Filed 11/27/13 P. v. Salazar CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058098

v.                                                                       (Super.Ct.No. FWV024654)

JOEY PHILLIP SALAZAR,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Michael Pulos,

Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Joey Phillip Salazar appeals from an order denying his

petition for recall of his indeterminate life term under Penal Code section 1170.126,

subdivision (f).1 His sole issue on appeal is whether being armed with a firearm

constitutes “using a firearm” to make a violation of Health and Safety Code section

11370.1, subdivision (a), into a “strike” so as to preclude recall and reconsideration of

defendant’s sentence pursuant to Penal Code section 1170.126.2I

                    FACTUAL AND PROCEDURAL BACKGROUND3

       About 9:00 p.m. on February 15, 2002, Upland Police Officer Nicholas Baclit was

on patrol on Randy Street, a neighborhood known for gang problems. From his position,

Officer Baclit observed a green Ford Focus, driven by defendant, driving with its high


       1  We note that the California Supreme Court has granted review in cases that have
found that the trial court’s order on a postjudgment petition pursuant to section 1170.126
is a nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308,
review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941,
review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2),
Cal. Rules of Court.) Even if we were to conclude it was a nonappealable order, we
could consider, in the interest of judicial economy and because of uncertainty in the law,
that defendant’s appeal is a petition for writ of habeas corpus or petition for writ of
mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928 fn. 4 [treating appeal from
nonappealable order as petition for writ of habeas corpus]; Drum v. Superior Court
(2006) 139 Cal.App.4th 845, 853 [Fourth Dist., Div. Two] [treating appeal as petition for
writ of mandate due to uncertainty in the law].) In People v. Leggett (2013) 219
Cal.App.4th 846, 854, the appellate court expressed that when a trial court must
determine whether the prior convictions qualify under the resentencing provision, such
issue is appealable. We will review defendant’s appeal.

       2   All future statutory references are to the Penal Code unless otherwise stated.

       3 The factual and part of the procedural background is taken from this court’s
opinion in defendant’s prior appeal. (People v. Salazar (Dec. 15, 2006, E039146)
[nonpub. opn.] (Salazar I).)


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beams on. Officer Baclit followed defendant as he drove into a dead end, made a U-turn,

and turned back eastward. He then made a quick left turn onto Fairway Avenue, then

another left turn into an alley. The car eventually came to an abrupt stop, and defendant

and his unidentified passenger got out of the car and ran. Officer Baclit chased defendant

while yelling, “police,” and “stop.” Defendant failed to obey the officer’s orders and

continued to run until tackled by the officer. Both fell to the ground. Defendant got up

and continued running. Officer Baclit continued chasing defendant, identifying himself

as an Upland police officer and telling defendant to stop. Defendant did not stop. Officer

Baclit tackled defendant a second time and held him at gunpoint until backup arrived.

       Defendant was eventually handcuffed, searched, and taken into custody. In

defendant’s left front pocket was a large baggie containing five small baggies of

methamphetamine. The five baggies were later examined, and it was determined they

contained methamphetamine weighing 6.17, 0.75, 0.83, 0.22, and 3.28 grams,

respectively. Cash in the amount of $3,301 was also found in defendant’s left front

pocket. $2,600 was in $100 bills; the rest was in $50 bills and one $1 bill.

       A search of the car revealed that it was rented in defendant’s name. In addition, a

double-barreled 20-gauge shotgun in an unzipped camouflage case was located on the

rear seat of the car. This was within reach of the driver. The shotgun was loaded and

operable. A loaded .22-caliber Ruger handgun was also found under the right front

passenger seat. Officer Baclit noted that the handgun was visible when standing outside

of the car with the door shut and window closed.




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       Officer Baclit opined, based on the quantity of the methamphetamine, the

packaging of the methamphetamine, the weapons found in the car, and the totality of the

circumstances, that the methamphetamine was possessed for sale. Upland Police Officer

James Potts, a member of the narcotics task force, opined that defendant possessed the

methamphetamine with the sole intent of selling it. Officer Potts explained that the

typical user would have his methamphetamine in one bag, not in different bags of

different sizes. Officer Potts further noted that lack of pay/owe sheets did not affect his

opinion, as sellers rarely keep pay/owe sheets on their person or in their vehicle and that

some dealers do not extend credit. Officer Potts also observed that drug dealers often

possess loaded, operable firearms when they are dealing for protection of their money

and drugs. (Salazar I, supra, E039146.)

       Following a jury trial in 2005, defendant was convicted of possession of a firearm

by a felon (Pen. Code, § 12021, subd. (a)(1), count 1) and possession of a controlled

substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a), count

3).4 The trial court thereafter found true that defendant had sustained two prior serious

and violent felony convictions within the meaning of Penal Code section 667,

subdivisions (b) through (i), and two prior prison terms within the meaning of Penal Code

section 667.5, subdivision (b). As a result, defendant was sentenced to a total term of 27

years to life as follows: 25 years to life on count 1, a concurrent term of 25 years to life

       4  The jury was unable to reach a verdict on counts 2, 4, and 5, possession of a
handgun by a felon, possession of a controlled substance while armed with a handgun,
and possession of a controlled substance for sale, respectively. The trial court declared a
mistrial as to these counts, and they were later dismissed.


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on count 3, and two consecutive terms of one year each for the two prior prison term

enhancements. (Salazar I, supra, E039146.)

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act of 2012. (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,

2012).) Among other things, this ballot measure enacted section 1170.126, which

permits persons currently serving an indeterminate life term under the three strikes law to

file a petition in the sentencing court, seeking to be resentenced to a determinate term as a

second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that

the defendant meets the criteria of section 1170.126, subdivision (e), the court may

resentence the defendant. (§ 1170.126, subds. (f), (g).)

       On December 6, 2012, defendant filed in pro. per. a petition for resentencing

under section 1170.126. The trial court denied the petition on December 26, 2012,

because defendant did not satisfy the criteria set forth in section 1170.126, and found

defendant ineligible based on his current commitment offense for possession of a

controlled substance while armed with a loaded, operable firearm. (§§ 667,

subd. (e)(2)(C)(iii), 1170.126, subd. (e)(2)). Defendant filed a timely notice of appeal.

                                              III

                                        DISCUSSION

       Defendant argues that the trial court’s denial of his petition to recall his sentence

was erroneous as a matter of law because being armed with a firearm when committing

an offense is not a serious or violent felony under Penal Code sections 667.5,

subdivision (c), or 1192.7. Although possession of a controlled substance while armed


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with a firearm in violation of Health and Safety Code section 11370.1 is not a serious or

violent felony as defined in Penal Code sections 667.5, subdivision (c), and 1192.7,

defendant was still ineligible for resentencing under Penal Code section 1170.126,

subdivision (e)(2).

       Proposition 36 amended the three strikes statutes (§§ 667, 1170.12) to require that

before a defendant may be sentenced to an indeterminate life term in prison under the

three strikes law, the new felony (the commitment offense) must generally qualify as a

serious or violent felony. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2), (C).) An

exception to this general rule exists, among others, where the prosecution has pled and

proved the defendant used a firearm in the commission of the current offense, was armed

with a firearm or deadly weapon, or intended to cause great bodily injury to another.

(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) If the prosecution pleads and

proves this exception exists, the defendant must be sentenced under the three strikes law.

       Proposition 36 also added section 1170.126, which applies exclusively to those

“persons presently serving an indeterminate term of imprisonment pursuant to

paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of

Section 1170.12, whose sentence under this act would not have been an indeterminate life

sentence.” (§ 1170.126, subd. (a).) Section 1170.126 sets forth a procedure through

which certain prisoners can petition the court for resentencing. Such a person may file a

petition to recall his or her sentence and be sentenced as a second strike offender.

(§ 1170.126, subd. (b).) An inmate is eligible for such resentencing if none of his or her

commitment offenses constitute serious or violent felonies and none of enumerated


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factors disqualifying a defendant for resentencing under Proposition 36 apply.

(§ 1170.126, subd. (e).)

       Section 1170.126, subdivision (e)(1), provides that a defendant is eligible for

resentencing if he or she is serving an indeterminate term of life imprisonment imposed

pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section

1170.12 “for a conviction of a felony or felonies that are not defined as serious and/or

violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.”

(§ 1170.126, subd. (e)(1).) We agree with defendant that his current commitment felony

offense of possession of a controlled substance while armed with a loaded, operable

firearm is not a serious or violent felony under sections 667.5, subdivision (c), or 1192.7,

subdivision (c). However, the inquiry does not end with whether or not the current

conviction is a serious or violent felony.

       Section 1170.126, subdivision (e)(2), provides, as pertinent here, that a defendant

is eligible for resentencing if “[t]he inmate’s current sentence was not 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), italics added.) Being armed with a firearm during the commission of a

current offense is listed in section 667, subdivision (e)(2)(C)(iii), and section 1170.12,

subdivision (c)(2)(C)(iii). It is undisputed here that defendant was armed with a loaded,

operable firearm during the commission of his current commitment offense of possession

of methamphetamine. As such, under section 1170.126, subdivision (e)(2), defendant


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was ineligible for resentencing based on the fact that defendant was armed with a firearm

during the commission of the current felony offense.

       Defendant, however, argues that possession of a controlled substance while armed

with a firearm under Health and Safety Code section 11370.1, subdivision (a), is not a

violent felony listed in section 667.5 or a serious felony enumerated in section 1192.7

and, therefore, the trial court erred as a matter of law in concluding he was ineligible to

have his three strikes sentence recalled. He asserts that because his petition to recall his

sentence complied with section 1170.126, subdivision (e)(1), and his current offense was

neither a serious nor violent felony, the trial court’s conclusion that he was ineligible “for

recall of the sentence based upon a violation of Health and Safety Code section 11370.1

because he had been armed with a firearm was erroneous as a matter of law.”

Defendant’s argument lacks merit and fails to take into account the criteria set forth in

section 1170.126, subdivision (e)(2). An inmate is eligible for such resentencing if none

of his or her commitment offenses constitute serious or violent felonies and none of the

enumerated factors disqualifying a defendant for resentencing under Proposition 36

apply. (§ 1170.126, subd. (e).)

       The threshold eligibility determination is made by applying express objective

criteria to information set forth in the petition filed by the inmate: Is the inmate currently

serving a third strike life term? Is that life term for conviction of a felony or felonies that

are not defined as serious or violent felonies by sections 667.5, subdivision (c), or 1192.7,

subdivision (c)? If the current felony is not a serious or violent offense, was the current

sentence imposed for any of the offenses listed in sections 667, subdivision (e)(2)(C)(i)–


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(iii), or 1170.12, subdivision (c)(2)(C)(i)–(iii)? Are any of the inmate’s prior convictions

for felonies listed in sections 667, subdivision (e)(2)(C)(iv), or 1170.12,

subdivision (c)(2)(C)(iv)?

       Hence, even if a defendant can show that his or her current felony is not a serious

or violent offense, as in this case, defendant still needs to satisfy the criteria set forth in

subdivision (e)(2) of section 1170.126. Here, defendant’s current sentence was imposed

under sections 667, subdivision (e)(2)(C)(iii), and 1170.12, subdivision (c)(2)(C)(iii),

because the prosecution pled and proved defendant was armed with a firearm when he

committed the crime of possession of methamphetamine. And, as previously explained,

Proposition 36’s amendment to the three strikes statutes to require the commitment

offense be a serious or violent felony does not apply in cases where the prosecution has

pled and proved the defendant was armed with a firearm or deadly weapon. (§§ 667,

subds. (e)(2)(A), (C)(iii), 1170.12, subds. (c)(2), (C)(iii).)

       Accordingly, we find the trial court did not err in finding defendant was ineligible

for resentencing under section 1170.126.




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                                     II

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                               RAMIREZ
                                                         P. J.


We concur:


RICHLI
                       J.


CODRINGTON
                       J.




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