Filed 5/16/16 P. v. Booker 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E064657

v.                                                                      (Super.Ct.No. FVI023321)

ANDRE LEDON BOOKER,                                                     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.

         Andre Ledon Booker, in pro. per.; and Gregory L. Cannon, under appointment by

the Court of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Andre Ledon Booker appeals after the trial court denied

his petition for resentencing under Penal Code section 1170.126, known as the Three

Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,

                                                             1
2012)).1 A notice of appeal was filed on defendant’s behalf on October 15, 2015. We

affirm.

                                PROCEDURAL BACKGROUND

          On March 16, 2006, a jury found defendant guilty of second degree robbery

(§ 211, count 1) and possession of a firearm by a felon (former § 12021, subd. (a)(1),

count 4).2 The jury also found true the allegations that he had 14 prior strike convictions

(§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and four prior serious felony

convictions (§ 667, subd. (a)(1)). On May 16, 2006, the court denied defendant’s motion

to strike the prior convictions and sentenced him to 25 years to life on count 1, plus a

consecutive five-year term for each of the four prior serious felony convictions. It

imposed a term of 25 years to life on count 4, but stayed that term under section 654.

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

otherwise known as the Three Strikes Reform Act of 2012 . . . which became effective

the next day . . . [and which] enacted section 1170.126, establishing a procedure for an

offender serving an indeterminate life sentence for a third strike conviction that is not



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

          “Former section 12021, subdivision (a)(1) was repealed as of January 1, 2012,
          2
but its provisions were reenacted without substantive change as section 29800,
subdivision (a)(1). [Citation.] Because defendant was convicted under the repealed
statute, which was only renumbered without substantive change, we [will] refer to former
section 12021 throughout this opinion for clarity and convenience. For brevity, we will
not use the word ‘former’ . . . .” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1027,
fn. 3.)


                                                 2
defined as a serious and/or violent felony to file a petition for recall of sentence.” (Teal

v. Superior Court (2014) 60 Cal.4th 595, 596-597.)

       On September 21, 2015, defendant filed an in propria persona petition for recall of

sentence under section 1170.126. Defendant argued that possession of a firearm by a

felon (§ 12021, subd. (a)(1)) was not a violent or serious felony; thus, he should be

resentenced on that count, pursuant to Proposition 36.3 He also argued that he had good

cause for filing his petition after the two-year deadline because he only recently

discovered the holding in People v. Johnson (2015) 61 Cal.4th 674 (Johnson), which was

applicable to his case. The court denied the petition because it was untimely and because

defendant was statutorily ineligible, since the record showed he was armed with a firearm

during the commission of the offense.

       On October 15, 2015, defendant filed a notice of appeal, challenging the court’s

finding that he was ineligible for resentencing under section 1170.126.

                                         ANALYSIS

       After the notice of appeal was filed, this court appointed counsel to represent

defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25

Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the

case, and identifying the following potential arguable issues: (1) whether the trial court

abused its discretion by implicitly finding that defendant failed to show good cause for

failing to file his petition within two years of the effective date of Proposition 36;

       3 We note that defendant mistakenly referred to his conviction for a violation of
section 12021, subdivision (a)(1), as count 2 in his petition.


                                              3
(2) whether the trial court erred by considering the unpublished decision of this court in

making the factual determination that defendant was armed with a firearm in the

commission of count 4; (3) whether defendant was entitled to a jury trial on the question

of whether he was armed with a firearm; (4) whether being armed in the commission of

an offense requires a facilitative nexus between the arming and the commission of the

offense; (5) whether there is a requirement of pleading and proof for petitions for

retrospective relief under section 1170.126; (6) whether it is possible to be armed in the

commission of the offense, within the meaning of section 667, subdivision (e)(2)(C)(iii),

for the offense of possession of a firearm by a felon; and (7) whether a defendant is

eligible for resentencing under section 1170.126 when the sentencing court stayed

sentence on the potentially eligible count of conviction pursuant to section 654.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has done. In a handwritten supplemental brief, defendant claims: (1) he is entitled to

a later filing date of 2015 on his Proposition 36 petition in light of the ruling in Johnson,

supra, 61 Cal.4th 674; (2) the trial court abused its discretion when substituting the jury’s

verdict for its own when it determined that defendant was personally armed with a

firearm in the commission of count 4; (3) his due process and equal protection rights will

be violated if his sentence on count 4 is not reversed; (4) the trial court prejudicially erred

in failing to apply Proposition 36 retroactively; (5) the three strikes law should not have

been applied retroactively to convictions before its enactment in 1994; (6) applying the

three strikes law retroactively before 1994 violated his due process and equal protection

rights; (7) the trial court prejudicially breached his plea agreements concerning four of


                                               4
his prior convictions when it sentenced him to 45 years to life; and (8) the trial court

violated section 1170.1, subdivisions (a)-(g), when it sentenced him to both the five-year

sentence enhancements under section 667, subdivision (a), and 25 years to life, for the

same prior convictions.

       First, the trial court properly denied defendant’s Proposition 36 petition on the

ground that it was untimely. Section 1170.126, subdivision (b), provides that “[a]ny

person serving an indeterminate term of life imprisonment imposed pursuant to paragraph

(2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section

1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or

subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two

years after the effective date of the act that added this section or at a later date upon a

showing of good cause . . . .” (Italics added.) The effective date of Proposition was

November 7, 2012, and defendant filed his petition on September 21, 2015—almost three

years later. Defendant contends that he had good cause for filing his petition late, since it

was based on the holding in Johnson, supra, 61 Cal.4th 674. He asserts that he did not

know he was entitled to be resentenced under Proposition 36 until the Supreme Court

decided Johnson, which affirmed that the presence of a conviction of a serious or violent

felony did not disqualify an inmate from resentencing with respect to a current offense

that was neither serious nor violent. He claims that since the Johnson court did not

conclude that resentencing was allowed in this situation until 2015, he was entitled to file

his petition late. We disagree. Johnson affirmed the appellate court decisions in two


                                               5
cases, and there is nothing in the Supreme Court’s holding that permits an inmate to file a

petition past the two-year statutory deadline. (Johnson, supra, 61 Cal.4th at p. 695.)

       Furthermore, the trial court here properly denied defendant’s Proposition 36

petition on the ground that he was disqualified from relief. An inmate is disqualified

from resentencing if, “[d]uring the commission of the current offense, the defendant used

a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily

injury to another person.” (§ 1170.12, subd. (c)(2)(C)(iii).) “‘[A]rmed with a firearm,’

has been statutorily defined and judicially construed to mean having a firearm available

for use, either offensively or defensively.” (People v. Osuna (2014) 225 Cal.App.4th

1020, 1029 (Osuna).) Defendant’s current conviction was for violating section 12021,

subdivision (a)(1), which “makes it a felony for a person previously convicted of a felony

to own, purchase, receive, or have in his or her possession or under his or her custody or

control, any firearm. . . . ‘A defendant possesses a weapon when it is under his dominion

and control. [Citation.]’” (Ibid.) Possessing a firearm is not necessarily the same as

being “armed with a firearm,” in light of the definition discussed ante. “A firearm can be

under a person’s dominion and control without it being available for use.” (Id. at

p. 1030.) The facts in the instant case support a finding that defendant had a firearm

available for offensive or defensive use. According to the appellate opinion affirming the

conviction, which we may properly consider (see ibid.), defendant was actually holding a

handgun when he and his cohort were fleeing after robbing a woman. A police officer

observed defendant run through a parking lot, stop briefly, and point the gun toward a

truck in the parking lot. (See People v. Booker (Aug. 27, 2007, E040552) [nonpub.


                                             6
opn.].) Thus, defendant was “armed with a firearm” within the meaning of Proposition

36. The court properly found that he was disqualified from resentencing. (§ 1170.12,

subd. (c)(2)(C)(iii).)

       We note defendant’s contention that the trial court abused its discretion when it

determined he was armed with a firearm, since he was not charged with an “armed

allegation” and the jury did not find him guilty of an armed allegation. However,

disqualification for resentencing under Proposition 36 does not require an enhancement

to have been pled and proved. (Osuna, supra, 225 Cal.App.4th at p. 1038.) We further

note that “disqualifying factors need not be proven to a jury beyond a reasonable doubt

where eligibility for resentencing under section 1170.126 is concerned.” (Ibid., fn.

omitted.)

       Defendant also argues that his due process and equal protection rights will be

violated if his sentence on count 4 is not reversed. He contends that, as of November

2012, if a defendant was to be convicted of being a felon in possession of a firearm, he

would not be sentenced to 25 years to life because the offense is not serious or violent;

thus, since he is “similarly situated,” why should he remain with a 25 year-to-life

sentence? He further claims that the trial court erred in failing to apply Proposition 36

retroactively. However, defendant is not similarly situated to someone simply convicted

of being a felon in possession of a firearm, and the court did not deny his petition because

it refused to apply Proposition 36 retroactively. Rather, as discussed ante, defendant was

disqualified from relief under Proposition 36 because he was armed with a firearm during

the commission of the offense. (§ 1170.12, subd. (c)(2)(C)(iii).)


                                             7
       In a related argument, defendant contends that, if this court concludes that

Proposition 36 should not have been applied retroactively, the three strikes law also

should not have been applied retroactively to convictions before 1994. Therefore, he

claims that all of his prior strikes should be vacated. We are not concluding that

Proposition 36 should not have been applied retroactively. We are affirming that the trial

court properly denied defendant’s petition for the reasons stated. (See ante.)

       Next, defendant argues that applying the three strikes law retroactively by

counting his prior convictions that were committed before the three strikes law was

enacted violated his due process and equal protection rights. In other words, he claims

that using pre-March 7, 1994 prior convictions will result in retroactive application of the

law. However, “[w]e disagree with his premise that using convictions prior to enactment

of the ‘three strikes’ law results in a retroactive application. ‘A statute is not retroactive

in operation merely because it draws upon facts antecedent to its enactment for its

operation.’ [Citation.] ‘In the context of habitual criminal statutes, “increased penalties

for subsequent offenses are attributable to the defendant’s status as a repeat offender and

arise as an incident of the subsequent offense rather than constituting a penalty for the

prior offense.” [Citation.]’” (People v. Sipe (1995) 36 Cal.App.4th 468, 478-479 (Sipe).)

       In addition, defendant contends that the trial court breached his plea agreements

regarding his prior convictions in 1980, 1981, 1989, and 1990 when it sentenced him in

the instant case under the three strikes law. He contends that the court violated his plea

agreements because the three strikes law did not exist when he entered into them, and he

was only informed that he would receive five-year serious felony enhancements. He


                                               8
asserts that, had he known that the convictions would later be used as strikes, he would

not have entered the plea agreements. He then makes the same argument with regard to

the five-year serious felony conviction enhancements. (§ 667, subd. (a)(1).) Defendant’s

sentence in the instant case had nothing to do with the plea agreements he reached in his

previous cases. In those cases, he reached agreements and was sentenced accordingly.

Moreover, we note that “[f]uture use of a current conviction is not a direct consequence

of that conviction.” (Sipe, supra, 36 Cal.App.4th at p. 479.) Thus, no advisement that

pleading guilty to a serious or violent felony could be used to enhance a later sentence

was necessary. (Ibid.)

         Finally, defendant argues that the trial court violated section 1170.1,

subdivisions (a)-(g), when it sentenced him to five-year serious felony conviction

enhancements (§ 667, subd. (a)) and 25 years to life under the three strikes law, based on

the same prior convictions. However, section 1170.1 governs the calculation of

consecutive terms upon conviction of two or more felonies. It sets forth the procedure by

which consecutive terms are to be calculated, defining the “principal term,” the

“subordinate term,” and the “aggregate term.” (§ 1170.1, subd. (a); see People v. Veasey

(1979) 98 Cal.App.3d 779, 788.) Plainly, section 1170.1 does not support defendant’s

claim.

         Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues.




                                               9
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                               HOLLENHORST
                                                             J.


We concur:


RAMIREZ
                    P. J.


MILLER
                       J.




                                     10
