People v. Graves CA3

BACKGROUND

According to the facts referenced by the trial court in its order denying the petition for recall and resentencing, at about 2:00 a.m. one morning, defendant either took a gun to a friend’s house and pointed it at a woman he believed cheated him in a drug transaction, or he confronted the woman unarmed, but then, during a scuffle with an armed man who responded to her screaming, took the man’s gun and carried it outside where the gun went off during a confrontation with his friend. The trial court determined that defendant was ineligible for resentencing because he admitted possessing the gun that morning and the jury rejected his defense that the possession was transitory. In response to a petition for reconsideration, the trial court made a correction to its initial ruling and explained why there was no right to a new jury trial to determine whether defendant was armed.

DISCUSSION

I Defendant contends the trial court erred in finding him ineligible for resentencing based on facts outside the record of conviction. The Three Strikes Reform Act (the Act) was approved by the voters as Proposition 36 in November 2012; it amended Penal Code sections 667 and 1170.12 and…