People v. Terry CA2/7

INTRODUCTION

Dewey Steven Terry III appeals from an order denying his petition for resentencing under the Three Strikes Reform Act of 2012, enacted by the voters as Proposition 36 (Pen. Code, § 1170.126).1 Terry argues the trial court erred in determining he was ineligible for resentencing because he was armed with a firearm during the commission of his current offense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996 a jury convicted Terry of possession of a firearm by a felon (former § 12021, subd. (a)(1)),2 based on evidence that he fired six gunshots into the home of Isora Harrell.3 The trial court in that case found Terry had two prior serious or violent felony convictions, a 1984 conviction for assault and a 1988 conviction for voluntary manslaughter, and sentenced Terry under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) to an indeterminate term of 25 years to life. On November 6, 2012 the electorate passed Proposition 36, which “authorizes prisoners serving third-strike sentences whose ‘current’ offense (i.e., the offense for which the third-strike sentence was imposed) is not a serious or violent felony to petition for recall of the…