Filed 6/27/16 P. v. Grego CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B265878
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA032123)
v.
CHRIS JOHN GREGO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
Richard B. Lennon, 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, Victoria B. Wilson and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal is from an order denying a Penal Code section 1170.1261 resentencing
petition. We affirm the order under review.
On November 13, 1996, a jury convicted defendant, Chris John Grego, of
possessing a firearm with a prior conviction of a specified violent offense in violation of
former section 12021.1, subdivision (a). At the time defendant committed the current
offense, former section 12021.1, subdivision (a) stated: “Notwithstanding subdivision (a)
of Section 12021, any person who has been previously convicted of any of the offenses
listed in subdivision (b) and who owns or has in his or her possession or under his or her
custody or control any firearm is guilty of a felony.” Former section 12021.1,
subdivision (a) listed 29 “violent” offenses. (Stats. 1993, ch. 612, §§ 9, pp. 3635-3636.)
Former section 12021.1 was repealed and reenacted as section 29900, subdivision (a)(1)
without substantive change. (Stats. 2010, ch. 711, §§ 4, 6; People v. Sanders (2012) 55
Cal.4th 731, 734, fn. 2.) The parties describe defendant’s conviction as a violation of
former section 12021, subdivision (a). However, former section 12021, subdivision (a),
offender in possession, and former section 12021.1, violent offender in possession, are
not interchangeable. (People v. Sanders, supra, 55 Cal.4th at pp. 737-738; see People v.
Dydouangphan (2012) 211 Cal.App.4th 722, 780, fn. 3.)
Further, the trial court found true allegations that defendant had been convicted of
three prior felonies with the meaning of sections 667, subdivision (d) and 1170.12,
subdivision (b). Defendant was sentenced to 25 years to life in state prison. We affirmed
the judgment on appeal. (People v. Grego (Jan. 27, 1998, B108447) [nonpub. opn.].)
On December 6, 2012, defendant filed a section 1170.126 resentencing petition.
The trial court denied the resentencing petition. The trial court found defendant was
ineligible for resentencing because he was armed with a firearm during the commission
of the current offense. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii),
1170.126, subd. (e)(2).)
1 Further statutory references are to the Penal Code.
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We review the trial court’s factual determination based on the record of conviction
for substantial evidence. (People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v.
Guilford (2014) 228 Cal.App.4th 651, 661; People v. Elder (2014) 227 Cal.App.4th 1308,
1317.) Substantial evidence in the record of conviction supports that finding. At trial,
California Highway Patrol Officer Brian Smith testified. On March 31, 1996, Officer
Smith saw defendant standing on a freeway shoulder near an off-ramp. Defendant had a
black jacket draped over his left arm. Officer Smith stopped to inquire why defendant
was on the side of the freeway. Defendant responded that his car had been towed from
the area. Defendant accepted Officer Smith’s offer of a ride to a location off the freeway.
Defendant was asked whether he had any weapons in his possession. This was standard
procedure when transporting civilians. Defendant responded that he had “a .25 auto” in
his jacket pocket. Officer Smith confiscated defendant’s jacket and searched the pockets.
In one of defendant’s pockets, Officer Smith found: a “silver in color Raven . . . .25
caliber” small handgun; a live round in the chamber; and four live rounds in the
magazine.
The trial court found defendant was ineligible for resentencing because he was
armed during the commission of the offense. (§§667, subd. (e)(2)(C)(iii), 1170.12, subd.
(c)(2)(C)(iii), 1170.126, subd. (e)(2).) Defendant argues this basis for finding him
ineligible for resentencing, he was armed, is inapplicable here. Defendant reasons that
being “armed” is not an element of the current firearm possession offense. Defendant
recognizes, however, that the Courts of Appeal have repeatedly rejected this argument.
(E.g., People v. White (2016) 243 Cal.App.4th 1354, 1357, 1362-1363; People v. Hicks,
supra, 231 Cal.App.4th at pp. 283-284; People v. Brimmer (2014) 230 Cal.App.4th 782,
797-799; People v. Elder, supra, 227 Cal.App.4th at p. 1317; People v. Blakely (2014)
225 Cal.App.4th 1042, 1048, 1051-1052; People v. Osuna (2014) 225 Cal.App.4th 1020,
1026-1027, 1028-1032; People v. White (2014) 223 Cal.App.4th 512, 519, 523-526.) We
agree with and follow the existing precedent.
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The order under review is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
KRIEGLER, J.
RAPHAEL, 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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