Filed 5/19/15 P. v. Eaton CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C074520

         v.                                                                      (Super. Ct. No. 95F05466)

RUBEN EATON, JR.,

                   Defendant and Appellant.




         Defendant Ruben Eaton, Jr., filed a petition for recall and resentencing under
Penal Code section 1170.126.1 The trial court denied the petition, determining that
defendant is ineligible for resentencing because he was armed with a deadly weapon
during his most recent offense.




1   Undesignated statutory references are to the Penal Code.

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       Defendant now contends (1) he was entitled to an evidentiary hearing on his
petition for recall and resentencing , and (2) he is not ineligible for resentencing because
an arming allegation was not pleaded and proved in the underlying case.
       Finding no merit in defendant’s contentions, we will affirm the order denying the
petition for recall and resentencing.
                                        BACKGROUND
       We take the facts from the record of defendant’s most recent conviction.
(People v. Trujillo (2006) 40 Cal.4th 165, 180-181.) A police officer testified at trial that
he searched defendant’s pockets when he arrested him on June 7, 1995, discovering
several baggies containing methamphetamine, a pouch with a hypodermic syringe, and a
knife with a “five, almost a six-inch blade.” The officer said the blade poked out of
defendant’s pants pocket but was concealed by an oversized shirt. A jury found
defendant guilty of possessing methamphetamine and cocaine and also of violating
section 12020, subdivision (a), by “carrying concealed upon his person a dirk or dagger.”
The trial court instructed the jury that the words dirk and dagger are synonyms referring
to “any knife or other instrument with or without a handguard that is primarily designed
or constructed to be a stabbing instrument designed to inflict great bodily injury or
death.”
       The trial court determined that defendant had two prior felony convictions (for a
robbery in 1986 and for firing a weapon at a vehicle in 1992) and that his sentence was
subject to the “three strikes” provisions of sections 667 and 1170.12. The trial court
sentenced defendant to 25 years to life in prison.
       In early 2013, defendant filed a petition for recall and resentencing under the
Three Strikes Reform Act of 2012. The trial court denied the petition, determining that
defendant is ineligible for resentencing because he was armed with a deadly weapon
during his most recent offense. The trial court denied defendant’s motion for
reconsideration.

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                                        DISCUSSION
                                              I
       Defendant contends he was entitled to an evidentiary hearing on his petition for
recall and resentencing because his petition presented a prima facie case for resentencing.
       The Three Strikes Reform Act was approved by voters as Proposition 36 in
November 2012; it amended sections 667 and 1170.12 and added a new section
1170.126, changing the requirements for sentencing a third strike offender to an
indeterminate term of 25 years to life. (People v. Hicks (2014) 231 Cal.App.4th 275,
281-282.) It essentially “ ‘diluted the three strikes law by reserving the life sentence for
cases where the current crime is a serious or violent felony or the prosecutor has pled and
proved an enumerated disqualifying factor.’ ” (Ibid., quoting People v. Yearwood (2013)
213 Cal.App.4th 161, 167-168.) It also created a postconviction procedure to allow
discretionary resentencing for persons serving life sentences for crimes that were not
serious or violent -- so long as those persons were not otherwise disqualified in specified
ways. (Ibid.) Being armed with a deadly weapon during the crime or crimes for which a
petitioner was convicted is among the enumerated disqualifying factors. (§§ 1170.126,
subd. (e)(2), 667, subd. (e)(2)(C)(iii).)
       Upon receipt of a petition, the trial court must determine whether the petitioner is
eligible for resentencing. (§ 1170.126, subd. (f).) The denial of a petition is an
appealable order. (Teal v. Superior Court (2014) 60 Cal.4th 595.)
       Here, the trial court determined, based on the record, that defendant is not eligible
for resentencing because he was armed with a deadly weapon during the commission of
the most recent offenses. The trial court cited the jury instruction defining a dirk or
dagger as an instrument designed to inflict great bodily injury or death, along with the
jury’s conclusion that defendant was carrying such an instrument on his person when he
was arrested.



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       Defendant argues the determination as to whether he was armed with a deadly
weapon required a new evidentiary hearing. He cites rule 4.551(f) of the California Rules
of Court, which provides: “An evidentiary hearing is required if . . . there is a reasonable
likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to
relief depends on the resolution of an issue of fact.”
       According to defendant, section 1170.126 implicitly contemplates a prosecutor
putting on evidence of the disqualifying factor and the defendant objecting to the
admissibility of evidence and arguing its interpretation. Defendant cites a former version
of a Couzens and Bigelow practice guide for the proposition that once the petitioner
establishes that the felonies for which he was sentenced were nonviolent and nonserious,
prima facie eligibility has been established and a hearing is required. (Couzens &
Bigelow, Three Strikes Sentencing (June 2014) § 14:3.) But the practice guide is
regularly updated as new cases are published. The version at the time of this writing
states that a hearing is contemplated only if petitioner establishes (1) that he was
sentenced to life in prison for a nonserious and nonviolent felony, and (2) that he is not
disqualified by one of the enumerated statutory factors. (Ibid.) Section 1170.126 does
not require an evidentiary hearing to determine a fact that is unequivocally established in
the record. The trial court may determine eligibility based on the record. (People v.
Brimmer (2014) 230 Cal.App.4th 782, 805 (Brimmer); People v. Blakely (2014)
225 Cal.App.4th 1042, 1063 (Blakely).)
       In addition, defendant points to People v. White (2014) 223 Cal.App.4th 512, a
case in which a trial court, in reviewing a petition for recall and resentencing filed by a
defendant convicted for possession of a firearm, issued an order to show cause rather than
simply denying the petition. Although that procedure was not criticized on appeal, we do
not construe the appellate court’s silence on the subject as approval.
       Defendant claims he has a right to present evidence that he was not armed despite
the blade in his pocket. Among other things, he says the knife in his pocket may have

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been a hunting knife and not a “dirk or dagger.” He claims he should not have been
convicted of the crime and must have received ineffective assistance of counsel. But the
time for challenging the basis for his conviction on appeal has passed. (See Lackawanna
County Dist. Attorney v. Coss (2001) 532 U.S. 394, 403-404 [149 L.Ed.2d 608, 618]
[once a conviction is no longer open to direct or collateral attack because a defendant
either failed to appeal or did so unsuccessfully, the conviction is conclusively valid for
sentencing purposes].)
       Moreover, whether a person who possesses a weapon is “armed” was answered
long ago. “A defendant is armed if the defendant has the specified weapon available for
use, either offensively or defensively.” (People v. Bland (1995) 10 Cal.4th 991, 997,
italics omitted.) In cases involving felony drug possession, a defendant who keeps both a
weapon and illicit drugs in a place he controls is “ ‘armed . . . in the commission . . . of
[the drug offense].’ ” (Id. at p. 1006.)
       Here, the jury found that defendant carried drugs and the weapon at the time of his
arrest. No factual issue as to eligibility remained at the time of his petition for recall and
resentencing. Defendant was armed as a matter of law and no hearing was required to
determine that he was ineligible for resentencing under section 1170.126.
                                              II
       Defendant next contends he is not ineligible for resentencing because an arming
allegation was not pleaded and proved in the underlying case.
       There is no pleading and proof requirement in section 1170.126. (Brimmer, supra,
230 Cal.App.4th at pp. 802-803.) As we have explained, the trial court may determine
eligibility based on the record. (Id. at p. 805; Blakely, supra, 225 Cal.App.4th at
p. 1063.) That is what the trial court did in this case.
       Defendant cites People v. Pitto (2008) 43 Cal.4th 228, but that case does not assist
him. The Supreme Court reiterated in that case that the arming provisions in California
law were designed to deter and punish those who create dangerous situations in the

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course of committing crimes. (Id. at p. 236.) Having a weapon at hand to facilitate drug
crimes is sufficient to establish that a defendant was armed, even in the face of a cogent
argument that the defendant had a different purpose for carrying the weapon. (Id. at
p. 240.)
                                      DISPOSITION
       The order denying defendant’s petition for recall and resentencing is affirmed.



                                                        MAURO                 , J.


We concur:


      BUTZ                  , Acting P. J.


      DUARTE                , J.




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