Opinion
B297584
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. WARNER LIVINGSTON, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Pamela C. Hamanaka, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. GA022315) APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed.
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Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second appeal concerning defendant and appellant Warner Livingston's petition, under Proposition 36, for resentencing on his third-strike sentence. In an earlier opinion (People v. Livingston (Jan. 31, 2018, B281570) [nonpub. opn.]), we conditionally reversed the trial court's finding that Livingston was eligible for relief with respect to his conviction of attempted false imprisonment of a hostage. (Pen. Code, §§ 210.5, 664.) We remanded the case for the trial court to determine whether Livingston was armed during the commission of the offense and therefore ineligible for resentencing. The trial court found that Livingston was indeed armed. Livingston contends that there was insufficient evidence to support the trial court's finding. We affirm.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
FACTS AND PROCEEDINGS BELOW
In 1994, Livingston robbed a bank in Arcadia. He used a gun in the robbery, and at least one teller saw him take the gun with him as he left the bank. The same teller followed Livingston outside and continued watching him until police officers arrived. Livingston then got into his car and drove away, driving recklessly while he attempted to flee from the police until he crashed into a car and was forced to stop. Livingston ran toward a nearby house and grabbed a homeowner who had come outside his house to see what was happening. When that victim resisted, Livingston told him to get in the house. Livingston also told the victim that he had a gun, though the victim never saw it. The victim managed to escape, but Livingston refused to surrender and remained inside the victim's house for seven hours until police took him into custody. Police officers did not see Livingston discard the gun, and they did not find the gun in Livingston's car, the victim's house, or anywhere else.
Because we have already described the facts of the case in detail in our previous opinion, we summarize them only briefly here.
A jury convicted Livingston of 11 felony counts, including six counts of robbery (§ 211), and the trial court imposed a sentence of 210 years to life under the "Three Strikes" law (§§ 667, subds. (b)-(j), 1170.12). We later vacated Livingston's sentence following a petition for habeas corpus, and the trial court resentenced him to a total term of 95 years to life.
In 2012, the voters enacted Proposition 36, which eliminated life sentences under the Three Strikes law for certain defendants convicted of nonviolent and non-serious felonies. The new law also included section 1170.126, which provides a mechanism by which those already serving life sentences for nonviolent and non-serious felonies can petition for a reduction in their sentences. Robbery is a violent felony (see § 667.5, subd. (c)(9)), and Livingston's convictions for that offense were therefore unaffected by Proposition 36. But two other convictions were for non-serious and nonviolent felonies: one count of evading an officer while driving recklessly (Veh. Code, § 2800.2), and one count of attempted false imprisonment of a hostage. (§§ 210.5, 664.) In 2015, Livingston filed a petition under section 1170.126 for recall of his sentence on these two convictions.
The trial court denied the petition with respect to Livingston's conviction of evading an officer on the ground that Livingston was armed with a firearm during the commission of that offense and was therefore ineligible for relief. (See §§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) With regard to the conviction of attempted false imprisonment of a hostage, the trial court found that Livingston was eligible for relief because the jury had rejected the prosecution's allegation that Livingston used a firearm in the commission of that offense. (§ 12022.5, subd. (a).)
In our previous opinion, we affirmed the trial court's denial of the petition on the charge of evading an officer because there was substantial evidence supporting the trial court's finding that Livingston was armed during the commission of the offense. But we conditionally reversed the trial court on the attempted false imprisonment count because the jury's finding on the firearm allegation was not sufficient to show he was eligible for resentencing. (See People v. Livingston, supra, B281570.) By finding the firearm allegation not true, the jury concluded only that the prosecution failed to prove that Livingston "use[d] a firearm" in the commission of the offense. (§ 12022.5, subd. (a).) This was not the same as determining that he was not "armed with a firearm" during the commission of the offense (§ 667, subd. (e)(2)(C)(iii)), as is required for eligibility for resentencing under Proposition 36.
We therefore remanded the case to the trial court for a new determination of whether Livingston was armed during the commission of attempted false imprisonment. The trial court found that Livingston was indeed armed during the commission of that offense, reasoning that he was armed when he committed the robberies, no one saw him discard the gun, and he told the victim whom he attempted to take hostage that he had a gun.
DISCUSSION
Livingston contends that there was insufficient evidence to support the trial court's finding that he was armed during the commission of attempted false imprisonment. We disagree.
Section 1170.126 bars resentencing for otherwise eligible defendants in cases where the defendant was armed during the commission of the offense. (See §§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) A defendant is armed during the commission of an offense if a weapon is readily accessible to him, even if he is not carrying it and he does not use it to help him commit the offense. (People v. Valdez (2017) 10 Cal.App.5th 1338, 1350-1351.) The prosecution must prove beyond a reasonable doubt that a defendant is ineligible for resentencing. (People v. Frierson (2017) 4 Cal.5th 225, 235-236.) On appeal, we review the trial court's finding of ineligibility for substantial evidence. (People v. Perez (2018) 4 Cal.5th 1055, 1066.)
In reaching its conclusion that Livingston was armed during the commission of the attempted false imprisonment, the trial court referred to the reasoning in our earlier opinion with respect to Livingston's conviction of evading a police officer. We held that sufficient evidence supported the finding that Livingston was armed during the commission of that offense because he "was armed with a gun when he robbed the bank, and he was still armed with the gun when he fled the bank. [Livingston] was observed nearly the entire time after he left the bank until he crashed his car in front of [the victim]'s house. At no time before or while he was evading the police was [he] seen discarding the weapon. Also, when he kidnapped [the victim, Livingston] claimed that he had a gun." (People v. Livingston, supra, B281570.) The trial court stated that it would "be inclined to reach the same conclusion as to" the attempted false imprisonment conviction. Although the court took into account the jury's rejection of the allegation that Livingston used a weapon in the commission of the offense, the court nevertheless found beyond a reasonable doubt that Livingston was armed "given his own words that he said I have a gun and also given that no gun was recovered and it wasn't recovered on his person either, but no one saw the gun discarded."
Livingston disagrees with this reasoning. He argues that it is inappropriate to draw inferences regarding the attempted false imprisonment on the basis of the conviction for evading a police officer because the circumstances surrounding the offenses were different. He argues that he was not under constant observation when he fled from his crashed car into the victim's home, and thus he could have discarded the gun without being noticed at that point. Furthermore, Livingston notes that he never displayed the gun when he was attempting to take the homeowner hostage inside the house, unlike during the bank robbery, when he openly displayed the gun at the victims. He argues that the trial court therefore could not reasonably infer beyond a reasonable doubt that he was armed at the time.
We are not persuaded. In reviewing the sufficiency of the evidence, we "do[ ] not reweigh the evidence; appellate review is limited to considering whether the trial court's finding [that the defendant was ineligible beyond] a reasonable doubt is supportable in light of the evidence." (People v. Perez, supra, 4 Cal.5th at p. 1066.) Under that standard, we must affirm the trial court's finding. Livingston fled quickly from his wrecked car to the victim's house. After the victim escaped, Livingston spent seven hours inside the house alone and unobserved. The court could reasonably infer that Livingston was telling the truth when he told the victim he had a gun, and that during the ensuing several hours, he found a way to dispose of it so that police could not find it.
DISPOSITION
The trial court's order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------