Filed 1/13/15 P. v. Williams CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064321

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD109253)

DARRYLE WILLIAMS,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

         Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Warren Williams, Deputy Attorneys General, for Plaintiff and

Respondent.

         In 1995 Darryle Williams was convicted of two offenses and, because the court

found true the allegations that Williams had been convicted of two prior offenses that
were serious or violent felony strikes within the meaning of Penal Code1 sections 667,

subdivisions (b) through (i), and 1170.12, the court sentenced Williams to an

indeterminate term of 25 years to life, plus one year for each of his prison prior

allegations found true. In 2013 Williams moved to recall his sentence pursuant to the

recently enacted Three Strikes Reform Act of 2012 (§ 1170.126 et seq., hereafter TSRA).

The court denied his petition, and this appeal followed.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. The Current Offenses and Sentence

       In 1995 Williams was convicted of one count of being a felon in possession of a

firearm (former § 12021, subd. (a)(1), see now § 29800, subd. (a)(1))2 and one count of

drawing or exhibiting a firearm (§ 417, subd. (a)(2)). In a bifurcated proceeding, the

court found true the allegations Williams had been convicted of three offenses for which

he served a term in state prison within the meaning of section 667.5, subdivision (b), and

that two of those offenses constituted serious or violent felony strikes within the meaning

of sections 667, subdivisions (b) through (i) and 1170.12. The court sentenced Williams

to an indeterminate term of 25 years to life, plus one year for each of his prior prison term

allegations found true.



1      All further statutory references are to the Penal Code unless otherwise specified.

2       For ease of reference, we hereafter refer to a conviction for felon in possession of
a firearm as a conviction under section 12021, subdivision (a).

                                              2
       B. The Recall Petition

       In 2012 the court provided Williams with appointed counsel to assist him with

possible further proceedings for recalling his sentence under the TSRA. However,

Williams moved under People v. Marsden (1970) 2 Cal.3d 118 for new counsel,

apparently because he was dissatisfied with his appointed counsel's view that Williams

did not meet the criteria for filing a petition for recall. The court denied the Marsden

motion after taking judicial notice that Williams's current conviction rendered him

ineligible for recall of his sentence because he used or was armed with a firearm in

connection with that 1995 conviction, and therefore appointed counsel was not

ineffective in not filing a petition for recall.

       In 2013, new counsel filed a petition seeking to recall Williams's sentence under

the TSRA. The petition argued his current offense (the 1995 conviction) did not bar him

from relief because (1) he was convicted of possessing a firearm and the TSRA

disqualifies an inmate from a recall only if he was "armed with" or "used" a firearm in

committing the current offense, and (2) he was convicted of the stand-alone offense of

possession of a weapon and the TSRA should be construed to disqualify an inmate only

when the current offense is a separate (or tethering) offense the inmate committed while

armed with or using the firearm. The petition argued that, because neither his current

offense nor his prior strike convictions disqualified him from resentencing under the

TSRA, the court should recall his sentence, find he was not currently dangerous, and

resentence Williams under the TSRA.



                                                   3
       The People opposed the petition to recall Williams's sentence, arguing he had not

prima facie shown he was qualified under the TSRA to be considered for resentencing.

The People argued that one of Williams prior strikes, a 1989 conviction for assault with

intent to commit rape (the prior offense), was a disqualifying offense under the provisions

of the TSRA because it was a sexually violent offense within the meaning of the TSRA.

The People also noted, because the prior strike conviction was itself a disqualifying

offense, it was unnecessary to elaborate on their opposition to his claim that the current

offense was not a disqualifying offense.

       The court, citing and agreeing with the People's claim that one of Williams's prior

strikes was a disqualifying offense, denied the petition. Williams timely appealed.

       C. The Competing Appellate Arguments

       On appeal, and in response to this court's request for supplemental briefing,3

Williams asserts the court erred when it denied his petition without holding a hearing on

his current dangerousness because there was no evidentiary basis for concluding he was

disqualified from consideration for resentencing under the TSRA. He argues there was

no evidentiary basis for concluding his prior offense of assault with intent to commit rape

was committed by force or violence for purposes of the type of prior offense that

disqualifies an inmate from resentencing under the TSRA. He also contends the court

3      Williams's counsel originally filed a brief in accordance with the procedures
outlined in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386
U.S. 738 and cited, as a possible claim, whether Williams was disqualified from relief
under the TSRA because of his 1989 conviction for assault with intent to commit rape,
and specifically whether that crime qualified as a sexually violent offense as defined by
Welfare and Institutions Code section 6600, subdivision (b), considering the entire record
of conviction.
                                              4
erred because Williams was not present at the hearing on whether he was disqualified,

and he argues he had a due process right to be present at the hearing. He contends these

errors were prejudicial under Chapman v. California (1967) 386 U.S. 18, or even under

the less rigorous standard of People v. Watson (1956) 46 Cal.2d 818, and therefore argues

the matter must be remanded for a hearing, at which he has the right to be present, to

determine whether he was disqualified from resentencing under the TSRA based on his

prior offense of assault with intent to commit rape.

       The People argue the court did not err when it found Williams's prior offense

constituted a disqualifying offense under the TSRA, and did not err when it held the

initial hearing on his petition without affording Williams the right to be present. More

importantly, the People argue that even if either (or both) of these constituted error, the

error was harmless even under the more rigorous harmless-beyond-a-reasonable-doubt

standard of Chapman because, under this court's recent decision in People v. White

(2014) 223 Cal.App.4th 512 (White), Williams's current conviction disqualified him from

recalling his sentence under the TSRA because he was convicted of possessing a firearm

and the record of conviction showed he was actually armed with a firearm when he

committed that offense.

                                              II

                                        ANALYSIS

       A. The TSRA Framework

       "On November 6, 2012, the voters approved Proposition 36, the Three Strikes

Reform Act of 2012, which amended sections 667 and 1170.12 and added section

                                              5
1170.126 (hereafter the Act). 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." (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)

       In addition to reforming three strikes sentencing for defendants convicted after the

effective date of the TSRA, the TSRA also added section 1170.126 to provide an avenue

for retroactive reform of existing three strikes sentences imposed before the effective date

of the TSRA. Section 1170.126 "provides a means whereby, under three specified

eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner

currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the

Three Strikes law for a third felony conviction that was not a serious or violent felony

may be eligible for resentencing as if he or she only had one prior serious or violent

felony conviction." (White, supra, 223 Cal.App.4th at p. 517.)

       Accordingly, the retroactive aspect of the TSRA permits an inmate to petition the

superior court for recall of his or her sentence and for resentencing as a second strike

offender. (§ 1170.126, subd. (b).) The inmate's petition must show he or she is prima

facie eligible for recall of sentence and resentencing by showing: (1) the inmate is

currently serving an indeterminate life sentence imposed under the pre-TSRA three

                                              6
strikes law for a commitment offense or offenses that are not serious and/or violent

felonies within the meaning of section 667, subdivision (c), or section 1192.7,

subdivision (c); (2) the prisoner's current sentence was not imposed for any offense set

forth in section 667, subdivision (e)(2)(C)(i) through (iii), or section 1170.12, subdivision

(c)(2)(C)(i) through (iii); and (3) the prisoner has no prior convictions for any offense set

forth in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision

(c)(2)(C)(iv). (§ 1170.126, subd. (e).) However, even if the inmate presents a prima

facie case demonstrating he or she is otherwise eligible for resentencing, the court may,

in its discretion, deny the petition if it concludes resentencing "would pose an

unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)

       It is reversible error for a trial court to grant a petition and to resentence an inmate

under the provisions of section 1170.126 when the record of conviction for the current

offense demonstrates, as a matter of law, that the inmate is statutorily ineligible for

resentencing. (See, e.g., People v. Brimmer (2014) 230 Cal.App.4th 782, 797-801, 805-

806 [reversing order granting petition and resentencing inmate where record of

conviction established inmate was convicted of possession of a firearm by a felon and

was armed with the firearm during the commission of that offense and therefore the

armed-with-a-firearm exclusion applied]; accord, People v. Superior Court (Martinez)

(2014) 225 Cal.App.4th 979, 989 [granting petition for writ of mandate where trial court

erred as a matter of law in finding inmate qualified for resentencing because, where

inmate does not satisfy eligibility criteria, trial court has "no power to do anything but

deny the petition for recall of sentence"].)

                                               7
       B. Analysis

       An inmate is statutorily ineligible for resentencing under section 1170.126 if the

inmate was "armed with a firearm," within the meaning of the exclusion set forth in

section 667, subdivision (e)(2)(C)(iii), or section 1170.12, subdivision (c)(2)(C)(iii),

when he or she committed the current offense. In a number of cases, the earliest of which

appears to be this court's decision in White, supra, 223 Cal.App.4th 512, the courts have

concluded that when, as here, the inmate's current three-strike sentence was based on his

or her conviction for being a felon in possession of a firearm under former section 12021,

subdivision (a), the inmate is ineligible for resentencing if the record of conviction also

shows the inmate "not only had a firearm 'in [his] possession or under [his] custody or

control' [but that] he also was personally armed with the firearm on that date because he

was carrying—and, thus, had ' "ready access" ' [citation] to—that firearm." (White, at

p. 525; accord, People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1317; People v.

Brimmer, supra, 230 Cal.App.4th at pp. 797-801, 805-806.)

       The record of conviction here, which includes this court's opinion affirming

Williams's 1995 convictions (see, e.g., People v. Guilford (2014) 228 Cal.App.4th 651,

659-662 [court may use prior opinion to show facts of underlying conviction establishes

ineligibility under TSRA]), supports the ruling that Williams was ineligible for

resentencing.4 The record of conviction shows that Williams's conviction for being a


4       It appears, from the trial court's ruling on his Marsden motion, that it believed
Williams's 1995 conviction rendered him ineligible for recall of his sentence because he
used or was armed with a firearm in connection with his 1995 conviction, even though
the trial court ultimately cited a different reason (i.e. that one of his prior strike
                                                 8
felon in possession of a firearm arose when he was involved in an automobile accident

with a woman. When the woman did not stop, Williams pursued her in his car until she

stopped at a red light. Williams then got out of his car, knocked hard on her window and,

when her passenger asked Williams what he was doing, he opened his jacket and

displayed the firearm. When the woman drove away, Williams followed them in his car

until she reached her apartment complex, where he again confronted her and displayed

the firearm to her as well as pointed it at a neighbor standing nearby. (People v. Williams

(Oct. 1, 1997, D024990) [nonpub. opn.], at pp. 3-5.) Thus, the record of conviction

shows Williams's conviction for being a felon in possession of a firearm involved an

offense in which Williams was (at a minimum)5 personally "armed with" the firearm in

connection with that offense because "he was carrying—and, thus, had ' "ready access" '

[citation] to—that firearm." (White, supra, 223 Cal.App.4th at p. 525.) Under analogous


convictions was a disqualifying offense) in its order finding Williams was ineligible.
Because, as an appellate court, "we review the correctness of the trial court's ruling, not
the reasons underlying it" (People v. Koontz (2002) 27 Cal.4th 1041, 1075-1076, fn. 4;
accord, Punsly v. Ho (2003) 105 Cal.App.4th 102, 113 ["A judgment or order correct in
theory will be affirmed, even where the trial court's given reasoning is erroneous."]), we
affirm the ruling here because Williams was ineligible based on the facts of his current
offense, and it is unnecessary to decide whether he was also ineligible for resentencing
based on one of prior offenses.

5      Indeed, the record of conviction also shows the jury found, beyond a reasonable
doubt, Williams also used the firearm on that date, because the jury convicted him of
violating section 417, subdivision (a)(2), which required the jury to find Williams had in
fact used the firearm by drawing or exhibiting it in a rude, angry or threatening manner.
(Cf. People v. Quinones (2014) 228 Cal.App.4th 1040, 1045 [affirming determination
the defendant was ineligible for resentencing based on armed with a firearm criteria
because "[h]ere we have an even stronger case than White; not only do the facts show
defendant was armed with a firearm, but the jury also found those facts beyond a
reasonable doubt"].)
                                             9
circumstances, the court in People v. Osuna (2014) 225 Cal.App.4th 1020 adhered to the

approach adopted in White and concluded that, when the inmate's current offense was

being a felon in possession of a firearm, "the literal language of the [TSRA] disqualifies

an inmate from resentencing if he or she was armed with a firearm during the unlawful

possession of that firearm" (id. at p. 1032), and found the facts shown by the opinion

affirming his conviction for being a felon in possession of a firearm demonstrated he was

in fact armed with a firearm during the unlawful possession of that firearm. (Id. at

pp. 1027, 1035, 1040.)

       Williams makes no effort on appeal either to distinguish White or to explain why

we should not adhere to the analysis of the courts in White, People v. Elder, supra, 227

Cal.App.4th 1308, People v. Brimmer, supra, 230 Cal.App.4th 782, and People v. Osuna,

supra, 225 Cal.App.4th 1020. We conclude the trial court correctly ruled Williams was

statutorily ineligible for a recall of his sentence under the TSRA.

                                      DISPOSITION

       The order is affirmed.




                                                                          McDONALD, J.
WE CONCUR:


McCONNELL, P. J.


HUFFMAN, J.



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