Filed 5/21/14 P. v. Vicario 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058936

v.                                                                       (Super.Ct.No. FCH07176)

ALFRED VICARIO,                                                          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.

         So’Hum Law Center of Richard Jay Moller and Richard Jay Moller, 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, Senior Assistant Attorney General, Barry Carlton, and Heather

M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.




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                                                I

                                      INTRODUCTION

       On July 16, 2008, a jury found defendant and appellant Alfred Vicario guilty of

shooting at an inhabited dwelling under Penal Code1 section 246, and possession of a

firearm by a felon under section 12021, subdivision (a)(1). Thereafter, the trial court

found that defendant previously had been convicted of two serious or violent felonies

under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through

(i)); and that defendant had three prison priors under section 667.5, subdivision (b).

       On February 3, 2009, the court denied probation and sentenced defendant under

the Three Strikes Law for a total term of 53 years-to-life as follows: two consecutive 25-

years-to-life sentences for the convictions, in addition to three consecutive years for his

prison priors.

       Defendant appealed. On January 22, 2010, we affirmed the judgment in Case

Number E047749.

       On November 6, 2012, the California electorate approved Proposition 36, the

Three Strikes Reform Act of 2012 (the Act). The Act amended sections 667 and

1170.12, and added section 1170.126. (See People v. Yearwood (2013) 213 Cal.App.4th

161, 167 (Yearwood).)

       Almost four years after defendant was sentenced, on March 18, 2013, defendant

filed a petition for recall of sentence under section 1170.126. On April 9, 2013, the trial


       1         All statutory references are to the Penal Code unless otherwise indicated.

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court denied defendant’s petition, finding that defendant was ineligible for resentencing

under section 1170.126, subdivision (e) because his “current commitment offenses

includes PC246 (shooting at inhabited dwelling) a serious felony.”

       Thereafter, defendant requested reconsideration of his petition for recall of

sentence. On May 31, 2013, the trial court granted defendant’s request to take the motion

off calendar. The court, however, ruled that defendant’s request for reconsideration was

denied because he was ineligible for resentencing under section 1170.126, subdivision

(e).

       On June 12, 2013, defendant filed a notice of appeal. On appeal, he contends that

he was not statutorily ineligible for resentencing as to his conviction for possession of a

firearm by a felon under section 12021, subdivision (a)(1). The People disagree, arguing

(1) the trial court’s denial of defendant’s petition is not appealable; and (2) defendant’s

conviction for shooting at an inhabited dwelling under section 246 (count 1) is a serious

and violent felony that renders defendant ineligible to be resentenced.

       We conclude that the trial court did not err in denying defendant’s petition for

resentencing because defendant’s sentence was imposed, in part, for shooting at an

inhabited dwelling (§ 246), which is a serious felony. Accordingly, we agree with the

trial court that defendant was ineligible for resentencing under section 1170.126.




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                                             II

                               STATEMENT OF FACTS

       We repeat the fact statement from our former slip opinion, People v. Vicario

(January 22, 2010) E047749, typed opinion at pages two and three:

       “On April 2, 2005, Anna M. was cleaning the side yard of her residence when she

heard her gate open and saw the defendant run past her. Defendant turned and walked

towards her and began pacing. Anna noticed he had a gun. Anna asked him what was

going on, but defendant did not reply; he merely ran into the back yard and then around

the residence. Anna came out to the front of the residence.

       “From the front of the property, Anna heard something on the east side of the

property and approached the gate where she saw defendant with the gun in his hand.

Then she heard her friend Gabriel drive up, returning the car he had borrowed from

Anna. Anna opened the gate so Gabriel could park in the driveway, and saw defendant in

the driveway behind a secondary gate. Anna asked Gabriel not to leave.

       “Anna and Gabriel went inside the residence and to the back door, where they

could see that defendant was near the laundry room. Both Anna and Gabriel tried to get

defendant to leave. Instead, defendant fired a shot into the door, striking the stucco.

Both Anna and Gabriel felt a spray of debris in the face from the shot, although neither

was wounded. Anna and Gabriel retreated to Anna’s parents’ bedroom, where they heard

a second shot. A neighbor helped them leave the house and someone called police.

When police arrived, Anna, who did not know defendant, described the shooting suspect

as Hispanic, with a mustache, wearing a white shirt and blue jeans, and holding a gun.

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       “A short time later, defendant was taken into custody when he was observed

staggering up the street with a chrome revolver in his hand. He was wearing a white shirt

and blue pants. The cylinder had three live rounds and two expended cartridges.

Defendant appeared to be under the influence of a stimulant: he was fidgety, could not

control his movements, was sweating profusely. He was taken to a hospital for

detoxification, and was later interviewed. He told the officer he was being chased by

people with guns, members of the Mexican Mafia, because he had not paid his “taxes,”

that is, a portion of the profits from drug sales. A gunshot residue test was conducted,

and a particle of gunshot residue was found on defendant’s left hand.” (Slip Opn. case

No. E047749, pages 2-3)

                                             III

                                        ANALYSIS

       A.     Appealability

       We must first address the People’s argument that “the trial court’s order finding

[defendant] ineligible for resentencing under Penal Code section 1170.126 is not

appealable because [defendant] does not fall within the class of persons entitled to file a

petition for recall under that section.” This precise issue is before the California Supreme

Court. (See People v. Leggett (2013) 219 Cal.App.4th 846, review granted Dec. 18,

2013, S214264; Teal v. Superior court (2013) 217 Cal.App.4th 308, review granted July

31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July

31, 2013, S212017.)



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       “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. (See In re Martinez

(2014) 223 Cal.App.4th 610, 615 [treating appeal from section 1170.126 petition as a

petition for writ of habeas corpus]; People v. Segura (2008) 44 Cal.4th 921, 928 fn. 4

[treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v.

Superior Court (2006) 139 Cal.App.4th 845,852-853 [Fourth Dist., Div. Two] [treating

appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we

will review defendant’s appeal.”

       B.     The Act

       “The Act changes the requirements for sentencing a third strike offender to an

indeterminate term of 25 years to life imprisonment. Under the original version of the

three strikes law a recidivist with two or more prior strikes who is convicted of any new

felony is subject to an indeterminate life sentence. (Yearwood, supra, 213 Cal.App.4th at

pp. 167.) “However, the Act altered the previous three strikes law and limits three strikes

sentences to current convictions of serious or violent felonies and a limited number of

other felonies [footnote omitted] unless the offender has a prior strike conviction that

falls within one of the several enumerated categories. [Footnote omitted.] If these

exceptions do not apply to a defendant, then the court is to sentence the defendant as a

second strike offender. (See Yearwood, supra, 213 Cal.App.4th at p. 168; §§667,

1170.12.)” (In re Martinez, supra, 223 Cal.App.4th at pp. 615-616.) “Section 1170.126

also establishes a procedure for qualified inmates serving indeterminate life sentences

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under the three strikes law to seek resentencing under the terms of the amended law.”

(Id. at p. 616.)

       In this case, defendant was convicted for shooting at an inhabited dwelling under

section 246 (count 1) and possession of a firearm by a felon under section 12021,

subdivision (a)(1) (count 2). While defendant concedes that his sentence for count 1 is

ineligible for resentencing, he claims that “[b]ecause possession of a firearm by a felon is

not a serious or violent felony, [defendant] was presumptively eligible for resentencing

on this offense.” This precise issue was decided recently in In re Martinez, supra, 223

Cal.App.4th 610.

       In In re Martinez, supra, 223 Cal.App.4th 610, the defendant was convicted of

inflicting corporal injury on his wife (count 1); attempted forcible sodomy (count 3);

attempted forcible sexual penetration (count 4); and spousal rape (count 5). The jury

found true that the defendant had two prior strike convictions for robbery, both serous

and violent felonies. The court struck his two previous strikes as to counts 3 and 4. The

court then sentenced the defendant as a third strike offender to an indeterminate term of

50 years to life in prison, consisting of an indeterminate term of 25 years to life for count

1 and a consecutive 25 years to life for count 5. The court also sentenced the defendant

to prison for four years under count 3 and four years under count 4, both to run

concurrently to his sentence for count 1. (Id. at p. 614.)

       After the Act went into effect, the defendant filed a motion under section

1170.126. The trial court “summarily denied the petition, finding [the defendant] was

disqualified from seeking relief under the statute because his ‘current commitment

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offenses include PC289(a)(1) and PC262 and PC664/286(c)(2) are serious and violent

felonies making [the defendant] ineligible for re-sentencing under PC1170.126.’” (In re

Martinez, supra, 223 Cal.App.4th at p. 614.) The issue on appeal in that case was

identical to the issue on appeal here: “[W]hether a court, in considering a petition for

resentencing under section 1170.126, must consider all the offenses on which the

petitioner was sentenced or consider each offense and related term of imprisonment

separately.” (Id. at p. 617.)

       The court of appeal concluded that the trial court correctly found that the

defendant was not eligible for resentencing under section 1170.126 because one of his

convictions was a violent and serious felony. The court stated: “We interpret section

1170.126 as requiring the superior court to consider all felonies that led to any

indeterminate life sentence under the previous version of the three strikes law. If one of

those felonies is a serious or violent felony or is otherwise disqualifying under the Act,

section 1170.126 does not apply. . . . The Act clearly was not intended to apply to a

certain type of dangerous criminal.” (In re Martinez, supra, 223 Cal.App.4th at p. 620.)

       Defendant, however, argues that “[i]t would be inappropriate for this Court to rely

on In re Martinez, supra, slip opn. at 8-13, as the state has summarily urged, because the

Martinez court improperly conflated the eligibility requirements for resentencing under

section 1170.126, and the no ‘unreasonable risk of danger to public safety,’ requirement.”

Notwithstanding defendant’s disagreement with the recently-published opinion in In re

Martinez, supra, 223 Cal.App.4th 610, we agree with the court that section 1170.126

requires the trial court “to consider all felonies that led to any indeterminate life sentence

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under the previous version of the three strikes law. If one of those felonies is a serious or

violent felony or is otherwise disqualifying under the Act, section 1170.126 does not

apply.” (Id. at p. 620.)

       In this case, defendant was convicted of shooting at an inhabited dwelling in count

1 and possession of a firearm by a felon in count 2. Defendant concedes “that his

conviction for shooting at an inhabited dwelling [is] a strike.” Under In re Martinez,

supra, 223 Cal.App.4th 610, 620, because of defendant’s conviction in count 1, defendant

is not eligible for resentencing under section 1170.126.

                                             IV

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                RICHLI
                                                                                           J.

We concur:


HOLLENHORST
          Acting P. J.


CODRINGTON
                           J.




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