Filed 7/16/14 P. v. McKinnon 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059823

v.                                                                       (Super.Ct.No. FSB034336)

WILLIE SYLVESTER MCKINNON,                                               OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson, and Michael Pulos, Deputy Attorneys General, for Plaintiff and

Respondent.

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       Defendant Willie Sylvester McKinnon filed a petition for resentencing pursuant to

Penal Code section 1170.126.1 The court denied the petition finding defendant ineligible

for resentencing. On appeal,2 defendant contends the court erred in finding him

ineligible for resentencing. We affirm the judgment.

                       FACTUAL AND PROCEDURAL HISTORY3

       During surveillance of defendant’s motor home, an undercover police officer

witnessed six people approach defendant’s motor home, exchange objects with

defendant, and leave within a 35-minute period. The officer suspected defendant of

engaging in narcotics sales, so he approached defendant and asked for narcotics.

Defendant said he was out of narcotics. The officer walked down the street and observed


       1   All further statutory references will be to the Penal Code unless otherwise noted.

       2  We note the appealability of the denial of a section 1170.126 petition is
currently being considered by the Supreme Court. (Teal v. Superior Court (2013) 217
Cal.App.4th 308, review granted July 31, 2013, S211708 [not appealable]; People v.
Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017
[appealable].) Even if we were to conclude it was a nonappealable order, we could
consider, in the interest of judicial economy and because of uncertainty in the law, that
defendant’s appeal is a petition for writ of habeas corpus or writ of mandate. (Braziel v.
Superior Court (2014) 225 Cal.App.4th 933 [treating appeal from denial of petition for
resentencing as a petition for writ of mandate]; See People v. Segura (2008) 44 Cal.4th
921, 928 fn. 4 [treating appeal from nonappealable order as petition for writ of habeas
corpus].)

       3  On our own motion, we take judicial notice of our opinion in case No. E035580,
dated August 16, 2005, from defendant’s appeal of his original conviction and judgment.
(Evid. Code, § 451, subd. (a) [Judicial notice shall be taken of the decisional law of this
state.].) We derive much of our factual history from the opinion.



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another individual have brief contact with defendant. The officer then walked up to

defendant wearing a vest which identified him as a police officer. The officer identified

himself to defendant as a police officer. Defendant started the engine of the motor home

and began to drive away.

       The officer ran alongside the motor home during which defendant traveled

alongside a U-Haul truck where defendant “‘almost smashed’” the officer between the

two vehicles. The officer was picked up in a vehicle by another officer and they pursued

defendant. During the pursuit, defendant threw a small package out the window which

was later retrieved and found to contain 5.1 grams of cocaine base. The officers

eventually apprehended defendant.

       On November 21, 2002, a jury convicted defendant of assault with a deadly

weapon and by force likely to produce great bodily injury upon a peace officer (count 1;

§ 245, subd. (c)), transportation of cocaine base (count 2; Health & Saf. Code, § 11352,

subd. (a)), and possession of cocaine base for sale (count 3; Health & Saf. Code,

§ 11351.5). The jury additionally found true allegations defendant had incurred two prior

strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court sentenced

defendant to three consecutive terms of 25 years to life, but stayed sentence on count 3

pursuant to section 654, for a total, indeterminate term of 50 years to life.

       On August 28, 2013, defendant filed a petition for resentencing pursuant to section

1170.126 listing only his conviction for the count 1 offense and contending he had been

convicted for assault with a deadly weapon or by means likely to produce great bodily

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injury on a peace officer. The court denied the petition finding “that Petitioner does not

satisfy the criteria in [section] 1170.126[, subdivision] (e) and is not eligible. [¶]

Defendant’s current commitment offense include[s] ADW on [a] peace officer[,] . . . a

serious felony. As such[,] defendant is ineligible for re-sentencing under [section]

1170.126.”

                                        DISCUSSION

       On appeal, defendant contends the court erred in finding him ineligible for

resentencing on counts 2 and 3 because neither offense was a serious or violent felony.

We disagree.

       Section 1170.126 “provides a means whereby prisoners currently serving

sentences of 25 years to life for a third felony conviction which was not a serious or

violent felony may seek court review of their indeterminate sentences and, under certain

circumstances, obtain resentencing as if they had only one prior serious or violent felony

conviction.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286.)

“First, the court must determine whether the prisoner is eligible for resentencing; second,

the court must determine whether resentencing would pose an unreasonable risk of

danger to public safety; and third, if the prisoner is eligible and resentencing would not

pose an unreasonable risk of danger, the court must actually resentence the prisoner.”

(Id. at p. 1299.)

       “Any person serving an indeterminate term of life imprisonment . . . upon

conviction . . . of a felony or felonies that are not defined as serious and/or violent . . .

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may file a petition for a recall of sentence . . . before the trial court that entered the

judgment of conviction in his or her case, to request resentencing . . . .” (§ 1170.126,

subd. (b).) Under section 1170.126, subdivision (e)(1), an inmate is ineligible for

resentencing if his indeterminate sentence was imposed for any conviction of a felony

that is defined as serious or violent by section 1192.7, subd. (c). (§ 1192.7, subd.

(c)(1)(11) [Assault with a deadly weapon upon a peace officer.].) Likewise, under

section 1170.126, subdivision (e)(2), an inmate is ineligible for resentencing if the record

establishes his current sentence was imposed for any offense appearing in sections 667,

subdivision (e)(2)(C)(i)-(iii) or 1170.12, subdivision (c)(2)(C)(i)-(iii). (§§ 667, subd.

(e)(2)(C)(iii) [“During the commission of the current offense, the defendant . . . was

armed with a . . . deadly weapon . . . .”], 1170.12, subd. (c)(2)(C)(iii) [“During the

commission of the current offense, the defendant . . . was armed with a . . . deadly

weapon . . . .”].)

       Section 1170.126 requires the superior court to “consider all current felonies in

determining eligibility for recall of sentence.” (Braziel v. Superior Court, supra, 225

Cal.App.4th 933, 947.) “[A] defendant inmate is not eligible for recall of his sentence if

any of the offenses for which he is serving a three strikes sentence is a serious and/or




                                                5
violent felony, even if one or more of those sentences are not serious and/or violent

felonies.” (Id. at pp. 946-947.)4

       First, defendant failed to carry his burden of specifying all the charged felonies

which resulted in his sentence. (§ 1170.126, subd. (d).) Defendant only listed his

conviction on count 1 in his petition. Second, defendant did not request resentencing on

counts 2 or 3 in his petition. Therefore, defendant has forfeited any contention on appeal

that he was eligible for resentencing on counts 2 or 3. (People v. McCullough (2013) 56

Cal.4th 589, 591, 592-599 [Failure to raise issue in trial court forfeits argument on

appeal.].)

       Third, defendant failed to carry his burden of the production of evidence from

which the trial court could make a proper determination of defendant’s eligibility for

resentencing. (See In re Champion (2014) 58 Cal.4th 965, 1007 [Defendant in petition

for writ of habeas corpus “‘“bears a heavy burden initially to plead sufficient grounds of

relief, and then later to prove them.”’”].) Here, defendant did not produce any evidence

of his record of conviction or the record of his prior strike convictions. Finally,

defendant was statutorily ineligible for resentencing because his indeterminate sentence

was imposed, in part, due to his conviction of assault with a deadly weapon upon a peace

       4  We deny the People’s request for judicial notice of the “Official Voter
Information Guide for the California General Election of November 6, 2012” (Guide).
The court in Braziel conducted sufficient analysis of the Guide before concluding its
defendant was ineligible for resentencing on essentially the same basis as defendant in
this case. (Braziel v. Superior Court, supra, 225 Cal.App.4th at p. 945.)



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officer. (§§ 667, subd. (e)(2)(C)(iii); 1170.126, subd. (e)(2)(C)(iii); 1192.7, subd.

(c)(1)(11); Braziel v. Superior Court, supra, 225 Cal.App.4th at p. 948.) Therefore, the

court properly denied defendant’s petition.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                           J.

We concur:


KING
                Acting P. J.


MILLER
                           J.




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