Filed 9/7/16 P. v. Terry CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B268934

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA043004)
         v.

DEWEY STEVEN TERRY III,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.


                   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, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr. and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and
Respondent.
                                             ____________________
                                     INTRODUCTION


       Dewey Steven Terry III appeals from an order denying his petition for
resentencing under the Three Strikes Reform Act of 2012, enacted by the voters as
Proposition 36 (Pen. Code, § 1170.126).1 Terry argues the trial court erred in
determining he was ineligible for resentencing because he was armed with a firearm
during the commission of his current offense. We affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND


       In 1996 a jury convicted Terry of possession of a firearm by a felon (former
§ 12021, subd. (a)(1)),2 based on evidence that he fired six gunshots into the home of
Isora Harrell.3 The trial court in that case found Terry had two prior serious or violent
felony convictions, a 1984 conviction for assault and a 1988 conviction for voluntary
manslaughter, and sentenced Terry under the three strikes law (§§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(i)) to an indeterminate term of 25 years to life.
       On November 6, 2012 the electorate passed Proposition 36, which “authorizes
prisoners serving third-strike sentences whose ‘current’ offense (i.e., the offense for
which the third-strike sentence was imposed) is not a serious or violent felony to petition
for recall of the sentence and for resentencing as a second-strike case.” (People v.
Johnson (2015) 61 Cal.4th 674, 679-680; see People v. Superior Court (Kaulick) (2013)


1
       Statutory references are to the Penal Code.
2
      “Penal Code former section 12021, subdivision (a), is now section 29800,
subdivision (a), which became effective January 1, 2012. [Citation.] The Law Revision
Commission comments to section 29800 make clear that the provision was carried over
‘without substantive change.’” (People v. Correa (2012) 54 Cal.4th 331, 334, fn. 1.)
3
       The jury was unable to reach a verdict on additional charges of assault with a
firearm (§ 245, subd. (a)(2)) and shooting at an inhabited dwelling (§ 246), and the trial
court declared a mistrial on those counts.

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215 Cal.App.4th 1279, 1286 [Proposition 36 “provides a means whereby prisoners
currently serving sentences of 25 years to life for a third felony conviction which was not
a serious or violent felony may seek court review of their indeterminate sentences and,
under certain circumstances, obtain resentencing as if they had only one prior serious or
violent felony conviction”].) Proposition 36 went into effect November 7, 2012
(Johnson, at p. 679), and the following month Terry filed a petition for recall of his
sentence and resentencing.
       The People opposed Terry’s petition, arguing that, under section 667,
subdivision (e)(2)(C)(iii), and section 1170.12, subdivision (c)(2)(C)(iii), Terry was not
eligible for resentencing because he was armed with a firearm during the commission of
his current offense. (See § 1170.126, subd. (e)(2) [an inmate is not eligible for
resentencing if the current sentence was imposed for any offense appearing in §§ 667,
subd. (e)(2)(C)(i)-(iii), or 1170.12, subd. (c)(2)(C)(i)-(iii)]; § 667, subd. (e)(2)(C)(iii)
[“[d]uring the commission of the current offense, the defendant . . . was armed with a
firearm”]; § 1170.12, subd. (c)(2)(C)(iii) [same].) The People submitted excerpts from
the testimony at Terry’s trial, including Harrell’s testimony that she saw Terry hold a gun
up to the screen door of her apartment and fire six shots inside.
       In reply, Terry argued that to be ineligible for resentencing “offenders must not
only arm themselves, but also must commit some other offense, apart from the arming
itself.” For this reason, he contended, his conviction for firearm possession did not
disqualify him from resentencing.
       On December 1, 2015, after holding an eligibility hearing, the trial court denied
Terry’s petition. The court found that, under sections 1170.126, subdivision (e)(2), and
667, subdivision (e)(2)(C)(iii), Terry was ineligible for resentencing because he was
armed with a firearm during the commission of his current offense. Terry timely
appealed.




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                                       DISCUSSION


       “A defendant currently serving an indeterminate life sentence pursuant to the three
strikes law is disqualified from resentencing [under Proposition 36] if he or she has an
enumerated disqualifying factor found in section 1170.126, subdivision (e).” (People v.
Hicks (2014) 231 Cal.App.4th 275, 282 (Hicks); see § 1170.126, subd. (e).) One such
factor is that the defendant’s current sentence was imposed for any offense appearing in
sections 667, subdivision (e)(2)(C)(i)-(iii), or 1170.12, subdivision (c)(2)(C)(i)-(iii).
(§ 1170.126, subd. (e)(2).) “Thus, an inmate is disqualified from resentencing if, inter
alia, ‘[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.’” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029 (Osuna), quoting
§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii); accord, Hicks, at p. 282.)
       “‘[A]rmed with a firearm’ has been statutorily defined and judicially construed to
mean having a firearm available for use, either offensively or defensively,” and we
presume the electorate intended “armed with a firearm” to have that meaning under
Proposition 36. (Osuna, supra, 225 Cal.App.4th at p. 1029; accord, People v. Blakely
(2014) 225 Cal.App.4th 1042, 1051-1052 (Blakely); see People v. White (2014) 223
Cal.App.4th 512, 524 [“[t]he California Supreme Court has explained that ‘“[i]t is the
availability – the ready access – of the weapon that constitutes arming”’”].) The facts of
this case, in particular Harrell’s testimony that she saw Terry fire six gunshots into her
home, support the trial court’s finding that Terry was “armed with a firearm” within the
meaning of Proposition 36, and Terry does not dispute this. (See People v. Brimmer
(2014) 230 Cal.App.4th 782, 796 [inmate ineligible for resentencing where witnesses
testified they saw him in actual physical possession of shotgun]; Osuna, at pp. 1026-1027
[“where there are facts in the record of conviction that show an inmate was ‘armed with a
firearm’ – had the firearm available for immediate offensive or defensive use – during the
commission of his or her current offense, the inmate is disqualified from resentencing
under [Proposition 36]”].)

                                               4
       What Terry disputes is that, within the meaning of Proposition 36, he was armed
with a firearm “during the commission of the current offense.”4 Citing the language of
the statute, “basic principles of grammar,” “the structure of the statute,” and “Proposition
36’s ‘overarching purpose,’” Terry argues that the circumstance of being armed with a
firearm “must attach to the current offense as an addition and not just be a part of the
current offense.” Thus, according to Terry, having been armed with a firearm will
disqualify an inmate from resentencing under Proposition 36 only if that fact is “tethered”
to, or has a “facilitative nexus” with, a current offense other than, or in addition to, the
offense of possessing a firearm as a felon. In other words, Terry asserts that one cannot
be armed with a firearm “during the commission of the current offense” if the current
offense is possession of a firearm.
       There are two serious problems with Terry’s argument. First, being armed with a
firearm is not an element of the offense of possession of a firearm as a felon. (See People
v. Conley (2016) 63 Cal.4th 646, 659, [“[c]ase law holds that possession of a firearm does
not necessarily imply being armed” and “arming is not an element of the offense” of
possession of a firearm by a felon]; Blakely, supra, 225 Cal.App.4th at p. 1052 [the
elements of the offense are “conviction of a felony and ownership or knowing possession,
custody, or control of a firearm,” and “[a] firearm can be under a person’s dominion and
control without it being available for use”]; People v. White, supra, 223 Cal.App.4th at p.
524 [“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”].) “For example, a
convicted felon may be found to be a felon in possession of a firearm if he or she
knowingly kept a firearm in a locked offsite storage unit even though he or she had no
ready access to the firearm and, thus, was not armed with it.” (People v. White, at p. 524;



4
      Terry’s appeal thus raises a question of statutory interpretation we review de novo.
(See People v. Bradford (2014) 227 Cal.App.4th 1322, 1332; People v. Zeigler (2012)
211 Cal.App.4th 638, 650.)

                                               5
accord, People v. Conley, at p. 659.) Thus, a central supposition of Terry’s argument is
incorrect.
       Second, as Terry acknowledges, courts have repeatedly and unanimously rejected
his argument. (See People v. White (2016) 243 Cal.App.4th 1354, 1362-1364 [rejecting
the argument that the current offense of firearm possession cannot support a finding that
the inmate was armed during its commission]; Hicks, supra, 231 Cal.App.4th at pp. 283-
284 [rejecting the argument that “a court considering a petition for resentencing is
precluded from finding the defendant was armed during the commission of the offense if
the only current felony conviction was being a felon in possession” and that “there must
be an underlying felony to which the arming is ‘tethered’”]; People v. Brimmer, supra,
230 Cal.App.4th at p. 797 [rejecting the argument that “possessory offenses can never fall
under the armed with a firearm exclusion . . . without another separate or tethering
offense”]; People v. Elder (2014) 227 Cal.App.4th 1308, 1312 [rejecting the argument
that “ineligibility for resentencing for being ‘armed’ . . . must require something beyond
the substantive offense of possession itself”]; Osuna, supra, 225 Cal.App.4th at p. 1027
[“being ‘armed with a firearm’ ‘during the commission of the current offense,’ for
purposes of [Proposition 36], does not require the possession be ‘tethered’ to, or have
some ‘facilitative nexus’ to, an underlying felony”]; People v. White, supra, 223
Cal.App.4th at p. 527 [rejecting the argument that “the armed-with-a-firearm exclusion
‘requires that the arming be anchored or tethered to an offense which does not include
possession’”]; see also Blakely, supra, 225 Cal.App.4th at p. 1054 [“the phrase ‘[d]uring
the commission of the current offense, the defendant . . . was armed with a firearm . . . ,’
. . . [which] disqualifies an inmate from resentencing pursuant to section 1170.126,
subdivision (e)(2), extends to situations in which the defendant was convicted of
violating section 12021 if the defendant had the firearm he or she was convicted of
possessing available for use, either offensively or defensively”].) Terry does not
persuade us to depart from this line of authority.




                                              6
                                    DISPOSITION


      The December 1, 2015 order denying Terry’s petition for resentencing under
section 1170.126 is affirmed.




             SEGAL, J.


We concur:




             ZELON, Acting P. J.




             GARNETT, 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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