P. v. Rodriguez

Filed 12/8/16 P. v. Rodriguez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
HERACLIO SANCHEZ RODRIGUEZ,
Defendant and Appellant.
B266674
(Los Angeles County
Super. Ct. No. KA037343)
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Suzan E. Hier, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Noah P. Hill and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.

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This appeal requires us to determine what evidence a trial
court may consider in finding a defendant ineligible for
resentencing under the Three Strikes Reform Act of 2012
(Proposition 36 or the Act). In 1998, a jury found appellant
Heraclio Sanchez Rodriguez guilty of possession of a firearm by
a felon in violation of former Penal Code section 12021,
subdivision (a)(1).1 The trial court sentenced him to 25 years to
life in prison under the Three Strikes law. On July 24, 2013,
appellant filed a petition for recall of sentence pursuant to
section 1170.126. The trial court denied with prejudice the
petition, finding appellant ineligible for relief because he was
armed with a firearm during the commission of the offense. This
appeal followed. We affirm.
FACTUAL SUMMARY
The information filed November 4, 1997, charged appellant
with eight felony offenses. Count 1 alleged assault with a firearm
on or about August 9, 1997, in violation of section 245,
subdivision (a)(2). Counts 2 and 3 each alleged assault with a
deadly weapon on or about August 9, 1997, in violation of
section 245, subdivision (a)(1). Count 4 alleged possession of a
firearm by a felon on or about August 9, 1997, in violation of
former section 12021, subdivision (a)(1). Counts 5 and 6 alleged
assault with a firearm on or about August 10, 1997, in violation
of section 245, subdivision (a)(2).
1 Unless otherwise stated, all further section references are
to the Penal Code.

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Count 7 alleged possession of a firearm by a felon on or
about August 10, 1997, and count 8 alleged possession of a
firearm by a felon on or about August 21, 1997, both in violation
of former section 12021, subdivision (a)(1). The information also
alleged several prior serious and violent felony convictions.
Appellant elected to go to jury trial.
On January 27, 1998, the jury found appellant not guilty of
counts 1, 2 and 4; guilty as to count 3 of the lesser included
offense of assault, and guilty of count 8, possession of a firearm
by a felon. The jury hung on counts 5, 6, and 7. At sentencing,
the trial court struck some, but not all, of the alleged prior
convictions. The court sentenced appellant to six months in the
county jail on count 3 and sentenced him to prison for 25 years to
life on count 8. Upon the People’s motion, the trial court
dismissed the remaining counts. Relevant to this appeal is the
conviction on count 8, possession of a firearm by a felon on
August 21, 1997.
The facts presented to the jury as to count 8 were simple.
On August 21, 1997, police executed a search warrant at
appellant’s house. Appellant was in the house when the police
arrived; he was the first person escorted out before the police
began the search. Also at the house were a man, and a woman
with an infant. Another man was sleeping in a trailer in the
backyard. During the search police found a gun in the drawer of
a desk located in a home office in the garage. When asked by
police prior to the search if there were guns at the residence,
appellant said that there was a gun, but he did not know where it
was located.

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On July 24, 2013, appellant filed a petition for recall of
sentence under Proposition 36. On July 29, 2013, the trial
court issued an order to show cause. The People filed
their opposition to the petition on September 16, 2013,
and a supplemental opposition and supplemental brief on
May 20, 2015. On June 15, 2015, appellant filed a bifurcated
reply. Attached to appellant’s bifurcated reply were the
information (Exhibit A); the jury forms (Exhibit B); the Amended
Abstract of Judgment (Exhibit C); and the unpublished appellate
opinion of People v. Heraclio S. Rodriguez (May 5, 1999,
B121876), affirming his conviction and sentence (Exhibit D).
The trial court set an eligibility hearing on the petition for
August 17, 2015. On August 10, 2015, the People filed their
exhibits for the hearing. The exhibits included the Abstract of
Judgment (Exhibit 1); the same unpublished court of appeal
opinion (Exhibit 2); a synopsis of the trial witnesses’ testimony
from the trial transcript (Exhibit 3); and the Reporter’s
Transcript of the trial testimony of Pomona Police Officers
Edil Vazquez and Raul Camargo.
On August 17, 2015, the trial court held an eligibility
hearing. The trial court admitted into evidence without objection
the parties’ exhibits and pleadings. No live testimony was
proffered. The trial court denied the petition. First, it made the
following finding: “I understand the facts are that the police
delivered a search warrant at his house. After they had gotten
Mr. Rodriguez out of the house and during their search, they
found a .22 Beretta handgun in a desk door [sic] in a converted
garage that was used as an office in Mr. Rodriguez’ house, and
they also found photos of the defendant with other guns.” The
court assumed the garage was detached. Correcting the court,

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defense counsel advised that the garage was connected to the
house.
The trial court then ruled: “On the basis of the submissions
and arguments of counsel, the court finds the petition [sic]
statutorily ineligible for recall and resentencing pursuant to
Penal Code section 1170.126, because during the commission of
the crime of being a felon in possession, he was armed with a
firearm. Accordingly, the petition is denied with prejudice
pursuant to [sections 667, subdivision (e)(2)(C)(iii) and 1170.126,
subdivision (e)(2)].” The trial court later issued a written order to
the same effect.
ISSUE
The issue that disqualified appellant from resentencing is
the trial court’s finding he was armed with a firearm during the
commission of the offense. Appellant argues that instead of
determining the “nature” of appellant’s actual conviction, the
trial court improperly reviewed the trial record looking for
evidence of arming and made its own factual finding that
appellant was armed during the commission of the offense.
According to appellant, the trial court’s finding was erroneously
based on an expansive reading of the record of conviction which
should have been limited to the facts of the offense for which he
was actually convicted. We disagree and affirm the trial court
order denying with prejudice appellant’s petition.

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DISCUSSION
On November 6, 2012, the electorate passed the
Three Strikes Reform Act of 2012, also known as Proposition 36.
Proposition 36 has prospective and retrospective components.
(People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,
1292.) The prospective provisions of Proposition 36 changed the
requirements for sentencing a third strike offender under the
Three Strikes law. (People v. Yearwood (2013) 213 Cal.App.4th
161, 167 (Yearwood).) Under the original version of the law, a
defendant who had two or more prior serious or violent felony
convictions was subject to a sentence of 25 years to life upon any
new felony conviction. (Former §§ 667, subd. (b)-(i), 1170.12.)
Proposition 36 amended sections 667 and 1170.12 to require a life
sentence only where the new felony is a serious or violent offense,
unless the prosecution pleads and proves certain disqualifying
factors. In all other cases, the defendant will be sentenced as a
second strike offender. (Yearwood, at pp. 167-168.)
The Act also created a retrospective, postconviction release
proceeding whereby an inmate serving an indeterminate life
sentence for a felony that is not serious or violent and who is not
otherwise disqualified, may have the sentence recalled. The
inmate can then be resentenced as a second strike offender
unless the court determines resentencing would pose an
unreasonable risk of danger to public safety. (§ 1170.126,
subd. (f).)

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Central to this appeal is the issue of disqualification: even
if the third strike is not a serious or violent felony, an inmate is
nonetheless ineligible for resentencing if he or she has one of the
enumerated disqualifying factors found in section 1170.126. One
such factor is whether “[d]uring the commission of the current
offense, the defendant used a firearm, was 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).)
The factual determination of whether the circumstances of
the offense of conviction disqualify a defendant from resentencing
is analogous to the factual determination of whether a prior
conviction is a serious or violent felony under the Three Strikes
law. Such factual determinations about prior convictions are
made by the court based on the entire record of conviction.
(People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero); People v.
Hicks (2014) 231 Cal.App.4th 275, 286; People v. Arevalo (2016)
244 Cal.App.4th 836, 848 (Arevalo).) The entire record of
conviction includes the appellate opinion (People v. Woodell
(1998) 17 Cal.4th 448, 456); transcripts of testimony (People v.
Bartow (1996) 46 Cal.App.4th 1573); admissions (People v.
Goodner (1990) 226 Cal.App.3d 609); and preliminary hearing
transcripts (People v. Blackburn (1999) 72 Cal.App.4th 1520). It
also includes facts established within the record, such as a
defendant’s personal admissions on Tahl2 waiver forms, even if
those facts are not essential to the judgment. (People v. Smith
(1988) 206 Cal.App.3d 340, 344-345 (Smith).)
2 In re Tahl (1969) 1 Cal.3d 122.

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Guerrero is the seminal case which established that the
trial court may look at the “record of conviction,” not just the
judgment of conviction, to determine the factual circumstances of
an offense. In that case, the trial court reviewed the accusatory
pleadings and the defendant’s pleas in order to determine the
nature of the conduct underlying the convictions. Our Supreme
Court validated that methodology, but warned: “To allow the
trier of fact to look to the entire record of the conviction is
certainly reasonable; it promotes the efficient administration of
justice and, specifically, furthers the evident intent of the
people in establishing an enhancement for ‘burglary of a
residence’—a term that refers to conduct, not a specific crime.
To allow the trier to look to the record of conviction—but no
further—is also fair: it effectively bars the prosecution from
relitigating the circumstances of a crime committed years ago
and thereby threatening the defendant with harm akin to double
jeopardy and denial of speedy trial.” (Guerrero, supra, 44 Cal.3d
at p. 355.)
Smith, which followed Guerrero, is instructive. Smith was
found guilty of three counts of burglary. He had prior convictions
for second degree burglary, which the trial court found to be prior
convictions for “burglary of a residence,” thus using them as a
basis to enhance defendant’s sentence. The evidence proving the
priors included defendant’s guilty pleas to second degree burglary
and his signatures on Tahl waiver forms where he admitted to
entering residences with intent to commit theft. Defendant later
argued his admissions to burglarizing residences could not be
used to enhance his sentence because entering a residence was
not an element of the offense of which he was found guilty, i.e.,

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second degree burglary. (Smith, supra, 206 Cal.App.3d at
p. 343.)
Relying on Guerrero, the Smith court noted a distinction
between enhancements that refer to conduct and enhancements
that refer to specific crimes. (Smith, supra, 206 Cal.App.3d at
p. 344.) Where the enhancement refers to prior conduct, the
court may examine reports that establish facts describing the
conduct, even though the conduct itself is not essential to the
underlying prior offense. (Ibid.) With “no difficulty” (id. at
p. 345), the Smith court concluded that charging documents, Tahl
forms, and sentencing transcripts are included in “any definition
of ‘record of conviction.’ ” (Ibid., fn. omitted.)
Next, People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo)
presented the “relitigation” problem that the Guerrero court
warned about. In that case, defendant agreed to enter a guilty
plea in exchange for the prosecution’s agreement to drop an
allegation of personal use of a dangerous weapon. After the
guilty plea, the probation officer reported that defendant had
stated, “ ‘I stuck [the victim] with the knife.’ ” (Trujillo, at
p. 171.) Years later the prosecutor wanted to use defendant’s
statement to prove that the prior conviction was for a serious
felony. (Id. at pp. 169-170.)
The Trujillo court would not allow it. Although the
statement appeared in the probation report, the stabbing was
never actually at issue or litigated in connection with the original
conviction and sentence because the subject had been dropped by
agreement of the parties. No findings were made; no facts were
established. Therefore, the defendant’s statement in the
probation report did not describe the nature of the crime of which
he was convicted and could not be used to prove that the prior

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conviction was for a serious felony. Relitigation of the nature of
the offense at a later date implicated Trujillo’s double jeopardy
concerns. (Trujillo, supra, 40 Cal.4th at pp. 179-180.)
Here appellant argues the jury never found, as part of its
verdict, that he was armed during the commission of the offense.
The sentencing court never made such a finding either.
Appellant reasons that because it was not litigated to the jury or
the court, the trial court could not find “arming” as part of the
conduct underlying the conviction. According to appellant, to
make such a finding now would be to “relitigate” the offense in
violation of Guerrero and Trujillo.
Appellant puts too fine a point on Guerrero and Trujillo.
Both stand for the proposition that facts never established in the
original record of conviction cannot be “proven” or relitigated in
later, unrelated proceedings. Neither case limits the record of
conviction to only those facts required to establish the elements of
an offense. If additional facts are established by competent
evidence, as Smith holds they may be, such facts may be used in
later proceedings.
Here, in concluding that appellant was armed with a
firearm during the commission of the offense, the trial court
relied on the exhibits submitted by the parties, including the trial
testimony of the two officers who executed the search warrant
and found the firearm at appellant’s house. This testimony alone
provides a sufficient evidentiary basis to support the conclusion
that appellant was armed with a firearm during the commission
of the offense. Vazquez testified that he went to appellant’s
house on August 21, 1997, to serve a search warrant. To ensure
officer safety, he spoke to appellant by telephone before executing
the warrant to ask him if he had a gun in the house. Appellant

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told Vazquez there was a gun in the house, but he did not know
where it was in the house. When the officers arrived, they asked
appellant to leave the house. Appellant complied; he was the
first person to exit the house.
The trial testimony of Camargo was also received into
evidence without objection. Camargo testified that he went to
appellant’s home on August 21, 1997, to execute a search
warrant. He found a .22-caliber Beretta semiautomatic pistol
inside a drawer of a desk in a converted garage home office. The
home office was connected to the house. Appellant had already
exited the residence by the time Camargo found the gun.
It is the firearm found in the drawer which was the
evidentiary basis for appellant’s conviction on count 8, possession
of a firearm by a felon. In denying the petition for recall of
sentence, the trial court properly relied on facts established at
trial at the time of the original conviction, that is, that the police
found a firearm in a desk drawer in a home office in appellant’s
house after they had removed appellant from the house. No new
or different evidence was received into evidence when the trial
court made its ruling. No one disputed these facts. In short, if,
as appellant asserts, “[l]itigation is a contest as to [the] facts,” no
litigation occurred.
Instead, the trial court took the facts established at trial
and arrived at the legal conclusion that defendant was armed
with a firearm during the commission of the offense. The phrase
“armed with a firearm” in section 667, subdivision (e)(2)(C)(iii)
means “having a firearm available for use, either offensively or
defensively.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029
(Osuna); People v. White (2014) 223 Cal.App.4th 512, 524 (White)
[it is the availability—the ready access—of the weapon that

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constitutes arming].) Thus, a defendant convicted of violating
former section 12021, subdivision (a)(1), can also be deemed
“armed” during the commission of the offense if the firearm he or
she was convicted of possessing was available for use, either
offensively or defensively. (Osuna, at p. 1035.)
Moreover, there must be a “temporal nexus” between the
possession of the firearm and the arming—meaning the firearm
must be available for use either offensively or defensively during
the time it is possessed. A “facilitative nexus” (People v. Brimmer
(2014) 230 Cal.App.4th 782, 794-799)—that the firearm be
available for use to further commission of the offense—is not
required. (Id. at pp. 794-799; White, supra, 223 Cal.App.4th at
pp. 524-526.)
Here, the trial testimony of Vazquez and Camargo
establishes that the firearm was in a desk drawer in a converted
garage office at appellant’s home and appellant was in the home
before he was asked to exit the house. This is not a situation
where, for example, a convicted felon kept a firearm in a locked
offsite storage unit where he had no ready access to it. (White,
supra, 223 Cal.App.4th at p. 524.) The trial court’s legal
conclusion that appellant had ready access to the weapon for
offensive or defensive purposes is supported by the officers’
undisputed testimony. That the trial court may have also
reviewed a photo of a defendant holding a firearm is of no
moment.
Finally, in Arevalo, supra, 244 Cal.App.4th at p. 852,
we held a trial court must find disqualifying factors using the
standard of proof of beyond a reasonable doubt. Assuming
without deciding that the trial court used a preponderance-of-the-
evidence standard in denying the petition, we nonetheless affirm.

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We conclude based on the facts established at trial that
there was overwhelming evidence that appellant was
“armed with a firearm” within the meaning of section 667,
subdivision (e)(2)(C)(iii). Any error by the trial court in using
the preponderance-of-the-evidence standard was harmless
beyond a reasonable doubt. (Cf. Chapman v. California (1967)
386 U.S. 18, 24; People v. Rubio (2004) 121 Cal.App.4th 927, 934
[most constitutional errors are subject to harmless error analysis
because they do not necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence].)3
3 We decline the People’s invitation to overrule Arevalo. We
also decline appellant’s invitation to overrule those cases holding
that a “facilitative nexus” is not required to find a defendant
“armed with a firearm” “[d]uring the commission of the
current offense” within the meaning of sections 667,
subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii).

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DISPOSITION
The order denying with prejudice the petition for recall of
sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
EDMON, P. J.
ALDRICH, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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