
the Act disqualifies an inmate from eligibility for lesser punishment if he or she was
armed with a firearm ‘during the commission of’ the current offense (italics added).
‘During’ is variously defined as ‘throughout the continuance or course of’ or ‘at some
point in the course of.’ [Citation.] In other words, it requires a temporal nexus between
the arming and the underlying felony, not a facilitative one. The two are not the same.
[Citation.]” (Osuna, at p. 1032.) “Since the Act uses the phrase ‘[d]uring the
commission of the current offense,’ and not in the commission of the current offense
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the
imposition of additional punishment but rather eligibility for reduced punishment, we
conclude the literal language of the Act disqualifies an inmate from resentencing if he or
she was armed with a firearm during the unlawful possession of that firearm.” (Ibid.)
Applying the analysis of Osuna to the present case, we conclude that the Act does not
mandate exclusion for resentencing only where there is a separate tethering felony in
which the defendant is armed with a deadly weapon.


                                         V. Disposition
       The order is affirmed.
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                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Elia, J.




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