Opinion
F072626
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. TENACE DEMOND KNIGHT, Defendant and Appellant.
Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F10100267)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Timothy A. Kams, Judge. Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appointed counsel for defendant Tenace Demond Knight asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. We find no arguable issues on appeal.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On May 6, 2009, defendant, a prisoner at Pleasant Valley State Prison, was found carrying a laundry bag that contained two inmate-manufactured sharpened weapons capable of causing serious bodily injury.
We take judicial notice of our nonpublished opinion in People v. Knight (May 25, 2012, F062442).
On April 8, 2011, defendant was convicted by jury trial of possession of a weapon in a penal institution (Pen. Code, § 4502, subd. (a)). He admitted having suffered numerous prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and having served a prior prison term (§ 667.5, subd. (b)). The court sentenced him to 25 years to life, plus a one-year prior prison term enhancement.
All statutory references are to the Penal Code.
Section 4502, subdivision (a) provides: "Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of any penal institution, possesses or carries upon his or her person or has under his or her custody or control any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive substance, or fixed ammunition, any dirk or dagger or sharp instrument, any pistol, revolver, or other firearm, or any tear gas or tear gas weapon, is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, to be served consecutively."
On March 11, 2013, defendant, acting in propria persona, filed a petition for resentencing pursuant to Proposition 36 (§ 1170.126). The trial court denied the petition, finding defendant ineligible for relief because he was armed with a deadly weapon during the commission of the offense.
DISCUSSION
We conclude the trial court correctly determined defendant was not eligible for relief under Proposition 36. Section 1170.126 states that "[a]n inmate is eligible for resentencing if:
"(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
"(2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.
"(3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." (§ 1170.126, subd. (e)(1)-(3), italics added.)
Paragraph (2), above, applied to defendant. His current sentence was imposed for an offense appearing in section 667, subdivision (e)(2)(iii) because "[d]uring the commission of the current offense, [he] ... was armed with a ... deadly weapon ...."
People v. Valdez (2017) 10 Cal.App.5th 1338 (Valdez) recently held that a violation of section 4502, subdivision (a) need not be tethered to another offense, contrary to Valdez's and defendant's arguments. Valdez explained:
"Because section 1170.126 requires only that the arming be 'during' the commission of the crime, there is no facilitative nexus requirement as when
the arming must also be in furtherance of a felony. (People v. Hicks (2014) 231 Cal.App.4th 275, 283-284 (Hicks) [crime of possession of firearm by a felon precludes section 1170.126 relief under the arming prohibition]; accord, People v. White (2016) 243 Cal.App.4th 1354, 1362-1363 (T. White) [same]; People v. Osuna (2014) 225 Cal.App.4th 1020, 1032 (Osuna) [same].)" (Valdez, supra, 10 Cal.App.5th at p. 1349.)
"Similarly, here, defendant was armed with the deadly weapon during his commission of possession of a sharp instrument in prison. Contrary to defendant's contention, the possession of the weapon need not facilitate another felony, e.g., drug possession or drug manufacturing. We need only look to whether the inmate was armed during the possession of the weapon. Further, we see no need to reconsider, as urged by defendant, this court's determination in Hicks that 'there must be a temporal nexus between the arming and the underlying felony, not a facilitative one.' (Hicks, supra, 231 Cal.App.4th at p. 284.) As we have noted, other courts are in accord. (T. White, supra, 243 Cal.App.4th at pp. 1362-1363; Osuna, supra, 225 Cal.App.4th at p. 1032.) Additionally, on its facts, Hicks provides another example of the fact that a defendant need not be present with the weapon when it is discovered to be deemed 'armed' within the meaning of the exception rendering a defendant ineligible for resentencing under the Act." (Valdez, supra, 10 Cal.App.5th at p. 1350.)
The trial court in this case did not err in denying defendant's section 1170.126 petition. Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court's order denying defendant's Proposition 36 (Pen. Code, § 1170.126) petition is affirmed.