Filed 7/25/16 P. v. Martin CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068652

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE302876)

RICHARD B. MARTIN,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

         Kessler & Seecof and Daniel J. Kessler, under appointment by the Court of

Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Arlene A. Sevidal and Michael P. Pulos, Deputy Attorneys

General, for Plaintiff and Respondent.

         In 2011, Richard B. Martin was sentenced to 25 years to life under the "Three

Strikes" law after a jury convicted him of two counts of possession of a weapon in a
penal institution (Pen. Code,1 § 4502, subd.(a)) and two counts of carrying a concealed

dirk or dagger. (§ 12020, subd. (a)(4).) Martin unsuccessfully petitioned the trial court

for resentencing under Proposition 36 (§ 1170.126, the Three Strikes Reform Act of 2012

(the Act)). Martin contends the trial court erred in finding the weapon he possessed and

carried was deadly; therefore, he was eligible for resentencing. We reject Martin's

contentions and affirm the order.

                               FACTUAL BACKGROUND

       In 2010, a San Diego Sheriff's Deputy at George Bailey Detention Facility heard

Martin tell another inmate Martin was always "strapped," meaning he had a weapon.

Hours later, the deputy searched Martin and found in the inner waistband of Martin's

pants two toothbrushes that were sharpened on one end and had makeshift handles on the

other. Martin appealed the judgment, which we affirmed. (People v. Martin (May 14,

2012, D059460) [nonpub. opn.] (Martin I).)

       In denying Martin's petition for resentencing, the trial court relied on the facts set

forth in Martin I and concluded Martin was armed with a deadly weapon within the

meaning of section 1170.126, and therefore ineligible for resentencing.




1      Further statutory references are to the Penal Code.
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                                       DISCUSSION

       Martin claims the trial court incorrectly found he was armed with a deadly weapon

when he violated section 4502, subdivision (a). Specifically, Martin asserts: "The

prosecution in the current offense did not charge appellant with being armed with a

deadly weapon, that fact was not proved to the jury in his trial, and that fact was not at

issue or discussed in [Martin I]. The trial court's finding that the record of conviction

established that appellant was armed with a deadly weapon during the current offense

was unsupported."

       The People respond that a dirk is a deadly weapon as a matter of law and the jury

found Martin was in possession of a dirk. Further, the trial court was permitted under

People v. White (2014) 223 Cal.App.4th 512 (White) to consider the record of conviction

to determine Martin's eligibility for relief under the Act.

       The Act changed the requirements for sentencing third strike offenders. (People v.

Yearwood (2013) 213 Cal.App.4th 161, 167.) Prior to the Act, an individual with two or

more strike priors who was convicted of any new felony could be sentenced to an

indeterminate life term. (Ibid.) Under the Act, a life sentence is reserved for cases in

which the third strike is serious or violent, or the prosecution has pleaded and proved an

enumerated disqualifying factor. (Id. at pp. 167-168.) The Act has two parts: a

prospective part that allows sentence reduction "to be imposed in future three strike cases

where the third strike is not a serious or violent felony" (People v. Brimmer (2014) 230

Cal.App.4th 782, 791-792 (Brimmer)), and a retrospective part that provides "relief for



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prisoners already serving third strike sentences in cases where the third strike was not a

serious or violent felony." (Id. at p. 792.)

       A prisoner is eligible for retrospective relief under the Act if he or she satisfies

three criteria: (1) the inmate is serving an indeterminate life sentence for a crime that is

not defined as a serious or violent felony; (2) the current sentence was not imposed for

any offenses listed in sections 667, subdivision (e)(2)(C)(i)-(iii) and 1170.12, subdivision

(c)(2)(C)(i)-(iii); and (3) the inmate has no prior convictions for any of the offenses listed

in section 667, subdivision (e)(2)(C)(iv) or section 1170.129, subdivision (c)(2)(C)(iv).

(§ 1170.126, subd. (e).)

       On appeal, the parties disagree regarding whether the second criterion is satisfied;

that is, whether "[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." (§§ 667, subd. (e)(2)(C)(iii), 1170.12 subd. (c)(2)(C)(iii),

italics added.)

                                               A.

       In People v. Graham (1969) 71 Cal.2d 303 (Graham), the California Supreme

Court classified "dangerous or deadly weapons" into two groups. " 'The instrumentalities

falling in the first, such as guns, dirks and blackjacks, which are weapons in the strict

sense of the word and are "dangerous and deadly" to others in the ordinary use for

which they are designed, may be said as a matter of law to be "dangerous or deadly

weapons." ' " (Id. at p. 327.) The second class of weapons " 'such as ordinary razors,

pocket-knives, hatpins, canes . . . and other sharp or heavy objects, which are not

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weapons in the strict sense of the word and are not "dangerous or deadly" to others in the

ordinary use for which they are designed, may not be said as a matter of law to be

"dangerous or deadly weapons." ' " (Id. at pp. 327-328.)

       After Graham, supra, 71 Cal.2d 303, the Legislature defined a "dirk or dagger" for

the first time (People v. Rubalcava (2000) 23 Cal.4th. 322, 330, citing Stats. 1993, ch.

357, § 1, p. 2155) and in 1995, adopted the current definition, which states in part: "[A]

knife or other instrument with or without a handguard that is capable of ready use as a

stabbing weapon that may inflict great bodily injury or death." (§ 16470.) The statutory

definition of a dirk or dagger does not affect Graham's classification of a dirk or dagger

as a deadly weapon. Graham's classification of deadly weapons continues to be valid.

(See In re Bartholomew D. (2005) 131 Cal.App.4th 317, 323, 326 [BB gun used in a

robbery was a deadly weapon]; People v. Henderson (1999) 76 Cal.App.4th 453, 459

[classifying a pit bull as a deadly weapon].) We conclude that under Graham and section

16470, the toothbrushes that were found on Martin's person met the definition of a dirk,

which qualifies as a deadly weapon.

                                            B.

       In White, supra, 223 Cal.App.4th 512, the defendant was convicted of being a

felon in possession of a firearm. We found him ineligible for resentencing under the Act

because he was armed with a firearm during the commission of his current offense. (Id.

at p. 518.) We held that "a trial court may deny section 1170.126 resentencing relief

under the armed-with-a-firearm exclusion even if the accusatory pleading, under which

the defendant was charged and convicted of possession of a firearm by a felon, did not

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allege he or she was armed with a firearm during the commission of that possession

offense." (White, supra, 223 Cal.App.4th at p. 519.) Further, the record of conviction

may be used to determine resentencing eligibility regardless of whether the prosecution

pleaded and proved the defendant was armed with a weapon. (Id. at pp. 525-526.)

       In Brimmer, supra, 230 Cal.App.4th 782, the defendant was arguing with his

girlfriend and took out a shotgun. Brimmer was convicted of being a felon in possession

of a firearm. (Id. at p. 788.) In the trial court, he successfully petitioned for resentencing

under the Act. (Id. at p. 789.) On appeal, the Brimmer court agreed with White's holding

and concluded the defendant was ineligible for resentencing under the armed with a

firearm exclusion and a trial court "may deny section 1170.126 resentencing relief under

the armed with a firearm exclusion even if the accusatory pleading did not allege he or

she used or was armed with a firearm during the commission of that possessory offense."

(Brimmer, at p. 805.)

       Applying White, supra, 223 Cal.App.4th 512 and Brimmer, supra, 230

Cal.App.4th 782, we conclude that the prosecution was not required to plead and prove

an element of the offense or conduct that would make Martin ineligible for resentencing

under the Act, section 1170.126, subdivision (e)(2), so long as the facts in the record of

conviction support his ineligibility. In Martin I, we outlined sufficient facts from which

we can conclude that Martin was ineligible for resentencing relief under the armed-with-

a-deadly-weapon exclusion. The trial court's findings are also consistent with the

purpose of the Act, which is to provide resentencing relief to low-risk, nonviolent

inmates serving life sentences for petty crimes. (White, at p. 522.) Martin's current

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offenses of possessing a dirk or dagger in a penal institution and carrying a concealed

dirk or dagger cannot be deemed petty offenses for purposes of the Act.

                                       DISPOSITION

       The trial court's order is affirmed.




                                                                           O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


HUFFMAN, J.




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