People v. Jimenez CA5

FACTS

On May 10, 2013, the trial court heard and ruled on several petitions pursuant to section 1170.126, including defendant’s, as follows:

“The Court recognizes this issue is a difficult one. I—the Court notes this issue and considers this issue as follows: Whether those petitioners whose offense of conviction does not include a pled and proved enhancement for weapons use, but does include an offense conviction that by its definition establishes that the defendant used a firearm, was armed with a firearm or deadly weapon .…”

All statutory references are to the Penal Code unless otherwise noted. We agree the claim is appealable. (Teal v. Superior Court (2014) 60 Cal.4th 595, 598-601.)

2. “I, therefore, [am] finding … that the electorate’s intent was to exclude from consideration any individual petitioning from resentencing for any weapons related felony …. [¶] … [¶]

“[E]ach of the named [defendants] is statutorily excluded from consideration for resentencing because, in fact, [his] offense of conviction is an offense involving the use of a firearm, being armed with a firearm ….” On May 17, the court considered defendant’s case, as follows:

“This case shares,…