Filed 11/7/14 P. v. Goodwin CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067845
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F94519375)
                   v.

PATRICK GLENN GOODWIN,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Michael Satris, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan
P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Detjen, J., and Peña, J.
                                      PROCEEDINGS
       Appellant, Patrick Glenn Goodwin, was found guilty at the conclusion of a jury
trial on December 9, 1994, of being a felon in possession of a firearm (Pen. Code,
§ 12021, subd. (a) [subsequently reenacted as Pen. Code, § 29800, subd. (a)]).1 Because
appellant had two prior serious felony convictions within the meaning of the three strikes
law, the trial court sentenced him to a term of 25 years to life.
       On November 6, 2012, the electorate passed Proposition 36 which amended the
three strikes law. Appellant filed a petition to recall his sentence pursuant to the amended
provisions of sections 667, 1170.12, and 1170.126 (hereafter the Act). The trial court
summarily denied appellant’s petition on August 1, 2013. Appellant contends the trial
court erred in denying his petition. We disagree and affirm the trial court’s ruling.
                                           FACTS
       At 9:00 p.m. on September 4, 1994, Fresno Police Officers Carl McKnight and
David McCrery were on patrol and responded to a disturbance call at an apartment
complex in central Fresno.2 The officers were met by several people outside the
complex. Flora Perez told the officers she had seen appellant in the area with a handgun
and he threatened to kill Perez’s dog. Perez described appellant as a Black male by the
name of Patrick who lived on the second floor of the complex above Perez’s apartment.
       The dog had apparently growled at appellant and appellant threatened Perez,
telling her he was going to shoot the dog. Other individuals told the officers appellant



1      All statutory references are to the Penal Code.
2       We granted the People’s motion, over appellant’s objection, to take judicial notice
of this court’s opinion in appellant’s original appeal in case No. F023071. The facts are
derived from our opinion. We note that in appellant’s original petition to recall his
sentence before the trial court, appellant requested the trial court to take judicial notice of
the entire court file from his case.


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lived on the second floor, was crazy, always ran around with a gun, and threatened to kill
the dog for no reason.
       The officers walked to the apartment pointed out by the residents and met
appellant in the hallway. Appellant complied with officers, identifying himself and
acknowledging that he was on parole for kidnapping and robbery. Appellant told the
officers he did not have a gun. McKnight called appellant’s parole agent and appellant
gave the officers permission to search his apartment.
       Appellant’s wife and small child were in the apartment. The apartment had two
bedrooms. McKnight searched through a cabinet containing men’s clothes and men’s
underwear next to the bed in the first bedroom. McKnight found a loaded .38-caliber
Colt revolver in the cabinet. The closet contained jogging clothes consistent with
appellant’s height and build. Appellant’s identification card was also found in the closet.
       After he was arrested and while he was being escorted to the patrol car, appellant
admitted to McKnight that the gun was his. Appellant’s parole agent testified that when
he conducted parole searches of appellant’s apartment, appellant and his wife always
slept in the bedroom where the evidence was found. Appellant waived his Miranda3
rights while he was in jail and told his parole agent that he had recently switched
bedrooms and the gun belonged to relatives who had been using the bedroom. Appellant,
however, would not identify the relatives.
       The night of the incident, appellant went to the apartment of another resident in
the complex, Kari Kirkland. Kirkland testified that appellant first asked Kirkland about
her roommate, but then asked her if she knew where the dog lived. Kirkland said she
used to own the dog but gave it to a friend across the street. Appellant pulled the



3      Miranda v. Arizona (1966) 384 U.S. 436.


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revolver out of his waistband, and among other things, said he was going to take care of
the dog.
                        ELIGIBILITY FOR RESENTENCING
       Appellant contends the trial court erred in denying his petition for resentencing.
Appellant argues that the statute specifically ameliorates one convicted of being a felon
in possession of a firearm, his conviction of firearm use requires that this offense be
“tethered” to another felony, he did not use a firearm, possession of a firearm is distinct
from arming oneself with or using a firearm, there was no evidentiary proof appellant
used a gun, and the rules of statutory construction entitle appellant to resentencing under
section 1170.126.
       We agree with respondent’s initial contention that appellant’s current claim is
cognizable on appeal. We further agree with respondent that appellant was armed with a
firearm when he was arrested for a violation of section 12021, subdivision (a), and the
terms of the Act preclude appellant from the resentencing relief he seeks.
       In April 2014, this court published four cases germane to the issues raised by
appellant: People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011
(Cervantes); People v. Martinez (2014) 225 Cal.App.4th 979, 984-985 (Martinez);
People v. Osuna (2014) 225 Cal.App.4th 1020 (Osuna); and People v. Blakely (2014)
225 Cal.App.4th 1042 (Blakely). The California Supreme Court denied review in all of
these cases on July 9, 2014.
       In Blakely, we held that a defendant convicted of being a felon in possession of a
firearm is not automatically disqualified from resentencing because of that conviction.
Such a defendant is disqualified for resentencing only if he or she had the firearm
available for offensive or defensive use. We further held in Blakely that the disqualifying




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factors need not be pled and proved to a trier of fact beyond a reasonable doubt.4
(Blakely, supra, 225 Cal.App.4th at pp. 1048, 1056-1063.) In Cervantes and Martinez,
we held an inmate may be barred from resentencing and is armed with a firearm even if
he or she was not carrying a firearm on his or her person. (Cervantes, supra, 225
Cal.App.4th at pp. 1011-1018; Martinez, supra, 225 Cal.App.4th at pp. 984-985, 989-
995.)
        In Osuna, we held that (1) the disqualifying factors need not be pled and proven to
a jury beyond a reasonable doubt; (2) where there are facts in the record of conviction
showing the inmate was armed with a firearm─meaning it was available for immediate
offensive or defensive use─during the commission of the inmate’s current offense, the
inmate is disqualified from resentencing under the Act even though he or she was
convicted of possessing the firearm and not of being armed with it; and (3) being armed
with a firearm during the commission of the current offense for the purposes of the Act
does not require that the possession be “tethered” to or have some “facilitative nexus” to
an underlying felony. (Osuna, supra, 225 Cal.App.4th at pp. 1026-1040.)
        Although appellant was not per se prohibited under the Act from making a motion
for resentencing, the fact that appellant had a firearm available in his bedroom for
offensive or defensive use at the time of his arrest meant appellant was armed with a
firearm. This being so, appellant was disqualified from consideration for resentencing
pursuant to the Act.5 In addition to what the investigating officers found in appellant’s



4      In addition to applying standard principles of statutory construction in our analysis
of section 1170.126 in Blakely, we also considered the rule of lenity which appellant
argues is operative here. (Blakely, supra, 225 Cal.App.4th at pp. 1053-1054.)
5     The prosecutor did not have to plead and prove the underlying facts of appellant’s
conviction beyond a reasonable doubt. (Blakely, supra, 225 Cal.App.4th at pp. 1061-
1063; Osuna, supra, 225 Cal.App.4th at pp. 1026-1040.)


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apartment bedroom, multiple witnesses saw appellant walking around with the firearm,
brandishing it, and threatening to kill Perez’s dog with it.
       Appellant’s statutory construction arguments were considered and rejected in
Blakely, Osuna, Cervantes, and Martinez. (Blakely, supra, 225 Cal.App.4th at pp. 1056-
1063; Osuna, supra, 225 Cal.App.4th at pp. 1026-1040.) Furthermore, the probation
officer’s report was a sufficient basis for the trial court to deny the motion. (Blakely,
supra, 225 Cal.App.4th at pp. 1061-1063; Osuna, supra, 225 Cal.App.4th at p. 1040;
Cervantes, supra, 225 Cal.App.4th at pp. 1011-1018; Martinez, supra, 225 Cal.App.4th
at pp. 989-995.)
       The trial court concluded that appellant was ineligible for resentencing under the
Act. The trial court’s ruling is supported by the record. Following our rulings in the
above cited cases, we find no error in the trial court’s ruling.
                                      DISPOSITION
       The trial court’s postjudgment order denying appellant’s petition for resentencing
pursuant to Penal Code section 1170.126 is affirmed.




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