Filed 5/24/16 P. v. Acevedo 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F070421
    Plaintiff and Respondent,
                                                                             (Super. Ct. No. SC082343A)
    v.

YSIDRO GUELLERMO ACEVEDO,                                                                OPINION
    Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
         Carol Foster, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-
         Ysidro Guellermo Acevedo filed a petition pursuant to the Three Strikes Reform
Act of 2012 (the Act). The trial court denied the petition finding Acevedo was ineligible


*        Before Gomes, Acting P.J., Poochigian, J. and Franson, J.
for resentencing. Appellate counsel filed a brief asserting she could not identify any
arguable issues in this case. We agree and affirm the judgment.
                       FACTUAL AND PROCEDURAL SUMMARY
          In 2001, a jury found Acevedo guilty of two counts of being a felon in possession
of a firearm (former Pen. Code, § 12021, subd. (a)(1))1, two counts of being a felon
carrying a loaded firearm (former § 12031, subd. (a)(2)(A)), and one count of being a
felon in possession of ammunition (former § 12316, subd. (b)(1)) (the 2001 convictions).
He was sentenced to a third strike sentence of 25 years to life. The following factual
summary of the events leading to these convictions is drawn from the opinion from this
court affirming these convictions. (People v. Acevedo (July 29, 2002, F039004) [nonpub.
opn.].)
          Kern County Deputy Sheriff Todd Bishop was on routine patrol when he observed
Acevedo walking in the street erratically as if he was intoxicated. When Bishop
attempted to contact Acevedo, Acevedo ran from the scene. Bishop followed and
eventually caught Acevedo. When he searched Acevedo, Bishop found a handgun in a
holster on Acevedo’s ankle and another handgun, which appeared to have been dropped
during the pursuit, but had been carried in a holster found on Acevedo’s waist. Both
firearms were loaded.
          On August 6, 2014, Acevedo filed a petition pursuant to section 1170.126 seeking
to be resentenced pursuant to the provisions of the Act. The district attorney opposed the
petition arguing Acevedo was ineligible for resentencing because he was armed with a
firearm during the commission of the offense that led to his third strike sentence. A
probation report was filed which included as exhibits the appellate court opinion from the
appeal of the 2001 convictions, and the preliminary hearing transcript from the 2001



1         All further statutory references are to the Penal Code.


                                                2.
convictions. After considering the evidence and the arguments of counsel, the trial court
denied the petition, concluding Acevedo was ineligible for resentencing.
                                    DISCUSSION
       Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
asserting she could not identify any arguable issue in this case. By letter dated May 22,
2015, we invited Acevedo to identify any issues he wished us to address in this appeal.
Acevedo did not respond to our letter. After a thorough review of the record, we agree
with appellate counsel that there are no arguable issues in this case.
       Section 1170.126, enacted as part of the Act, defines those eligible for
resentencing as inmates serving an indeterminate third strike sentence, and (1) not
serving a sentence for a crime that is listed as a serious or violent felony (§§ 667.5, subd.
(c), 1192.7, subd. (c)); (2) not serving a sentence for a crime committed under the
circumstances listed in section 667 subdivision (e)(2)(C) clauses (i) through (iii), or
section 1170.12, subdivision (c)(2)(C), clauses (i) through (iii), and; (3) who does not
have a prior conviction for an offense appearing in section 667, subdivision (e)(2)(C),
clause (iv), or section 1170.12, subdivision (c)(2)(C), clause (iv). (§ 1170.126, subd. (e).)
       If an inmate is eligible under the statute, then he must be resentenced “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).)
       In this case, the trial court concluded Acevedo was ineligible for resentencing
because when he committed the crimes leading to his third strike sentence he was armed
with a firearm. In reaching this conclusion, the trial court relied on section 1170.126,
subdivision (e)(2) and section 667, subdivision (e)(2)(C)(iii). When read together these
two provisions provide that an inmate is ineligible for resentencing if during the
commission of the offense which lead to his third strike sentence the defendant “used a
firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily
injury to another person.” (§ 667, subd. (e)(2)(C)(iii).) The prosecution argued, and the


                                              3.
trial court agreed, the appellate court opinion and the preliminary hearing transcript
established that when Acevedo was arrested he was armed with two firearms.
       We have reviewed the transcript from the preliminary hearing as well as the
opinion issued by this court denying Acevedo’s appeal from the 2001 convictions. These
documents, which were consistent in all relevant respect, conclusively established
Acevedo was personally armed with a firearm when he was arrested. Accordingly,
Acevedo was ineligible for resentencing.
                                     DISPOSITION
       The order denying the petition is affirmed.




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