Filed 2/4/15 P. v. Walters 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Placer)


THE PEOPLE,                                                                                  C075451

                   Plaintiff and Respondent,                                      (Super. Ct. No. SCR2471)

          v.

LOUIE WALTERS,

                   Defendant and Appellant.




          Defendant Louie Walters appeals from the trial court’s order denying his petition
for resentencing pursuant to Penal Code section 1170.1261 because he was armed during
the commission of his current offense. He contends the trial court’s finding that he was
disqualified from resentencing violated his right to due process and the rules of statutory
construction, and also that there is insufficient evidence to support the finding. We shall
affirm.




1   Undesignated statutory references are to the Penal Code.

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                                     BACKGROUND
        We take the facts of defendant’s current offense from our prior opinion affirming
his conviction.
        On September 26, 1996, two railroad workers saw two transients, defendant and
another man, arguing near the Roseville railroad yard. The workers heard a gunshot.
Defendant bent down and scrambled to pick up a revolver from the ground. He shoved
the gun into his belt and ran off, limping. The other man remained at the scene and
cooperated with police officers who arrived to investigate.
        Defendant was found about 15 minutes after the officers were summoned. He was
lying in some weeds, behind a dumpster, about one-quarter of a mile away. When the
officers approached him he raised up on all fours. A short standoff ensued; the officers
told him to lay flat on the ground and to put his hands out to his sides. Defendant did not
obey; at one point he reached toward his waist. Roseville Police Officer Frank Ortiz
shouted at him not to do it and to put his hands up on the ground. After a minute
defendant complied with the officer’s commands.
        The revolver was in defendant’s waist band. He had a gunshot wound in his leg.
He told Officer Ortiz that he had shot himself. He smelled of alcohol and gave a false
name.
        A jury convicted defendant of felon in possession of a firearm (former § 12021,
subd. (a))2 and misdemeanor resisting an officer (§ 148, subd. (a).) The trial court
sustained two strike allegations and sentenced defendant to 25 years to life. A panel of
this court affirmed defendant’s conviction on January 12, 1998.




2 Former section 12021 was subsequently repealed and reenacted without substantive
change as section 29800, subdivision (a)(1). (People v. Sanders (2012) 55 Cal.4th 731,
734, fn.2.)

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       Defendant filed a petition for resentencing pursuant to section 1170.126 on
June 18, 2013. He argued that the armed disqualification applied only to sustained
arming enhancements, rendering him eligible for resentencing.
       In a written opinion, the trial court found the disqualification from resentencing
was not limited to instances where an armed enhancement was sustained. It found,
“[w]hile the possession or use of the firearm constitutes the crux of the conviction which
[defendant] sustained herein, the facts unequivocally show that the elements of the crime
also fit the disqualifying factors of subsection (iii).”
                                        DISCUSSION
                                                I
       Defendant contends the denial of his petition violates his due process rights
because felon in possession of a firearm requires a tethering offense to support an armed
finding and no sentence was imposed for him being armed during the commission of the
offense. We disagree.
       A.
       Section 1170.126 allows defendants serving a life term for a third strike to petition
for resentencing. (§ 1170.126, subd. (b).) Eligibility for resentencing is initially limited
to defendants serving life terms for felonies that are neither serious nor violent.
(§ 1170.126, subd. (e)(1).) Other factors can render a defendant ineligible for
resentencing. One of the disqualifying factors, as cross-referenced in section 1170.126,
subdivision (e)(2), renders an offense ineligible for recall of sentence 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).)
       Defendant’s tethering claim has been rejected by both courts that considered it
(People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314 (Elder); People v. Osuna
(2014) 225 Cal.App.4th 1020, 1032 (Osuna)), while two other courts of appeal have held

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that felon in possession is subject exclusion from section 1170.126 resentencing when the
defendant was armed during the offense. (People v. Blakely (2014) 225 Cal.App.4th
1042, 1054; People v. White (2014) 223 Cal.App.4th 512, 524.)
       Defendant’s tethering contention is based on section 12022, which provides an
enhancement for being armed with a firearm or personally using a deadly weapon “ ‘in
the commission or attempted commission’ of the underlying felony.” (People v. Bland
(1995) 10 Cal.4th 991, 1002; see also § 12022, subds. (a)(1), (b)(1).) Osuna, which
addressed ineligibility based on being armed during the commission of felon in
possession of a firearm (Osuna, supra, 225 Cal.App.4th at pp. 1027-1206), illustrates
why defendant’s contention must fail. “[D]efendant was armed with a [deadly weapon]
during his possession of the gun, but not ‘in the commission’ of his crime of possession.
There was no facilitative nexus; his having the firearm available for use did not further
his illegal possession of it. There was, however, a temporal nexus. Since the [Three
Strikes Reform] Act [of 2012] uses the phrase ‘[d]uring the commission of the current
offense,’ and not in the commission of the current offense [Citations], and since at issue
is not the imposition of additional punishment but rather eligibility for reduced
punishment, we conclude the literal language of the Act disqualifies an inmate from
resentencing if he or she was armed with a firearm during the unlawful possession of that
firearm.” (Id. at p. 1032.)
       We find this and the reasoning of the other cases implicitly or explicitly rejecting
defendant’s contention to be persuasive. Applying these decisions, we find the armed
exclusion can apply to felon in possession of a deadly weapon without another tethering
offense.
       B.
       Defendant’s other contention is based on an erroneous reading of section
1170.126. According to defendant, he cannot be disqualified under this provision as he



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was never sentenced “for being armed with, or using or intending to inflict great bodily
injury. Instead, sentence was imposed for . . . being a felon in possession of a gun.”
       As pertinent here, section 1170.126 states: “(e) An inmate is eligible for
resentencing if: [¶] . . . [¶] (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.” As described
above, this incorporates the language regarding armed “[d]uring the commission of the
current offense” found in sections 667, subdivision (e)(2)(C)(iii) and 1170.12,
subdivision (c)(2)(C)(iii). Ineligibility is not limited to when a defendant is sentenced for
being armed or any of the other factors described in sections 667, subdivision
(e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). Rather, if the trial court finds that
defendant was armed, used a deadly weapon, or inflicted great bodily injury during the
commission of the offense for which he seeks resentencing, then defendant is ineligible
for resentencing.3 Since the trial court made this finding in rejecting defendant’s petition,
we accordingly reject his contention.
                                               II
       Defendant contends the trial court’s finding that he was disqualified misconstrues
section 1170.126. Defendant observes that conviction for felon in possession of a firearm
does not categorically disqualify a defendant from resentencing under section 1170.126
as mere possession of a firearm does not equate with being armed. Defendant also finds
that the plain meaning of the term armed “[d]uring the commission of the current
offense” requires a tethering offense before disqualifying a defendant from resentencing.



3 Defendant’s reliance on People v. Atkins (2014) 229 Cal.App.4th 536 is inapposite as
review was granted in that case after briefing was concluded. (See People v. Atkins,
supra, (review granted Nov. 12, 2014, S221786).)

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To the extent there is any ambiguity in the relevant statutory language, defendant claims
that the rule requiring construction of statutory terms in context (see People v. Elmore
(2014) 59 Cal.4th 121, 139-140) and the rule of lenity (see People v. Douglas (2000)
79 Cal.App.4th 810, 815) compel the same conclusion.
       As already noted, the argument that felon in possession of a firearm requires a
tethering offense before a defendant can be disqualified under the armed during the
commission provision of section 1170.126 has been rejected by the courts that have
considered it. The cases rejecting this claim relied on the clear language of section
1170.126, subdivision (e)(2) and the statutes referenced therein. (See, Elder, supra,
227 Cal.App.4th at p. 1312; Osuna, supra, 225 Cal.App.4th at p. 1034 [“We do not
regard the language of section 1170.126, subdivision (e)(2) as indicating an intent to
require a tethering offense”].) “ ‘When statutory language is clear and unambiguous,
there is no need for construction and courts should not indulge in it.’ [Citations.]”
(People v. Benson (1998) 18 Cal.4th 24, 30.) Following Elder and Osuna, we find the
clear language of section 1170.126, subdivision (e)(2) does not require a tethering offense
to disqualify from resentencing a defendant convicted of felon in possession of a firearm.
                                             III
       Defendant’s final contention is that there is insufficient evidence to support a
finding that he was ineligible based on his being armed during the commission of felon in
possession of a firearm.
       “The eligibility criteria here refer to something that occurs ‘[d]uring the
commission of the current offense,’ that being ‘the defendant used a firearm, was armed
with a firearm or deadly weapon, or intended to cause great bodily injury to another
person.’ [Citation.] By referring to those facts attendant to commission of the actual
offense, the express statutory language requires the trial court to make a factual
determination that is not limited by a review of the particular statutory offenses and
enhancements of which petitioner was convicted.” (People v. Bradford (2014)

                                              6
227 Cal.App.4th 1322, 1332.) In order to determine whether a defendant is disqualified
from resentencing, a trial court examines the “conduct that occurs during the commission
of an offense.” (Id. at p. 1333.) The trial court must therefore “consider the nature of a
petitioner’s prior conviction. Specifically, the court must consider whether, during the
commission of an offense that has been previously adjudicated at the time of the
resentencing proceedings, ‘the defendant used a firearm, was armed with a firearm or
deadly weapon, or intended to cause great bodily injury to another person.’ [Citations.]”
(Id. at pp. 1338-1339.) The court may look at “the record of conviction,” as that term is
defined in the cases addressing whether a prior conviction is a serious felony. (Id. at
p. 1338; see People v. Woodell (1998) 17 Cal.4th 448 (Woodell); People v. Guerrero
(1988) 44 Cal.3d 343.) This includes both the trial and the appellate court record of the
conviction, including any appellate opinion in the case. (Woodell, at p. 456.)
       Recognizing that Woodell allows reliance on prior appellate opinions in some
circumstances, defendant contends such circumstances are not present in this case, as
reliance on our prior opinion effectively allows for the relitigation of the facts of the prior
offense, which he asserts is forbidden under Woodell. According to defendant, relying on
our prior opinion to find that he was armed effectively relitigated the facts of his
conviction because the matter of whether he was armed was never at issue in the trial or
the original appeal. He claims the statement of the facts in our prior opinion contains
several hearsay statements, including “the reports of the railroad workers, [and] the
statement of a Roseville police officer that [defendant] had a gun in his waistband and
that [defendant] claimed to have shot himself.” Since there was no other evidence in the
record of conviction supporting an armed finding, defendant concludes there was
insufficient evidence to support the trial court’s finding.
       The Supreme Court “allow[s] recourse to the record of conviction, but no further,
to promote the efficient administration of justice and to preclude the relitigation of the
circumstances of the crime. [Citation.] Including the appellate opinion as part of the

                                               7
record of conviction promotes efficiency and does not relitigate stale factual questions.”
(Woodell, supra, 17 Cal.4th at p. 456.) Likewise, “the appellate opinion itself,
representing the action of a court, clearly comes within the exception to the hearsay rule
for official records. [Citations.]” (Id. at p. 458; see Evid. Code, § 1280.) Defendant’s
contentions are therefore without merit.
       A defendant is “armed” within the meaning of section 12022, subdivision (a)(1)
“if the defendant has the specified weapon available for use, either offensively or
defensively. [Citations.] . . . ‘[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.’ ” (People v. Bland, supra,
10 Cal.4th at p. 997.) “[A]rming under the sentence enhancement statutes does not
require that a defendant utilize a firearm or even carry one on the body.” (Ibid.)
       The facts as stated in our opinion show that defendant was found with a gun in his
waistband, and that the gun had recently discharged, shooting him in the foot. Carrying a
loaded firearm in one’s waistband is compelling evidence that defendant was armed
during the commission of felon in possession of a firearm.
                                       DISPOSITION
       The trial court’s order denying the petition for resentencing is affirmed.




                                              BLEASE                     , Acting P. J.


We concur:


          NICHOLSON                 , J.


          HULL                      , J.


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