Filed 4/18/16 P. v. Reyes CA2/3
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SECOND APPELLATE DISTRICT

                                                  DIVISION THREE



THE PEOPLE,                                                              B264694

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. KA034752)
         v.

ALEXANDER REYES,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
         Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Chung L.
Mar, Deputy Attorneys General, for Plaintiff and Respondent.

                                          _________________________
         Alexander Reyes appeals from the trial court order denying his petition for
resentencing under the Three Strikes Reform Act of 2012 (hereafter, Proposition 36 or the
Act). The Act amended Penal Code1 sections 667 and 1170.12 (the Three Strikes law) to
reduce the punishment for some third-strike offenses that are neither serious nor violent.
The Act also added section 1170.126 to create a procedure by which some inmates already
serving third-strike sentences may seek resentencing in accordance with the new sentencing
rules.
         Reyes was convicted by a jury in 1997 of being a felon in possession of a firearm
([former] § 12021, subd. (a)2) for which he received a Three Strikes sentence of 25 years to
life. In 2014, he filed a petition for recall of his Three Strikes sentence pursuant to
section 1170.126. The trial court denied the petition on the ground that Reyes had been
armed with a firearm during the commission of his offense within the meaning of
sections 667, subd. (e)(2)(C)(iii), and 1170.12, subd. (c)(2)(C)(iii), which disqualified him
from resentencing consideration.
         We will affirm this ruling.
                                        BACKGROUND
         In our 1999 decision affirming Reyes’s conviction (People v. Reyes (May 12, 1999,
B120499) [nonpub. opn.]), we reported that the trial evidence established the following
facts. On January 8, 1997, Pomona police officers observed Reyes, a felon, walking toward
a parked car. Reyes looked in the direction of the officers and then attempted to hide.
When the officers drove up to the parked car, Reyes fled and the officers chased him. At
one point, Reyes grabbed his waistband, stopped and threw a metallic object over a fence.
Officers heard metal striking something and Reyes was detained. Officers subsequently

1
         All further statutory references are to the Penal Code unless otherwise stated.
2
       The Deadly Weapons Recodification Act of 2010 repealed and recodified former
sections 12000 to 12809 without substantive change. (§§ 16000, 16005, 16010.) Former
section 12021, subdivision (a), was recodified without substantive change at section 29800,
subdivision (a) operative January 1, 2012. (Cal. Law Revision Com. com., 14 Deering’s
Ann. Pen. Code (2012 ed.) foll. § 29800, p. 921.)

                                                2
recovered a loaded nine-millimeter handgun behind the fence. Reyes testified and denied
having thrown anything or possessing a gun.
       In May 2014, after Proposition 36 was enacted, Reyes sought resentencing. On
June 1, 2015, the superior court (Judge William C. Ryan) denied Reyes’s petition to recall
his sentence on the ground that he “is legally ineligible as he was armed with a firearm.”
Reyes filed a timely notice of appeal.
                                         DISCUSSION
       1. The Act.
       People v. Johnson (2015) 61 Cal.4th 674, summarized the Act’s purpose and
provisions as follows:
       “Prior to its amendment by the Act, the Three Strikes law required that a defendant
who had two or more prior convictions of violent or serious felonies receive a third strike
sentence of a minimum of 25 years to life for any current felony conviction, even if the
current offense was neither serious nor violent. (Former §§ 667, subds. (d), (e)(2)(A),
1170.12, subds. (b), (c)(2)(A).)[3] The [prospective portions of the] Act[4] amended the
Three Strikes law with respect to defendants whose current conviction is for a felony that is
neither serious nor violent. In that circumstance, unless an exception applies, the defendant
is to receive a second strike sentence of twice the term otherwise provided for the current
felony, pursuant to the provisions that apply when a defendant has one prior conviction for a
serious or violent felony. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C); see §§ 667.5,
subd. (c) [list of violent felonies], 1192.7 [list of serious felonies], 1192.8 [additional serious
felonies for purposes of § 1192.7].)



3
       “The Three Strikes law was enacted twice in 1994, first by the Legislature (§ 667,
subds. (b)-(i); Stats. 1994, ch. 12, § 1, p. 71), and thereafter by the voters by way of
Proposition 184 (§ 1170.12; [citation]).” (Johnson, supra, 61 Cal.4th at p. 681, fn. 1.)
4
       The prospective provisions of the Act (§§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C)) apply to individuals whose “current” offense is committed after the
effective date of the Act.

                                                3
       “The Act’s exceptions to the new sentencing provisions relate to a defendant’s
current offense and prior offenses. If the current offense involves controlled substances and
specified findings are made concerning the quantity of controlled substances involved, or if
the current offense is among specified sex offenses, a defendant with two or more strikes
must be sentenced to a term of at least 25 years to life. [Fn. omitted.] (§§ 667,
subd. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) A third strike sentence is also
required if, ‘[d]uring the commission of the current offense, the defendant used a firearm,
was armed with a firearm or deadly weapon, or intended to cause great bodily injury to
another person.’ (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Finally, a
defendant will be excluded from the new sentencing provisions if he or she suffered a prior
conviction for . . . [certain offenses listed in § 667, subd. (e)(2)(C)(iv) and § 1170.12,
subd. (c)(2)(C)(iv) which are sometimes referred to as] ‘super strikes.’ [Citation, fn.
omitted.]
       “In addition to reducing the sentence to be imposed for some third strike felonies that
are neither violent nor serious, the Act provides a procedure by which some prisoners
already serving third strike sentences may seek resentencing in accordance with the new
sentencing rules. (§ 1170.126.) ‘An inmate is eligible for resentencing if . . . [¶] . . . [t]he
inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three
Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or
violent . . . .’ (§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced under the
new provisions, an inmate is disqualified from resentencing if any of the exceptions set forth
in section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C) are present.
(§ 1170.126, subd. (e).) In contrast to the rules that apply to sentencing, however, the rules
governing resentencing provide that an inmate will be denied recall of his or her sentence if
‘the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ (§ 1170.126, subd. (f).)” (Johnson, supra,
61 Cal.4th at pp. 680-682.)




                                                4
       2. The trial court correctly ruled that Reyes was ineligible for resentencing.
       Reyes’s ineligibility for resentencing depends on whether, during his violation of
former section 12021 for possessing a firearm, he was also armed with a firearm. (See
§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
       “ ‘The statutory elements of a violation of section 12021, subdivision (a)(1), . . . are
that a person, who has previously been convicted of a felony, had in his or her possession or
under his or her custody or control any firearm.’ [Citation.] Although the crime of
possession of a firearm by a felon may involve the act of personally carrying or being in
actual physical possession of a firearm . . . such an act is not an essential element of a
violation of former section 12021, subdivision (a), because a conviction of this offense may
also be based on a defendant’s constructive possession of a firearm. [Citations.] ‘To
establish constructive possession, the prosecution must prove a defendant knowingly
exercised a right to control the prohibited item, either directly or through another person.’
[Citation.] Hence, while the act of being armed with a firearm – that is, having ready access
to a firearm [citation] – necessarily requires possession of the firearm, possession of a
firearm does not necessarily require that the possessor be armed with it.” (People v.
Brimmer (2014) 230 Cal.App.4th 782, 795.)
       “[A]rming under the sentence enhancement statutes does not require that a defendant
utilize a firearm or even carry one on the body. A defendant is armed if the defendant has
the specified weapon available for use, either offensively or defensively. [Citations.] As a
recent Court of Appeal decision observed, ‘a firearm that is available for use as a weapon
creates the very real danger it will be used.’ [Citation.] Therefore, ‘[i]t is the availability –
the ready access – of the weapon that constitutes arming.’ [Citation.]” (People v. Bland
(1995) 10 Cal. 4th 991, 997, italics omitted (Bland).)
       As a result of these principles, “not every commitment offense for unlawful
possession of a gun necessarily involves being armed with the gun, if the gun is not
otherwise available for immediate use in connection with its possession, e.g., where it is
under a defendant’s dominion and control in a location not readily accessible to him at the
time of its discovery.” (People v. Elder (2014) 227 Cal.App.4th 1308, 1313-1314.)

                                                5
“A firearm can be under a person’s dominion and control without it being available for use.
For example, suppose a parolee’s residence (in which only he lives) is searched and a
firearm is found next to his bed. The parolee is in possession of the firearm, because it is
under his dominion and control. If he is not home at the time, however, he is not armed
with the firearm, because it is not readily available to him for offensive or defensive use.
Accordingly, possessing a firearm does not necessarily constitute being armed with a
firearm.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1030, fn. omitted.)
       Numerous cases have concluded that, under Proposition 36, a conviction for being a
felon in possession of a firearm disqualifies an inmate from resentencing if the nature of that
possession amounted to arming as defined in Bland. (See, e.g., People v. White (2014)
223 Cal.App.4th 512, 525-526 [defendant who tossed away handgun while running from
police found to be armed with a firearm and disqualified for purposes of resentencing];
People v. Hicks (2014) 231 Cal.App.4th 275, 280, 284 [after defendant detained at front
gate of apartment complex, gun was found inside his backpack in apartment he had been
visiting and he was found to be armed and disqualified from resentencing]; People v.
Brimmer, supra, 230 Cal.App.4th at pp. 796-797 [defendant who threatened his girlfriend
with shotgun during argument was found to be armed and not entitled to resentencing];
People v. Elder, supra, 227 Cal.App.4th at p. 1317 [police found defendant outside his
apartment and, inside, found gun on cabinet shelf and second gun in bedroom safe;
defendant was found to be armed with a firearm and thus ineligible for resentencing].)
       Hence, there need not be a facilitative nexus5 between an inmate’s “current offense”
(here being a felon in possession of a firearm) and the disqualifying factor of “being armed

5
        For enhancement purposes, “a defendant is armed if the gun has a facilitative nexus
with the underlying offense (i.e., it serves some purpose in connection with it).” (People v.
Brimmer, supra, 230 Cal.App.4th at pp. 794-795.) This concept of “facilitative nexus” was
explained by Bland, supra, 10 Cal.4th at p. 1002: “[F]or a defendant to be subject to
additional punishment for being armed with a firearm, California law requires the ‘arming’
to be ‘in the commission or attempted commission’ of the underlying felony. (§ 12022,
subd. (a)(1).) With respect to felony drug possession [for instance], a defendant is armed ‘in
the commission’ of that crime so long as the defendant had the firearm available for use in
furtherance of the drug offense at some point during the defendant’s possession of the
                                               6
during the commission of that offense.” “[U]nlike section 12022, which requires that a
defendant be armed ‘in the commission of’ a felony for additional punishment to be
imposed (italics added), the Act disqualifies an inmate from eligibility for lesser punishment
if he or she was armed with a firearm ‘[d]uring the commission of’ the current offense
(italics added). ‘During’ is variously defined as ‘throughout the continuance or course of’
or ‘at some point in the course of.’ (Webster’s 3d New Internat. Dict. (1993) p. 703.) Thus,
there must be a temporal nexus between the arming and the underlying felony, not a
facilitative one. The two are not the same. [Citation.]” (People v. Hicks, supra, 231
Cal.App.4th at pp. 283-284, italics added; accord People v. Brimmer, supra, 230
Cal.App.4th at pp. 798-799; People v. Osuna, supra, 225 Cal.App.4th at p. 1032.)
       Here, the only evidence supporting Reyes’s conviction for violating section 12021
was the testimony of the officers that they found a handgun behind the fence where they had
seen Reyes throw something. Reyes could not have been convicted without the jury’s
belief, beyond a reasonable doubt, that the gun was the object Reyes threw over the fence
and, therefore, that Reyes had the gun in his possession just before that. Hence, it is clear
that Reyes’s felon-in-possession conviction was based on the jury’s implicit conclusion that
“he had a firearm capable for ready use, during the commission of that offense, [therefore]
the armed with a firearm exclusion applies and, thus, [Reyes] is not entitled to resentencing
relief under the Act.” (People v. Brimmer, supra, 230 Cal.App.4th at p. 805, italic added.)
Because there was a temporal nexus between the arming and the underlying felony of being
a felon in possession of a firearm, the trial court properly ruled that Reyes was ineligible for
resentencing under Proposition 36.



drugs. Thus, by specifying that the added penalty applies only if the defendant is armed
with a firearm ‘in the commission’ of the felony offense, section 12022 implicitly requires
both that the ‘arming’ take place during the underlying crime and that it have some
‘facilitative nexus’ to that offense. Evidence that a firearm is kept in close proximity to
illegal drugs satisfies this ‘facilitative nexus’ REQUIREMENT: a firearm’s presence near a
drug cache gives rise to the inference that the person in possession of the drugs kept the
weapon close at hand for ‘ready access’ to aid in the drug offense.”

                                               7
                                      DISPOSITION
      The post-judgment order denying Reyes’s petition and declaring him ineligible for
resentencing is affirmed.



      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EDMON, P. J.


We concur:




                    LAVIN, J.




                    JONES, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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