Filed 8/24/21 P. v. Miranda CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B308583
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA061835)
v.
JERRY MARTIN MIRANDA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Cindy Brines, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellant Jerry Martin Miranda challenges the denial of
his petition for recall and resentencing under Proposition 36, the
Three Strikes Reform Act of 2012. (See Pen. Code, § 1170.126.1)
Appellant’s appointed counsel filed a brief on appeal raising no
issues and invoking People v. Serrano (2012) 211 Cal.App.4th 496
(Serrano). Appellant filed a supplemental brief, asserting that
the court erred in denying his petition and challenging the
circumstances of his guilty plea. We affirm.
BACKGROUND
A. Prior proceedings
On May 8, 2003, police and parole officers conducted a
parole search of appellant’s apartment. Appellant was detained
in the hallway inside the apartment. Appellant admitted he had
drugs in his pants in the bedroom. Officers searched the bedroom
and recovered cocaine and heroin from appellant’s pants pocket.
Officers also located a loaded handgun in the bedroom hidden
between the mattress and box spring. A parole agent found a
“hype kit” containing syringes in the kitchen. Appellant
admitted to officers that the drugs were for his personal use, and
that he kept the gun for protection.
Appellant pled guilty to one count of possession of a firearm
by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1),
count 1), two counts of possession of a controlled substance while
armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a),
counts 2 and 3), and one count of possession of narcotics
paraphernalia (Health & Saf. Code, § 11364, count 4). He also
admitted that he had suffered four prior strike convictions
1All further statutory references are to the Penal Code
unless otherwise indicated.
2
(§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and served three
prior prison terms (§ 667.5, subdivision (b)). The court sentenced
appellant to 25 years to life on count 2, a concurrent sentence of
25 years to life on count 3, and 60 days on count 4. The court
stayed the sentence on count 1 under section 654. Appellant
challenged his sentence on appeal, and this court affirmed.
(People v. Miranda (Mar. 23, 2005, B171716) [nonpub.opn].)
In 2013, appellant petitioned for resentencing under
Proposition 36, which allows certain inmates serving Three
Strikes terms to petition for modification of their current
sentences. The People opposed the petition, asserting that
appellant’s offenses did not qualify for resentencing based on the
firearm disqualification provision: an offense does not qualify for
resentencing if, during the commission of that 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).)
At the hearing on the petition, in which appellant was
represented by counsel, it was undisputed that a loaded gun was
located under a mattress in appellant’s home while appellant was
detained in a different room.2 Health and Safety Code, section
11370.1 provides that “‘armed with’ means having available for
immediate offensive or defensive use.” Defense counsel argued
the facts were insufficient to meet this definition; the People
argued the definition was met. The trial court found that the gun
was “readily available for offensive/defensive use”; therefore,
2Appellant does not challenge the finding that he
possessed a controlled substance; he stated in his petition that
during the search, he “told the Officers where to locate a small
amount of drugs (for personal use)” in the home.
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appellant was armed with a firearm during the commission of the
offenses and was ineligible for resentencing.
This court affirmed the ruling. (People v. Miranda (Jan. 8,
2016, B261306) [nonpub. opn.].) We noted that the “transcripts
showed that during the search of his apartment, defendant
admitted he had narcotics in his pants which were in his
bedroom; upon recovering the narcotics from defendant’s pants,
police also found, within an arm’s span of the pants, a loaded
semi-automatic handgun hidden under a mattress.” (Ibid.) We
stated, “Applying the temporal definition of the term ‘armed with
a firearm’ to the record of conviction in this case, we conclude
there is substantial evidence to support the finding that
defendant was armed with a firearm during the commission of
the current offenses. We therefore conclude he is ineligible for
resentencing under Proposition 36.” (Ibid.)
B. Current proceedings
In July 2019, appellant in propria persona filed a form
petition for writ of habeas corpus, which also stated on the cover
that it was seeking “recall of sentence” under section 1170.126.
Appellant noted that his previous petition had been decided
under a preponderance of the evidence standard. After that
denial, the Supreme Court held that under Proposition 36 the
People must establish a petitioner is ineligible for resentencing
beyond a reasonable doubt. (People v. Frierson (2017) 4 Cal.5th
225, 230 (Frierson).) Appellant therefore requested that the court
consider resentencing under the standard articulated in Frierson.
Appellant also asserted that he was not armed when he was
arrested, and his offenses were not serious or violent felonies.
Appellant further contended that Proposition 36 was vague and
failed to give notice as to the meaning of “armed.” In addition, he
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argued that in 2014 he sought a substitution of counsel, but the
court never provided a Marsden hearing.3 Appellant also
asserted that the “Proposition 36 Court proceedings were a sham
and a miscarriage of justice because he went through the process
without an attorney.”
The court, referring to appellant’s “petition for recall and
resentencing pursuant to Penal Code section 1170.126,”
appointed counsel to address the Frierson issue on August 28,
2019. On March 20, 2020, appellant filed a document stating
that he had attempted to discuss his case with his appointed
counsel, but as of March 2020, appellant had not heard from
counsel in more than six months. Appellant also argued that his
counsel at the time of his guilty plea was ineffective, appellant
never intended to plead guilty to being armed, and if his guilty
plea was interfering with the resentencing, “I would like to take
back my guilty plea because this reasoning of law was not
explained to me.”
On May 18, 2020, the court set a resentencing eligibility
hearing for August 31, 2020. Appellant, through his appointed
counsel, filed supplemental briefing asserting that under
Frierson, “the People must prove beyond a reasonable doubt that
Petitioner Miranda was armed with a loaded and operable
firearm . . . .” Appellant stated that when he was arrested, he
was “first observed by police officers walking naked down the
hallway of his apartment.” Appellant acknowledged that a guilty
plea may be interpreted to admit all elements of an offense, but
argued, “The record is silent as to why Petitioner Miranda pled to
the charges. We do not know if Petitioner Miranda was informed
he was pleading to an armed with a firearm charge when he
3 People v. Marsden (1970) 2 Cal.3d 118.
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clearly was unclothed and was initially observed by police officers
outside the room where the narcotics and weapon were found.”
Appellant submitted a separate letter to the court, asserting in
part, “No one explained to me all the different ways one can be
considered to be armed, and now the prosecution is using this to
deny my eligibility.”
At the hearing on August 31, 2020, defense counsel argued
that appellant “wasn’t armed with a firearm. He was, in fact, he
was down the hallway.” The prosecutor argued that this case
was similar to others in which a defendant was deemed armed
when guns were found in a home, but not on the defendant’s
person. The prosecutor stated, “[Appellant] told the officers
where the drugs were in his pants in the bedroom. The gun was
recovered within an arm’s length from where the drugs were[,]
hidden beneath the mattress. In addition, at a later point, he
actually told one of the officers that he possessed that firearm for
purposes of protection.”
The court took the matter under submission and issued a
written ruling finding appellant ineligible for resentencing. The
court noted the relevant legal standards and stated, “Here, a
loaded handgun was found directly in petitioner’s bedroom. It
was readily available to him from the hallway for offensive or
defensive purposes. [Citation.] Petitioner stated that this was
the reason he acquired the gun. . . . Thus, there is more than
sufficient evidence to find that Petitioner was armed with a
firearm during his unlawful possession of a firearm.” The court
held, “Accordingly, the court finds after an evidentiary hearing
that the Petitioner was armed with a firearm beyond a
reasonable doubt within the meaning of Penal Code sections
667(c)(2)(C)(iii) and 1170.12(e)(2)(C)(iii).)”
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Appellant timely appealed.
DISCUSSION
Appellant’s appointed counsel filed a brief raising no issues
and invoking People v. Serrano (2012) 211 Cal.App.4th 496
(Serrano). Under Serrano, when appointed counsel raises no
issue in an appeal from a post-judgment proceeding following a
first appeal as of right, an appellate court need not independently
review the record and may dismiss the appeal if the appellant
fails to file a supplemental brief. (Id., at pp. 498, 503.) We
directed counsel to send the record and a copy of the brief to
appellant, and notified appellant of his right to respond within 30
days.
Appellant timely filed a supplemental brief. In a case under
Serrano, “if the defendant files a supplemental brief, the Court of
Appeal is required to evaluate any arguments presented in that
brief and to issue a written opinion that disposes of the trial
court’s order on the merits.” (People v. Cole (2020) 52
Cal.App.5th 1023, 1040.) We therefore address the issues set
forth in appellant’s supplemental brief.
A. Appellant was not eligible for resentencing
1. The record demonstrates appellant was “armed”
Appellant challenges the trial court’s denial of his request
for resentencing under Proposition 36 based on the finding that
appellant was “armed.” Generally, denial of a motion under
section 1170.126 is an appealable order. (Teal v. Superior Court
(2014) 60 Cal.4th 595, 601.)
Under Proposition 36, a petitioner “is statutorily ineligible
for resentencing if ‘[d]uring the commission of the current
offense, the defendant . . . was armed with a firearm or deadly
weapon.’ (§ 1170.12, subd. (c)(2)(C)(iii).)” (People v. Cruz (2017)
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15 Cal.App.5th 1105, 1109.) “‘[A]rmed with a firearm,’ as that
phrase is used in the [Three Strikes Reform] Act, [means] having
a firearm available for offensive or defensive use.’” (People v.
Blakely (2014) 225 Cal.App.4th 1042, 1052; see also People v.
Brimmer (2014) 230 Cal.App.4th 782, 796; People v. Cruz, supra,
15 Cal.App.5th at p. 1110.)
Appellant pled guilty to violating Health and Safety Code,
section 11370.1, subdivision (a), which states that “every person
who unlawfully possesses any amount of a [controlled substance]
while armed with a loaded, operable firearm is guilty of a felony. .
. . As used in this subdivision, ‘armed with’ means having
available for immediate offensive or defensive use.” “A guilty
plea admits every element of the charged offense.” (In re Chavez
(2003) 30 Cal.4th 643, 649; see also People v. Turner (1985) 171
Cal.App.3d 116, 125 [“A guilty plea thus concedes that the
prosecution possesses legally admissible evidence sufficient to
prove defendant’s guilt beyond a reasonable doubt”].) Through
his guilty plea, therefore, appellant admitted that at the time of
the parole search, he was armed with a loaded, operable firearm
that was available for immediate offensive or defensive use.
Under the plain language of the “armed with a firearm” exclusion
in Proposition 36, appellant’s two convictions under Health and
Safety Code, section 11370.1, subdivision (a) were ineligible for
resentencing. (See, e.g., People v. Superior Court (Martinez)
(2014) 225 Cal.App.4th 979, 995 [trial court erred as a matter of
law in finding that a petitioner convicted under Health & Saf.
Code, § 11370.1, subd. (a) qualified for resentencing under
Proposition 36].)
In his supplemental brief on appeal, appellant focuses on
count 1, possession of a firearm by a felon, asserting that
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“possession” is not tantamount to being armed. He contends that
because the gun was not in the immediate area in which he was
detained, he did not have ready access to the firearm and it was
not available for offensive or defensive use.
We are not persuaded. It is well settled that a defendant
may be deemed “armed with a firearm” when a gun is found close
to the defendant, even if the firearm is not directly under the
defendant’s control at the time of detention. (See, e.g., People v.
Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011
[the defendant was armed when he was detained in the doorway
of the home and the firearm was in an adjacent bedroom]; People
v. Hicks (2014) 231 Cal.App.4th 275, 284 [the defendant was
armed when he was detained outside an apartment building and
the firearm was found in the defendant’s backpack inside an
apartment]; People v. Elder (2014) 227 Cal.App.4th 1308, 1317
[the defendant was armed when he was detained outside the
front door and two guns were found inside his apartment].)
Appellant relies on People v. Byers (2020) 53 Cal.App.5th
1106 (Byers), but it is factually dissimilar. Byers discussed the
difference between being “armed” with a firearm and “possession”
of a firearm. The defendant was arrested in one location, and a
firearm was found in a house four miles away along with some of
the defendant’s other belongings. The Court of Appeal held that
although the defendant “possessed” the firearm, the firearm was
not readily available to the defendant, so “there is insufficient
evidence [the defendant] was armed with a firearm during the
offense of possessing the firearm.” (Id. at p. 1112.)
The facts here are not comparable. Appellant was detained,
naked, in the hallway, and the firearm was found in the bedroom
an arm’s length from his pants containing the controlled
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substances. The firearm was mere steps away from appellant, as
readily available to appellant as his clothing. Moreover,
appellant admitted he kept the firearm for defensive use. The
court’s finding beyond a reasonable doubt that appellant was
armed with a firearm is supported by the record.
2. There is no evidence the trial court was biased
Appellant also asserts that the court’s decision should be
reversed because the trial court judge, William C. Ryan, was
partial or biased. Appellant asserts three bases for this
contention. First, appellant points out that Judge Ryan decided
appellant’s 2013 petition for resentencing. Appellant argues that
Judge Ryan was therefore ineligible to decide his second petition
for resentencing under Code of Civil Procedure section 170.1,
subdivision (b), which states, “A judge before whom a proceeding
was tried or heard shall be disqualified from participating in any
appellate review of that proceeding.” Appellant’s contentions are
not supported by the record. Judge Ryan did not participate in
the appeal following appellant’s first petition for resentencing,
and appellant’s successive petition for resentencing does not
constitute an appeal from the ruling on the first petition.
Second, appellant contends that Judge Ryan showed bias
when discussing Byers, supra, 53 Cal.App.5th 1106 at the
eligibility hearing. At the hearing, Judge Ryan stated, “I know
the case and I know the facts,” and remarked that he thought the
case was “wrongly decided.” Appellant points out that Judge
Ryan “presided over the Byers case,” and asserts that Judge
Ryan’s comment shows he “could not be impartial” due to the
“reversal on the case he adjudicated.” Judge Ryan’s comment
that Byers was wrongly decided does not show any bias in
appellant’s case. To the contrary, Judge Ryan noted at the
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hearing that the facts in Byers were different, and stated in his
written ruling, “Byers is factually inapplicable.”
Third, appellant asserts that Judge Ryan should be
disqualified under Code of Civil Procedure section 170.1,
subdivision (a)(1)(A), which states that a judge shall be
disqualified if he or she “has personal knowledge of disputed
evidentiary facts concerning the proceeding.” Nothing in the
record suggests Judge Ryan’s familiarity with either Byers or this
case arose from any personal connection to the cases, as opposed
to from his professional role as judge. The record does not
support appellant’s contentions of bias.
3. Proposition 36 is not unconstitutionally vague
Appellant contends Proposition 36 is unconstitutionally
vague because it fails to provide fair notice to someone charged
with possessing a firearm about what conduct might bar
eligibility for resentencing. Appellant, again focusing only on
count 1, argues that he was charged with “possessing” a firearm,
and states, “One would question why Appellant wasn’t charged as
being ‘armed.’” He asserts, “Appellant was not charged or
convicted of being armed, therefore, the finding of the trial court,
that Appellant was armed should not be used as a ‘disqualifying
factor’ to preclude resentencing.”
Appellant’s contention is not supported by the record. He
was charged with two counts of possession of controlled substance
while armed with a firearm (Health & Saf. Code, § 11370.1, subd.
(a)), he pled guilty to those two counts, and was sentenced on
those two counts. His contention that he was convicted only of
possession of a firearm is not supported by the record. Moreover,
Health and Safety Code section 11370.1, subdivision (a) includes
a definition of “armed with a firearm.” No evidence in the record
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suggests appellant’s plea to counts 2 and 3 was not knowing and
voluntary. In addition, the facts of the case demonstrate that
appellant was armed with a firearm.
B. Appellant may not challenge his guilty plea
Appellant argues that if we find he was “armed,” we should
allow him to withdraw his guilty plea because he was not
provided with sufficient notice of what his plea would entail. He
also argues that his plea was invalid because it was based on a
misrepresentation about the sentence he would receive, and
because his counsel was ineffective. Appellant further contends
that his statements to officers were made under duress and in
violation of Miranda v. Arizona (1966) 384 U.S. 436.
These contentions go beyond the scope of the issues the
court decided below and are not appealable. Appellant’s request
was labeled “petition for habeas corpus,” but the trial court
treated it as a petition for resentencing under Proposition 36.
Appellant did not object. As noted above, the denial of a
resentencing petition is appealable. To the extent appellant’s
request can be deemed a petition for habeas corpus, however, it is
not appealable. (Jackson v. Superior Court (2010) 189
Cal.App.4th 1051, 1064 [“No appeal lies from an order denying a
petition for writ of habeas corpus”].)
Moreover, appellant may not challenge the validity of his
plea and conviction. His judgment of conviction is long since
final, and appellant’s assertions are not cognizable in an appeal
from a post-judgment order denying a petition for resentencing.
We therefore do not consider appellant’s challenges to his guilty
plea.
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DISPOSITION
The court’s order denying appellant’s petition for
resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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