Filed 3/6/15 P. v. Ramirez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040087
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC474345)

         v.

CARLOS JESSIE RAMIREZ,

         Defendant and Appellant.



         Defendant Carlos Jessie Ramirez, a “Three Strikes” prisoner who is serving an
indeterminate life sentence, appeals from an order denying his petition for recall of his
sentence pursuant to Penal Code section 1170.126.1 We conclude that defendant was
ineligible for resentencing and affirm.


                                     I. Three Strikes Reform Act of 2012
         The Three Strikes Reform Act of 2012 (Reform Act) amended sections 667 and
1170.12 and added section 1170.126. (People v. Superior Court (Martinez) (2014) 225
Cal.App.4th 979, 984.) Under the previous version of the Three Strikes law, a defendant
who had been convicted of two or more serious or violent felonies was subject to an
indeterminate life sentence of 25 years to life after his or her conviction of any new


1
         All further statutory references are to the Penal Code.
                                                             1
felony. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood).) The
Reform Act changed the Three Strikes law by reserving indeterminate life sentence for
cases in which the new offense is also a serious or violent felony, unless the prosecutor
pleads and proves an enumerated disqualifying factor. (Yearwood, at p. 167.) In all other
cases, a recidivist defendant will be sentenced as a second strike offender instead of a
third strike offender. (Yearwood, at pp. 167-168.) The Reform Act “also created a
postconviction release proceeding whereby a prisoner who is serving an indeterminate
life sentence imposed pursuant to the three strikes law for a crime that is not a serious or
violent felony and who is not disqualified, may have his or her sentence recalled and be
sentenced as a second strike offender unless the court determines that resentencing would
pose an unreasonable risk of danger to public safety. (§ 1170.126.)” (Yearwood, at
p. 168.)


                                  II. Statement of the Case
       In 2006, defendant was charged with one count of assault with a deadly weapon or
with force likely to produce great bodily injury (§ 245, subd. (a)(1)). It was further
alleged that defendant personally inflicted great bodily injury during the commission of
the assault (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). The information also alleged three
prior strike convictions (§§ 667, subd. (b)-(i), 1170.12) and one prior serious felony
conviction (§ 667, subd. (a)).
       In 2007, following amendment of the information, defendant pleaded no contest to
battery with the infliction of serious bodily injury (§§ 242, 243, subd. (d)). He also
admitted that he had committed three prior strike convictions (§§ 667, subds. (b)-(i),
1170.12). After the trial court denied defendant’s Romero2 motion, it sentenced him to




2
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
                                              2
an indeterminate term of 25 years to life in state prison. In 2009, this court affirmed the
judgment of conviction. (People v. Ramirez (Feb. 5, 2009, H032993) [nonpub. opn.].)
       In 2013, defendant petitioned for the appointment of counsel and a finding of
eligibility under section 1170.126. The trial court appointed counsel to represent
defendant and set the matter for hearing. The prosecutor filed opposition to the
resentencing petition and attached several documents from the original proceeding,
including the preliminary hearing transcript, the probation officer’s report, the opposition
to defendant’s Romero motion, and the transcript of the sentencing hearing. Defendant’s
disciplinary reports from the Department of Corrections and Rehabilitation were also
attached.
       Defendant requested a jury trial, which the trial court denied. Defendant also filed
a response to the prosecution’s opposition to his petition for resentencing. Following a
hearing, the trial court summarized defendant’s criminal history. The trial court noted
that there was some question as to whether defendant was eligible for resentencing, but
stated that it was assuming that defendant was eligible for resentencing. The trial court
concluded that the prosecution had met its burden of proving that defendant would pose
an unreasonable risk of danger to the public, and thus denied his petition for resentencing.


                                  III.   Statement of Facts
       The following summary is taken from the preliminary hearing. On the evening of
November 17, 2004, defendant came to the house where Lon Belcher was helping a
friend install a ceiling fan. Defendant asked Belcher to go into the street with him
because he wanted to talk to him. At the time, Belcher considered defendant a friend.
Belcher exited the house and told defendant that he was not going to follow him into the
street. Defendant then told Belcher that he wanted to fight. After defendant punched
Belcher, Belcher threw a punch back. The fight continued “for a couple of seconds,” and
then defendant stabbed Belcher. Belcher did not use any weapons before defendant
                                             3
stabbed him. Belcher was eventually stabbed five times. Belcher’s lungs were punctured
and his arm was sliced. He was also stabbed across his abdomen. Defendant fled the
scene when Belcher’s friends exited the house. Belcher was taken to the hospital where
he developed peritonitis and had his colon removed.


                                        IV.    Discussion
       At this court’s request, the parties briefed the issue of whether defendant was
eligible for resentencing under section 1170.126, subdivision (e).
       A prisoner’s petition to recall his or her sentence must state “all of the currently
charged felonies, which resulted in the [third strike life sentence]” and “all of the prior
[strike] convictions . . . .” (§ 1170.126, subd. (d).) The trial court must then determine
whether the prisoner has satisfied the requirements set forth in subdivision (e) of section
1170.126. (§ 1170.126, subd. (f).) A prisoner is eligible for resentencing if: (1) he or
she is currently serving a third strike life term for conviction of a felony or felonies that
are not defined as serious and/or violent felonies by section 667.5, subdivision (c) or
section 1192.7, subdivision (c); (2) the “current sentence was not imposed for any of the
offenses” listed in section 667, subdivision (e)(2)(C)(i)-(iii) or section 1170.12,
subdivision (c)(2)(C)(i)-(iii); and (3) none of the prisoner’s prior convictions are listed in
section 667, subdivision (e)(2)(C)(iv) or section 1170.12, subdivision (c)(2)(C)(iv).
(§ 1170.126, subd. (e).) If the prisoner has met these requirements, the trial court shall
resentence him or her, “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).)
       Defendant first contends that any finding of ineligibility has been waived. We
disagree. The prosecutor argued that defendant was ineligible for resentencing in
opposition to defendant’s petition. The trial court did not rule on this question, but


                                               4
assumed that he was eligible. Thus, the prosecutor preserved the issue on appeal. (See
People v. Thompson (1988) 205 Cal.App.3d 1503, 1508.)
       At issue is whether defendant’s current sentence was imposed for any of the
offenses appearing in section 667, subdivision (e)(2)(C)(i)-(iii) or section 1170.12,
subdivision (c)(2)(C)(i)-(iii). Here, the record of conviction establishes that defendant
was ineligible for resentencing, because “[d]uring the commission of the current offense,
the defendant . . . was armed with a . . . deadly weapon . . . .” (§§ 667, subd. (e)(2)(C)(iii)
& 1170.12, subd. (c)(2)(C)(iii).) The phrase “armed with a . . . deadly weapon” is not
defined in either section 667 or section 1170.12. In interpreting a voter initiative such as
the Reform Act, we apply the same rules of construction employed for interpreting
statutes. (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first consider “ ‘the language
of the statute, giving the words their ordinary meaning.’ [Citation.]” (Ibid.) A person is
armed when the weapon is “ ‘available for use, either offensively or defensively.’ ”
(People v. Pitto (2008) 43 Cal.4th 228, 236; see also CALCRIM No. 3130.) In the
present case, the record of conviction establishes that defendant stabbed the victim five
times with a knife. Since defendant was armed with a deadly weapon when he
committed the current offense, he failed to establish that he was eligible for resentencing.
       Defendant contends that he was eligible for resentencing, because the prosecutor
failed to plead and prove that he was armed with a deadly weapon in the current offense.
       We recently held in People v. Chubbuck (2014) 231 Cal.App.4th 737 (Chubbuck)
that a prosecutor is not required to plead and prove any of the disqualification factors set
forth in section 1170.126. (Chubbuck, at p. 740.) Chubbuck agreed with the analysis in
People v. White (2014) 223 Cal.App.4th 512 (White), People v. Osuna (2014) 225
Cal.App.4th 1020, People v. Blakely (2014) 225 Cal.App.4th 1042 (Blakely), People v.
Elder (2014) 227 Cal.App.4th 1308, and People v. Brimmer (2014) 230 Cal.App.4th 782.
(Chubbuck, supra, at p. 745.)


                                              5
       However, defendant urges this court to reconsider Chubbuck. Defendant first
quotes section 1170.126, subdivision (a), which provides: “The resentencing provisions
under this section and related statute are intended to apply exclusively to persons
presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
whose sentence under this act would not have been an indeterminate life sentence.”
Noting that section 667, subdivision (e)(2)(C)(iii) and section 1170.12, subdivision
(c)(2)(C)(iii) require the prosecutor to plead and prove that he was armed with a deadly
weapon during the commission of the current offense, he argues that the pleading and
proof requirement applies to prisoners seeking resentencing under the Reform Act.
However, as we reasoned in Chubbuck, “the Reform Act explicitly distinguishes between
the procedures applicable to resentencing and the procedures applicable prospectively, to
defendants who are being sentenced for a new offense. ‘Under the prospective part of the
Act, a defendant whose third strike is not a serious or violent felony shall receive a
second strike sentence “unless the prosecution pleads and proves” any of the four
exceptions. (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) In contrast,
under the retrospective part of the Act, after a defendant petitions for resentencing, “the
court shall determine” if any of the exceptions apply. (Pen. Code, § 1170.126, subd. (f).)’
[Citation.] ‘[T]he pleading and proof requirement plainly is a part of only the prospective
part of the Reform Act, which governs the sentencing of a defendant with “two or more
prior serious and/or violent felony convictions” who has suffered a third felony
conviction; it is not a part of section 1170.126, the retrospective part of the Reform Act
that governs a petition for resentencing brought by an inmate already serving a life
sentence under the Three Strikes law.’ [Citation.]” (Chubbuck, supra, 231 Cal.App.4th
at p. 746.) Defendant fails to recognize this distinction and thus does not persuade us that
the analysis in Chubbuck is wrong.


                                              6
       Defendant next contends that pleading and proof is required because the sentence
must be imposed for the “fact” of being armed with a deadly weapon. Relying on
Apprendi v. New Jersey (2000) 530 U.S. 466, defendant argues that “it is now
indisputably a fundamental principle of our constitutional jurisprudence that a sentence
cannot be imposed for a particular aggravated crime or enhancement unless the facts
giving rise to the aggravation or enhancement have been pleaded and either proved to a
jury beyond a reasonable doubt, or admitted by the defendant.” This argument was
rejected in Blakely, supra, 225 Cal.App.4th 1042. Blakely reasoned: “A finding an
inmate is not eligible for resentencing under section 1170.126 does not increase or
aggravate that individual’s sentence; rather, it leaves him or her subject to the sentence
originally imposed. In the case of a third strike offender such as defendant, that sentence
is the indeterminate term of 25 years to life in prison that the trial court permissibly
imposed at the time defendant was convicted of his current offense, ‘solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]’
[Citation.] The trial court’s determination in the section 1170.126 proceeding that
defendant was armed with a firearm during the commission of his current offense did not
increase the penalty to which defendant was already subject, but instead disqualified
defendant from an act of lenity on the part of the electorate to which defendant was not
constitutionally entitled.” (Id. at pp. 1061-1062.) We find the analysis of Blakely
persuasive and reject defendant’s contention.
       Defendant also focuses on the term “offenses” in section 1170.126,
subdivision (e). It provides, in relevant part, that “[a]n inmate is eligible for resentencing
if: [¶] . . . [¶] (2) [t]he inmate’s current sentence was not imposed for any of the offenses
appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e)(2).)
Defendant points out that clause (iii) describes facts relating to an offense rather than an
                                              7
offense. He then argues that “when the electorate specified exclusion from eligibility for
resentencing if ‘[t]he inmate’s current sentence was . . . imposed for any [offense]
appearing in clause . . . (iii) . . . ,’ it could only have meant a sentence imposed on a
current offense where it was pled and proved that the defendant was armed or intended to
inflict great bodily injury during the commission of the offense.” We disagree.
       Section 667, subdivision (e)(2)(C)(iii) and section 1170.12, subdivision
(c)(2)(C)(iii) provide: “During 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.” Thus, the reference to “offenses” in section 1170.126,
subdivision (e)(2) is to the “current offense,” that is, the offense for which he or she is
currently serving an indeterminate sentence and does not mention that the facts relating to
that offense must have been pleaded and proven. As we stated in Chubbuck: “While
section 1170.12, subdivision (e)(2) ‘expressly cross-references “clauses (i) to (iii),
inclusive” of [sections] 667(e)(2)(C) and 1170.12(c)(2)(C), nothing in the language of
section 1170.126(e)(2) or of any of the other subdivisions of section 1170.126(e)(2)
governing an inmate’s petition for resentencing relief under the Reform Act references
the plead-and-prove language.’ (White, supra, 223 Cal.App.4th at pp. 526-527.)”
(Chubbuck, supra, 231 Cal.App.4th at p. 747.)
       Defendant next argues that “courts are obligated to construe any ambiguity in a
penal statute in a manner that avoids constitutional problems,” and thus “[j]udicial fact-
finding in the present case about the nature of the ‘current’ conviction is constitutionally
dubious . . . .” Chubbuck found no merit in this argument: “[W]e find no ambiguity as to
whether section 1170.126, subdivision (e)(2) incorporates the pleading and proof
requirements of section 1170.12, subdivision (c)(2)(C). As explained above, the Reform
Act explicitly distinguishes between the procedures applicable to resentencing and the
procedures applicable to defendants who are being sentenced for a new offense, and
section 1170.126, subdivision (e)(2) only ‘expressly cross-references “clauses (i) to (iii),
                                               8
inclusive” of [sections] 667(e)(2)(C) and 1170.12(c)(2)(C),’ not any other provisions of
those statutes. [Citation.]” (Chubbuck, supra, 231 Cal.App.4th at p. 747.) We agree
with Chubbuck on this point.
       Defendant also urges this court to apply “the rule of lenity” to support his
interpretation of section 1170.126, subdivision (e)(2). We reject this argument. As
Chubbuck concluded: “[T]he rule of lenity ‘applies “ ‘only if the court can do no more
than guess what the legislative body intended; there must be an egregious ambiguity and
uncertainty to justify invoking the rule.’ ” [Citation.]’ [Citation.] As stated above, we
find no ambiguity as to whether section 1170.126, subdivision (e)(2) incorporates the
pleading and proof requirements of section 1170.12, subdivision (c)(2)(C).” (Chubbuck,
supra, 231 Cal.App.4th at p. 748.)3


                                       V. Disposition
       The order is affirmed.




3
       Defendant also argues that the analysis in Blakely, supra, 225 Cal.App.4th 1042 is
flawed on a point not discussed in either Chubbuck, supra, 231 Cal.App.4th 737 or
White, supra, 223 Cal.App.4th 512. According to defendant, Blakely relied on “the
inclusion of ‘intent to inflict great bodily injury’ as indicative of no pleading and proof
requirement.” We need not consider this argument, because we have concluded that the
record of conviction established that defendant was armed with a deadly weapon when he
committed the current offense and thus was ineligible for resentencing. For the same
reason, we do not consider his contentions relating to the trial court’s finding that he
posed an unreasonable risk of danger to the public.
                                             9
                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Elia, Acting P. J.




______________________________
Bamattre-Manoukian, J.




                                  10
