Filed 11/26/14 P. v. Mamea 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F067261
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF95545799)
                   v.

JOHN MAFUA MAMEA,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.

         Elaine Forrester, 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, Peter H. Smith and Daniel B.
Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



         *Before Detjen, Acting P.J., Franson, J. and Peña, J.
                                     INTRODUCTION

               “On November 6, 2012, the voters approved Proposition 36, the
       Three Strikes Reform Act of 2012, which amended [Penal Code1] sections
       667 and 1170.12 and added section 1170.126 (hereafter the Act [or
       Proposition 36]). The Act changes the requirements for sentencing a third
       strike offender to an indeterminate term of 25 years to life imprisonment.
       Under the original version of the three strikes law a recidivist with two or
       more prior strikes who is convicted of any new felony is subject to an
       indeterminate life sentence. The Act diluted the three strikes law by
       reserving the life sentence for cases where the current crime is a serious or
       violent felony or the prosecution has pled and proved an enumerated
       disqualifying factor. In all other cases, the recidivist will be sentenced as a
       second strike offender. (§§ 667, 1170.12.) The 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.)” (People v.
       Yearwood (2013) 213 Cal.App.4th 161, 167–168.)
       Defendant John Mamea, an inmate serving a term of 52 years to life in prison
following his conviction of three felonies that were neither violent nor serious, filed a
petition to recall his sentence under the Act. The superior court determined defendant
was ineligible for resentencing and denied the petition. Defendant now appeals.
       We hold: (1) a court’s finding that a defendant is not eligible for resentencing is
appealable; (2) a person convicted of illegally possessing a firearm is not automatically
disqualified from resentencing by virtue of such a conviction; instead, the record of
conviction must be examined to ascertain the existence of a disqualifying factor; and (3)
disqualifying factors need not be pled and proved to a jury beyond a reasonable doubt.
While the trial court here erroneously found automatic disqualification, the record on
appeal establishes defendant was armed during the commission of at least one of his
current offenses. Hence, we will affirm the denial of defendant’s petition.


       1Further statutory references are to the Penal Code unless otherwise indicated.



                                               2.
                        FACTS AND PROCEDURAL HISTORY2
       In the early morning of August 14, 1995, Fresno City College Police Officer Kirk
Bryant saw a red Pontiac Grand Prix illegally parked on campus. As Bryant approached
the Pontiac, it suddenly accelerated and sped away. Officer Bryant pursued the vehicle as
it reached speeds of 70 miles per hour, ran three stop lights, and crashed into a power
pole. Bryant identified defendant as the driver, having observed him get out of the car,
run in front of Bryant’s patrol vehicle, and flee the scene. During a related search of
defendant’s car, the officer found a loaded nine-millimeter handgun partially concealed
under the driver’s side floor mat, several live nine-millimeter rounds on the front
passenger’s floorboard, and a wallet containing a calling card and a motel receipt issued
in defendant’s name. A silencer was found in the trunk.
       On August 17, 1995, defendant’s parole officer and other law enforcement
personnel went to the motel where defendant was staying and arrested him as he exited
his room. During a search of defendant’s room, the officers found a .38-caliber revolver.
       Following a jury trial, defendant was convicted of two counts of being a felon in
possession of a firearm (former § 12021, subd. (a)(1)),3 one count of being a felon in
possession of a firearm in a vehicle (former § 12025, subds. (a)(1), (b)(1)), resisting arrest
(§ 148, subd. (a)), and evading a police officer (Veh. Code, § 2800.1). The trial court
found defendant had two prior convictions within the meaning of the three strikes law
and he had served two prior prison terms. Defendant was sentenced to consecutive 25



       2Plaintiff filed an unopposed motion for judicial notice, asking this court to take judicial
notice of its own prior record as relevant to the instant appeal. Thus, we take judicial notice of
our prior decision in People v. Mamea (Aug. 6, 1997, F025939 [nonpub. opn.].) (Evid. Code,
§ 452, subd. (d).)
       3Former section 12021, subdivision (a)(1) was repealed as of January 1, 2012, but its
provisions were reenacted without substantive change as section 29800, subdivision (a)(1).
(People v. Sanders (2012) 55 Cal.4th 731, 734, fn. 2.) Because defendant was convicted under
the repealed statute, which was only renumbered without substantive change, we refer to former
section 12021 throughout this opinion for clarity and convenience.


                                                 3.
years to life terms, plus an additional two years for the prior prison terms, for a total term
of 52 years to life. We affirmed the convictions and sentence on August 6, 1997.
       On November 28, 2012, defendant filed a pro se petition for recall of his sentence
under the Act. The court appointed counsel for defendant, set the matter for hearing, and
directed the People to file any brief two weeks prior to the date of the hearing. The
People opposed defendant’s petition, arguing defendant was armed during the
commission of his current offense, thereby disqualifying him from consideration under
the terms of the Act. Defendant filed a supplemental brief in support of his petition on
April 4, 2013.
       On May 10, 2013, the court ruled defendant was statutorily ineligible for
resentencing because of his offense of conviction. The court found that section 1170.126
was poorly drafted. In order to interpret inconsistent and ambiguous language therein,
the court considered the electorate’s intent and concluded the intent was to exclude from
consideration any individual petitioning for resentencing for any weapon-related felony.
This appeal followed.4
                                       DISCUSSION
       Defendant Was Not Eligible for Resentencing Because He Was “Armed
            with a Firearm” During Commission of His Current Offense
       An inmate is ineligible for resentencing under the Act if his or her current sentence
was “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).) Thus, an inmate is disqualified from resentencing if, inter
alia, “[d]uring the commission of the current offense, the defendant used a firearm, was



       4The California Supreme Court confirmed the denial of a petition for resentencing is an
appealable order with its recent holding in Teal v. Superior Court (Nov. 6, 2014, S211708) ___
Cal.4th ___ [2014 Cal. LEXIS 10481; 2014 WL 5739048].


                                               4.
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).)
       As this court has recently held, a defendant is not automatically disqualified for
purposes of resentencing under the Act by his or her current conviction for being a felon
in possession of a firearm. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1051-1057.)
Rather, as relevant here, eligibility for resentencing turns on whether the record of
conviction establishes the defendant was armed during the commission of the current
offense. (Id. at p. 1052.) In construing the intent of the voters in enacting the Act, we
concluded that offenders who used or were armed with a firearm during the commission
of their current offense were considered to be a group of convicted persons that the
electorate had no intention of extending the resentencing benefit to. (Id. at pp. 1053-
1057; see People v. Osuna (2014) 225 Cal.App.4th 1020, 1034-1038; People v. Superior
Court (Cervantes) 225 Cal.App.4th 1007, 1014-1018; People v. Superior Court
(Martinez) (2014) 225 Cal.App.4th 979, 990-995.) In Blakely, we stated:

       “It is clear the electorate’s intent was not to throw open the prison doors to
       all third strike offenders whose current convictions were not for serious or
       violent felonies, but only to those who were perceived as nondangerous or
       posing little or no risk to the public. A felon who has been convicted of
       two or more serious and/or violent felonies in the past, and most recently
       had a firearm readily available for use, simply does not pose little or no risk
       to the public.” (People v. Blakely, supra, 225 Cal.App.4th at p. 1057;
       People v. Osuna, supra, at p. 1038 [same]; see People v. Superior Court
       (Cervantes), supra, at p. 1018 [“We do not view the electorate as deeming
       someone with a firearm available for use, either offensively or defensively,
       in the commission of a felony to be nondangerous or to pose little risk to
       the public”].)
       Here, then, we consider whether defendant was armed during the commission of
his current offense. To that end, we will turn to an examination of the record of
conviction, which properly includes our prior appellate opinion following the direct
appeal of defendant’s current offenses. (People v. Woodell (1998) 17 Cal.4th 448, 451
[“[T]he record of the conviction is not limited to the trial court record but extends to the



                                             5.
appellate court record, including the appellate opinion”]; see People v. Guilford (2014)
228 Cal.App.4th 651, 660-661.)
       Initially, we note the meaning of being armed for these purposes. “‘[A]rmed with
a firearm,’ as that phrase is used in the Act, [means] having a firearm available for
offensive or defensive use” during the commission of the current offense. (People v.
Blakely, supra, 225 Cal.App.4th at p. 1052; People v. Osuna, supra, 225 Cal.App.4th at
pp. 1029-1030; see People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at
pp. 1015-1016; see also People v. Superior Court (Martinez), supra, 225 Cal.App.4th at
pp. 989-990.)
       The trial testimony recited in our 1997 opinion following his direct appeal reveals
defendant was approached by a law enforcement officer after having been illegally
parked on the Fresno City College campus. Before he could be contacted however,
defendant sped away in his vehicle, reaching speeds of 70 miles per hour and running
stop lights, before crashing into a power pole. Although he was pursued by law
enforcement, defendant successfully fled the scene. As the officer later searched
defendant’s vehicle, he “found a loaded nine-millimeter handgun partially concealed
under the driver’s side floor mat ….” A search of defendant’s motel room several days
later, carried out after defendant left the room and was arrested without incident, revealed
a .38-caliber revolver. Accordingly, the record establishes defendant had a firearm
available for offensive or defensive use during the commission of his current offense or
offenses.5 On August 14, 1995, defendant had available to him, for offensive or
defensive use, the nine-millimeter handgun that had been partially concealed under the
driver’s side floor mat of his vehicle just prior to his having been approached by Officer

       5We caution that here, the facts in the appellate opinion were derived from the evidence
presented at trial. Although part of the record of conviction, the appellate opinion will not
necessarily be relevant or admissible in its entirety. (People v. Woodell, supra, 17 Cal.4th at pp.
457–460.) This may be especially true where the facts recited therein have their source in the
probation officer’s report rather than the trial evidence. (See People v. Trujillo (2006) 40 Cal.4th
165, 180–181; People v. Reed (1996) 13 Cal.4th 217, 220, 230–231.)


                                                 6.
Bryant and during his subsequent flight. Although perhaps a closer question, we find that
prior to having exited his motel room on August 17, 1995, defendant had available to
him, for offensive or defensive use, a 38-caliber revolver. Therefore, defendant was
armed for purposes of the Act for both convictions of felon in possession of a firearm.
Thus, defendant is ineligible for resentencing.
       As to defendant’s assertion that the use or arming exception “must be pled and
proved as an enhancement or tethered to the underlying offense,” we have also recently
addressed this issue.
       In both Blakely and Osuna, we found that disqualifying factors need not be pled or
proven to a trier of fact beyond a reasonable doubt. In both cases, we explained the
language of section 1170.126 does not impose a plead-and-prove requirement “in
connection with the procedure for determining whether an inmate already sentenced as a
third strike offender is eligible for resentencing as a second strike offender. [Citation.]”
(People v. Blakely, supra, 225 Cal.App.4th at p. 1059, italics omitted; People v. Osuna,
supra, 225 Cal.App.4th at p. 1033.) Nor did the electorate intend such a requirement.
(Blakely, supra, at p. 1059.) Other courts have similarly held. (See, e.g., People v. Elder
(2014) 227 Cal.App.4th 1308, 1314-1315; People v. Bradford (2014) 227 Cal.App.4th
1322, 1332-1134; People v. White (2014) 223 Cal.App.4th 512, 526-527.)
       Further, we have also recently determined, contrary to defendant’s assertion, that
“Apprendi[ v. New Jersey (2000) 530 U.S. 466] and its progeny do not apply to a
determination of eligibility for resentencing under the Act.” (People v. Blakely, supra,
225 Cal.App.4th at p. 1060; People v. Osuna, supra, 225 Cal.App.4th at p. 1039; see
People v Bradford, supra, 227 Cal.App.4th at pp. 1334-1336.) We explained that
“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.” (People v. Blakely, supra, at p. 1061; People v. Osuna,
supra, at p. 1040.)



                                              7.
       In sum, while a defendant who has suffered a conviction for being a felon in
possession of a firearm is not automatically disqualified from resentencing under the Act,
in this case, the record of conviction reveals defendant was armed during the commission
of that offense and, hence, he is disqualified and not eligible to be resentenced as a
second strike offender.
                                      DISPOSITION
       The judgment is affirmed.




                                             8.
