P. v. Haro

Filed 3/2/17 P. v. Haro CA2/6
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
TOMMY HARO,
Defendant and Appellant.
2d Crim. No. B268143
(Super. Ct. No. KA056067-01)
(Los Angeles County)
OPINION FOLLOWING
REHEARING
Tommy Haro appeals an order denying his petition
for resentencing under Proposition 36, the Three Strikes Reform
Act of 2012 (the Act). (Pen. Code, § 1170.126.)1 We conclude,
among other things, that the trial court did not err by denying
his petition because he was armed with a firearm during the
commission of his 2002 offense of possession of a firearm by a
felon. (Former § 12021, subd. (a)(1).) We affirm.
1 All statutory references are to the Penal Code.

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2
FACTS
On February 21, 2002, Police Officer Juan Mata
conducted a parole search at a residence. The person “subject to
the search” was a woman named Patricia. Mata searched the
house, went to the garage four or five feet from the house, and
conducted a pat-down search of Haro, a felon. Mata opened a
cabinet in the garage and discovered an object wrapped in a blue
towel shaped like a rifle. He unraveled the towel and discovered
a blue bandana. He unwrapped the bandana and found a
Mosburg 12-gauge shotgun. He “observed men’s clothing inside
the cabinet and concluded [Haro] was the sole occupant of the
garage.”
Haro filed a motion to suppress. He claimed “he had
an expectation of privacy in the garage because it was his living
quarters [and] he had exclusive control of the cabinet where the
shotgun was recovered . . . .” The trial court denied the motion.
After a bench trial, Haro was found guilty of
possession of a firearm by a felon (Former § 12021, subd. (a)(1))
(count 1) and other offenses. Because of his conviction on count
1, he fell within the purview of the three strikes law and was
sentenced to an indeterminate 25-years-to-life term. We
affirmed the conviction.
In 2012, Haro filed a “petition for recall of sentence.”
He claimed, among other things, that his 2002 conviction for
possession of a firearm by a felon qualified for resentencing
under section 1170.126 .
The trial court denied the petition. It said, “[B]ased
on the record . . . [Haro] was armed with a firearm when he
committed [the offense].”

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DISCUSSION
The Act (§ 1170.126) changed “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.” (People v. Osuna
(2014) 225 Cal.App.4th 1020, 1026.) “In all other cases, the
recidivist will be sentenced as a second strike offender.” (Ibid.)
“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 . . . .” (Ibid.)
Standard of Proof
Haro contends the trial court erred by making
findings on his eligibility for resentencing using the wrong
standard--preponderance of the evidence.
The People claim Haro has not presented a
sufficient record on this issue. Nor did Haro raise this issue in
the trial court. The record is silent on the standard the court
applied. We cannot presume error on an incomplete,
undeveloped or silent record. (Maria P. v. Riles (1987) 43 Cal.3d
1281, 1295-1296.) Even assuming the court used the
preponderance of the evidence standard, the result does not
change.
In People v. Osuna, supra, 225 Cal.App.4th at page
1040, the court held that “[b]ecause a determination of
eligibility under section 1170.126 does not implicate the Sixth
Amendment, a trial court need only find the existence of a
disqualifying factor by a preponderance of the evidence.”

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Haro notes that in People v. Arevalo (2016) 244
Cal.App.4th 836, 853, the appellate court held the applicable
standard in determining eligibility in resentencing cases is proof
beyond a reasonable doubt. But in reaching this conclusion, the
court acknowledged that it was departing from prior cases that
held the preponderance of the evidence standard applies.
The People suggest Arevalo’s discussion of the
standard of proof is dicta because the court reversed the order
denying resentencing for another reason. At resentencing, the
trial court found Arevalo was armed when he committed his
offenses. But at trial he was acquitted of the felon in possession
of a firearm charge, and an arming enhancement allegation was
found not to be true. The Court of Appeal said, “Arevalo’s
acquittal on the weapon possession charge and the not-true
finding on the allegation of being armed with a firearm,
preclude a finding that he is ineligible for resentencing
consideration.” (People v. Arevalo, supra, 244 Cal.App.4th at
p. 853.) After determining that the order had to be reversed, the
court said, “The matter is remanded for a hearing to determine
whether, under a preponderance of the evidence standard,
Arevalo would pose an unreasonable risk of danger to public
safety such that he should not be resentenced.” (Id. at p. 854,
italics added.)
We agree with the majority of courts that hold the
preponderance of the evidence standard is the correct one for
deciding eligibility for resentencing. (People v. Frierson (2016) 1
Cal.App.5th 788, 793-794; People v. Blakely (2014) 225
Cal.App.4th 1042, 1060-1062; People v. Osuna, supra, 225
Cal.App.4th at p. 1040.)

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Resentencing Court’s Reliance On the Trial Record
Haro contends the trial court erred by making “its
own factual finding that [he] was armed during the commission
of the offense” by relying on portions of the “trial record
provided by the District Attorney.”
The People contend that at resentencing the trial
court “[p]roperly [e]xamined the [r]ecord of [c]onviction.”
(Boldface omitted.) They claim it properly reviewed transcripts
of the trial testimony and the appellate opinion which affirmed
Haro’s conviction “to determine whether [Haro] was armed with
a firearm.” We agree.
“The factual determination[s] of whether the felon-
in-possession offense was committed under circumstances that
disqualify defendant from resentencing” are made “by the court
based on the record of conviction.” (People v. Hicks (2014) 231
Cal.App.4th 275, 286.) “[T]he appellate opinion is part of the
record of conviction.” (Ibid.)
Haro contends the trial court improperly and
independently relitigated his case to decide his ineligibility for
resentencing. But, as the People note, in making its findings on
eligibility, the trial court did not go outside the record. The
district attorney requested the court to decide his ineligibility
for resentencing based on the trial transcripts and the facts in
our appellate opinion which affirmed his conviction. The trial
court said, “[B]ased on the record . . . , [Haro] was armed with a
firearm when he committed [the offense].” Haro has not shown
this finding was not derived from the trial record or is
inconsistent with the facts in the appellate decision. (People v.
Haro (Sept. 24, 2003, B162005) [nonpub. opn.].)

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Armed With a Firearm
Haro contends the trial court erred in finding that
he was armed with a firearm. We disagree.
“[A]n inmate is disqualified from resentencing if . . .
‘[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.’”
(People v. Osuna, supra, 225 Cal.App.4th at p. 1029.) “‘[A]rmed
with a firearm’ has been statutorily defined and judicially
construed to mean having a firearm available for use, either
offensively or defensively.” (Ibid.)
Haro claims having a firearm available for use
during his unlawful possession of a firearm offense (former
§ 12021) does not render him ineligible for resentencing.
Appellate courts have rejected this contention. In Osuna, the
court said the Act “disqualifies an inmate from resentencing if
he or she was armed with a firearm during the unlawful
possession of that firearm.” (People v. Osuna, supra, 225
Cal.App.4th at p. 1032.) “[A] defendant is armed with a weapon
even though it is not carried on his person, when he is aware it
is hidden in a place readily accessible to him.” (People v. White
(2016) 243 Cal.App.4th 1354, 1362.) Such places may include a
shelf or a bedroom in a residence. (Ibid.)
As the People note here, evidence in the trial record
shows Haro hid the gun in his residence. In our decision
affirming his conviction, we said Haro claimed “he had an
expectation of privacy in the garage because it was his living
quarters [and] he had exclusive control of the cabinet where the
shotgun was recovered . . . .” The trial record also shows that he
was in the garage at the time of the search. The weapon was

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“hidden in a place readily accessible to him.” (People v. White,
supra, 243 Cal.App.4th at p. 1362.)
In a petition for rehearing, Haro claims we should
not have cited language from our prior appellate opinion about
facts he stated in an unsuccessful motion to suppress evidence.
But that is part of the case history. Moreover, as already
mentioned, the trial court’s findings also are supported by
additional facts in the trial court record.
We have reviewed Haro’s remaining contentions and
we conclude he has not shown grounds for reversal.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.

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William C. Ryan, Judge
Superior Court County of Los Angeles
______________________________
Maria Morrison, 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,
Senior Assistant Attorney General, Noah Hill, Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.

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