Filed 1/16/20 P. v. Graves CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES EDWARD GRAVES,

Defendant and Appellant.

C088154

(Super. Ct. No. 06F07694)

Defendant Charles Edward Graves was originally tried for assault with a firearm, being a felon in possession of a firearm, and negligent discharge of a firearm. A jury found him not guilty of the assault and negligent discharge offenses, and could not reach a verdict on the felon in possession charge. Upon retrial, a second jury found defendant guilty of being a felon in possession of a firearm, and found he had two prior serious or violent felonies. The following evidence was adduced at the second trial.

While visiting his friend Clem Carney on August 20, 2006, defendant bought methamphetamine from Joakima Gregg, who also lived at the house with her boyfriend. Early the next morning, defendant returned to the house carrying a long shotgun. He lifted up the gun, cocked it, and pointed it at Gregg, demanding that she refund him the money he paid her for the methamphetamine. Carney confronted defendant in the living room, asking defendant why he had a gun in his house. Meanwhile, Gregg went to her bedroom ostensibly to have her boyfriend bring defendant the money. During this time, Carney ushered defendant outside.

As defendant and Carney spoke outside, defendant became annoyed with Carney and pointed the shotgun at him. Carney tried to disarm defendant, but defendant slipped backwards and discharged the shotgun; Carney was struck in the leg. Defendant then walked back to his car where his wife was in the driver’s seat. Through a window, Gregg saw defendant pick up what looked like a shotgun shell from the driveway before getting into the passenger side of the car. He was still carrying the shotgun when he got into the car.

Two neighbors heard the commotion and looked out their respective windows. One neighbor saw defendant engaged in an intense verbal exchange outside Carney’s house and heard a gunshot, but he did not see defendant carrying a firearm. The other neighbor heard a gunshot and saw defendant carrying a shotgun as he walked from Carney’s house toward a car on the street. Defendant racked the shotgun with one hand and passed it into the vehicle before walking back toward the house, saying “I told you I wanted my money.” Defendant then returned to his car and left.

Defendant testified that he went to Carney’s house with his wife and stepdaughter around 2:00 a.m. to collect $10 or $15 he had loaned to Gregg when he visited the previous day. While they waited in the car, defendant went into the house and met with Gregg. According to defendant, Gregg loudly denied owing him money. Gregg’s boyfriend then approached defendant carrying a shotgun. Defendant pushed the gun barrel down and punched Gregg’s boyfriend, taking the gun from him. Carney appeared and told defendant to return the shotgun. Because he was scared, he held onto the gun and walked out of the house. Carney told Gregg’s boyfriend to go get defendant’s money.

Carney followed defendant out of the house and tried to retrieve the shotgun. While struggling over the gun, it went off accidentally, striking Carney. Shocked, defendant stood there for a moment and then removed the shells from the gun and threw them in a grassy area in front of the house before leaving.

Defendant’s wife testified that she never saw defendant holding a gun nor did she see the shooting from where she was seated in defendant’s car.

Following his conviction, the court sentenced defendant to 25 years to life in prison based on his prior strike convictions. In an unpublished opinion, we affirmed the conviction after rejecting defendant’s arguments regarding prosecutorial misconduct, ineffective assistance of counsel, the applicable burden of proof for the defense of transitory possession, and cruel and unusual punishment. (See People v. Graves (July 25, 2012, C065818) [nonpub. opn.].)

After the electorate adopted the Three Strikes Reform Act in 2012, defendant filed a petition for recall and resentencing pursuant to newly added Penal Code section 1170.126. The trial court denied the petition after finding defendant was statutorily ineligible for resentencing because he was armed during the commission of the offense. In an unpublished opinion, we affirmed the trial court’s order and rejected defendant’s argument that the trial court should not have relied on the statement of facts in this court’s appellate opinion to determine whether defendant was armed. (See People v. Graves (Feb. 6, 2015, C073359) [nonpub. opn.].)

In 2017, our Supreme Court held in People v. Frierson (2017) 4 Cal.5th 225, 235-236, 239-240 that the prosecution had the burden of proving beyond a reasonable doubt that a defendant was ineligible for resentencing under the Three Strikes Reform Act. Following Frierson, defendant filed a renewed petition for recall and resentencing under Penal Code section 1170.126, arguing that the record of conviction did not establish beyond a reasonable doubt that he was unlawfully armed during the commission of the current offense. The People opposed. The trial court denied the renewed petition, finding that the witness testimony during trial proved beyond a reasonable doubt that defendant was armed during the commission of the offense. Defendant timely appealed.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief requesting that we review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed and we have received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The order denying defendant’s Penal Code section 1170.126 petition for recall and resentencing is affirmed.

/s/

Robie, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Butz, J.