Filed 4/28/16 P. v. Robancho 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F070455
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SC067623A)
                   v.

NORBERTO ROBANCHO,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
         Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-

*        Before Kane, Acting P.J., Detjen, J. and Peña, J.
                                     INTRODUCTION
       Appellant Norberto Robancho was sentenced in 1996 to a term of 25 years to life,
after suffering a strike conviction for being a felon in possession of a firearm. In 2014,
he petitioned for resentencing pursuant to Penal Code section 1170.126.1 Robancho
contended he was not disqualified from resentencing pursuant to section 1170.126,
subdivision (e)(1)–(3). The trial court denied the petition on the grounds Robancho was
statutorily ineligible. Robancho appealed. We affirm.
                    FACTUAL AND PROCEDURAL SUMMARY
       Robancho was convicted by a jury in 1996 of being a felon in possession of a
firearm, a violation of former section 12021, subdivision (a) (now § 29800, subd. (a)(1)).
The jury also found true the allegations that Robancho had suffered three prior strike
convictions and served one prior prison term. The trial court sentenced Robancho to a
term of 25 years to life, plus one year for the prison term prior.
       The probation report prepared in the 1996 case discloses that officers heard a
gunshot, spotted Robancho standing in the area from which they heard the gunshot and,
when officers approached, Robancho took off running. Robancho was apprehended and
officers found a .38-caliber gun with three live rounds, one spent casing, and two empty
chambers nearby.
       Officers determined Robancho was on parole. Robancho told the officers that he
had argued with his girlfriend and fired the gun into the air. When he spotted the officers
heading toward him, he became scared, threw the gun down, and ran.
       Robancho appealed his 1996 conviction, which was affirmed by this court in its
nonpublished opinion in case No. F027707. (People v. Robancho (July 10, 1998,
F027707) [nonpub. opn.].) The nonpublished opinion contains a brief recitation of the



1      References to code sections are to the Penal Code unless otherwise specified.


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underlying facts, including the admission that Robancho had been in possession of and
fired the weapon.
       On August 8, 2014, Robancho filed a petition for recall of sentence and
resentencing pursuant to section 1170.126. The moving papers admitted that Robancho
previously had been convicted of two counts of robbery in 1982 and a first degree
burglary in 1992. Robancho argued that his 1996 conviction for which he was serving
25 years to life, possession of a firearm by a felon, was a nonviolent, nonserious offense
that did not disqualify him from resentencing. The People filed opposition to the petition.
       The trial court held a hearing on the petition on October 28, 2014. The trial court
reviewed the petition, the People’s opposition, the preliminary hearing transcript, and this
court’s opinion in case No. F027707. The trial court denied the petition, finding that
Robancho “is not eligible in that he was armed with a firearm during the commission of
this offense.”
       On November 5, 2014, Robancho filed a notice of appeal of the denial of his
petition. Appellate counsel was appointed on March 9, 2015. The record was augmented
on April 28, 2015.
                                       DISCUSSION
       On May 22, 2015, appellate counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436. That same day, this court issued its letter to Robancho inviting
him to submit supplemental briefing. No supplemental brief was filed.
       In ruling on a section 1170.126 petition, the trial court makes factual findings
using the preponderance of the evidence standard. (Evid. Code, § 115.) The only
evidence before the trial court at the hearing on the petition was that Robancho had
admitted being in possession of and firing the weapon, which was set forth in the factual
summary in the opinion in case No. F027707.
       It is proper for a trial court to rely on the factual statements in the appellate
opinion issued in case No. F027707 in determining whether Robancho was armed during

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the commission of his felon-in-possession offense; it is part of the record. (People v.
Hicks (2014) 231 Cal.App.4th 275, 285–286.) The trial court properly makes factual
findings on whether a defendant was “armed with [a firearm]” for purposes of
section 1170.126. (People v. Elder (2014) 227 Cal.App.4th 1308, 1317.) The defendant
is “‘armed with a firearm’” and ineligible for relief under section 1170.126, if the
defendant had the firearm available “for offensive or defensive use.” (People v. Osuna
(2014) 225 Cal.App.4th 1020, 1029-1030.) Here, Robancho had the firearm available for
defensive or offensive use; he admitted firing the weapon and tossing it when officers
came after him.
       After an independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                     DISPOSITION
       The October 28, 2014, order denying the section 1170.126 petition is affirmed.




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