Filed 2/6/17




                          CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                 F069140
        Plaintiff and Respondent,
                                                      (Super. Ct. Nos. F12910379 &
                 v.                                            F13906690)

JESSE EUGENE FRUTOZ,
                                                               OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
        Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                        -ooOoo-
       “Under the ‘Three Strikes’ law as originally enacted in 1994, an individual
convicted of any felony offense following two prior convictions for serious or violent
felonies was subject to an indeterminate term of life imprisonment with a minimum term
of no less than 25 years. [Citations.] In 2012, the electorate passed the Three Strikes
Reform Act of 2012 (Reform Act or Act) (Prop. 36, as approved by voters, Gen. Elec.
(Nov. 6, 2012)), which amended the law to reduce the punishment prescribed for certain
third strike defendants.” (People v. Conley (2016) 63 Cal.4th 646, 651.) “The Reform
Act changed the sentence prescribed for a third strike defendant whose current offense is
not a serious or violent felony. [Citation.] Under the Reform Act’s revised penalty
provisions, many third strike defendants are excepted from the provision imposing an
indeterminate life sentence (see Pen. Code, § 1170.12, subd. (c)(2)(A)) and are instead
sentenced in the same way as second strike defendants (see id., subd. (c)(2)(C)): that is,
they receive a term equal to ‘twice the term otherwise provided as punishment for the
current felony conviction’ (id., subd. (c)(1)). A defendant does not qualify for this
ameliorative change, however, if his current offense is . . . one in which he used a
firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily
injury (id., subd. (c)(2)(C)(iii)).” (Id. at pp. 652-653.) “The Act provides that these
disqualifying factors must be pleaded and proved by the prosecution. (Pen. Code,
§ 1170.12, subd. (c)(2)(C).)” (Id. at p. 653.)
       Here, Jesse Eugene Frutoz (defendant) had two or more prior serious and/or
violent felony convictions that were pled and proved, and his current offense was neither
a serious nor a violent felony. If that were the end of the story, defendant’s sentence
would be “twice the term otherwise provided as punishment for the current felony
conviction.” (Pen. Code,1 § 1170.12, subd. (c)(1).) In this case, however, the
prosecution pled and proved that during the commission of the current offense defendant

1      All further statutory references are to the Penal Code.


                                             2.
was armed with a firearm.2 As a result, defendant was sentenced to an indeterminate
term of life imprisonment. Defendant asserts error. He argues that he was charged with
possession of a firearm by a felon, a violation of section 29800, subdivision (a)(1) and, as
to that charge, the prosecutor may not plead and prove an allegation under section
1170.12, subdivision (c)(2)(C)(iii).3 He is incorrect. The People appropriately pled and
proved the clause (iii) factor as to the charge of felon in possession of a firearm.
                       FACTS AND PROCEDURAL HISTORY
                    Fresno County Superior Court case No. F12910379
       On December 20, 2012, defendant, then an inmate at the Fresno County Annex
Jail, was found to have marijuana hidden in a sock. He subsequently pled no contest to
possession of marijuana in a jail facility. (§ 4573.6.) As part of his plea agreement, he
admitted having suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)) and having served four prior prison terms (§ 667.5, subd. (b)).
                    Fresno County Superior Court case No. F13906690
       Sherrie Phillips had previously let defendant stay in the tent she shared with her
partner in a homeless camp, but eventually she told him he was no longer welcome.
They had an argument that got out of hand and defendant told Phillips not to let him
catch her alone, but Phillips did not take the threat seriously.

2      Defendant’s jury made the arming finding under both section 667, subdivision
(e)(2)(C)(iii) and section 1170.12, subdivision (c)(2)(C)(iii). Although each contains the
same language, defendant refers only to the latter provision. For convenience, we do the
same, although our analysis and conclusion apply equally to both. For brevity, we
sometimes refer to the statutory provisions collectively as “clause (iii).”
3        Defendant refers to clause (iii) as an “enhancement.” It is not. As our quotation
of the California Supreme Court’s description in People v. Conley makes clear, clause
(iii) is part of the three strikes law as modified by the Reform Act. It has long been
settled that the three strikes law “articulates an alternative sentencing scheme for the
current offense rather than an enhancement. [Citations.]” (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 527; see, e.g., People v. Nobleton (1995) 38
Cal.App.4th 76, 81.)


                                              3.
       On July 7, 2013, Phillips was “dumpster diving” in Fresno when she saw
defendant on his bicycle. Phillips talked with defendant in the alley for 10 to 15 minutes,
then said she had to go. She turned to pick up something from the ground and, when she
stood back up, she felt a “bump.” Defendant was looking at her with a strange
expression. In his hand was a small buck knife. Phillips realized she had been cut just
above the elbow. She subsequently went to the hospital, where her wound was closed
with staples.
       Early on the morning of July 15, 2013, Fresno Police Officers Soto and
Douangmala were on patrol when they saw defendant riding a bicycle without a
headlight. Told to stop, defendant directed the officers’ attention elsewhere and rode off.
When the officers caught up to him, defendant threw down his bicycle and a nine-
millimeter handgun that came from his front waistband area. He ran. Defendant
eventually was located and taken into custody. The gun contained a fully inserted, but
unloaded, magazine.
       A jury subsequently convicted defendant of assault with a deadly weapon (§ 245,
subd. (a)(1); count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2),
and misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1); count 3).
As to count 2, the jury additionally found defendant was personally armed with a firearm
during commission of the offense. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd.
(c)(2)(C)(iii).) Defendant admitted having suffered two prior serious felony convictions
that were also strikes (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)) and having
served five prior prison terms (§ 667.5, subd. (b)). The court declined defendant’s
“invitation” to dismiss his prior strike convictions, and sentenced him to consecutive
terms of 25 years to life in prison on counts 1 and 2, plus a total of 13 years pursuant to
sections 667, subdivision (a)(1) and 667.5, subdivision (b). The court imposed an
additional consecutive term of two years in case No. F12910379.



                                             4.
                                      DISCUSSION4
       Defendant contends the finding with respect to count 2, that he was armed with a
firearm pursuant to section 1170.12, subdivision (c)(2)(C)(iii), must be stricken as an
illegal sentence, because it is inapplicable to a conviction under section 29800,
subdivision (a)(1). Defendant acknowledges a number of courts have rejected this or
similar arguments in the context of eligibility for resentencing under section 1170.126
(e.g., People v. Hicks (2014) 231 Cal.App.4th 275, 279-280, 283-284; People v. Brimmer
(2014) 230 Cal.App.4th 782, 790, 797-799; People v. Elder (2014) 227 Cal.App.4th
1308, 1311, 1313-1314; People v. Blakely (2014) 225 Cal.App.4th 1042, 1048, 1051-
1052; People v. Osuna (2014) 225 Cal.App.4th 1020, 1026-1027, 1029-1032 (Osuna);
People v. White (2014) 223 Cal.App.4th 512, 519, 526), but contends these cases either
do not apply to an initial sentencing decision or are wrongly decided.5




4     Our discussion involves only case No. F13906690, as defendant raises no issues
concerning case No. F12910379.
5       The Reform Act “also created a postconviction release proceeding whereby a
prisoner who is serving an indeterminate life sentence imposed pursuant to the three
strikes law for a crime that is not a serious or violent felony and who is not disqualified,
may have his or her sentence recalled and be sentenced as a second strike offender unless
the court determines that resentencing would pose an unreasonable risk of danger to
public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-
168.) Although section 1170.126, subdivision (e)(2) renders ineligible for resentencing
any inmate whose current sentence was imposed for any of the “offenses” appearing in
clause (iii), it does not contain the same pleading and proof requirements that exist where
an initial sentencing for a current offense is at issue. (Osuna, supra, 225 Cal.App.4th at
p. 1033; accord, People v. White, supra, 223 Cal.App.4th at p. 527; People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303, fn. 26 (Kaulick).) Since an initial
sentencing for a current offense was at issue in the present case, the clause (iii) factor was
appropriately plead in the charging document and submitted to the jury for its
determination, upon instructions the People had the burden of proving the allegation
beyond a reasonable doubt. (See generally Apprendi v. New Jersey (2000) 530 U.S. 466,
490; cf. People v. Blakely, supra, 225 Cal.App.4th at pp. 1060-1063.)

                                              5.
       In Osuna, supra, 225 Cal.App.4th 1020, we rejected the various arguments
defendant now makes as to why the arming provision of clause (iii) should be held
inapplicable to the crime of being a felon in possession of a firearm.
       Citing People v. Bland (1995) 10 Cal.4th 991, 997 (Bland), we observed that
“ ‘[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 determined
the electorate intended the phrase to have that meaning in clause (iii) (Osuna, supra, 225
Cal.App.4th at p. 1029). We stated:

               “Defendant’s current conviction was for violating [former] section
       12021, subdivision (a)(1) [now section 29800, subdivision (a)(1)], which
       makes it a felony for a person previously convicted of a felony to own,
       purchase, receive, or have in his or her possession or under his or her
       custody or control, any firearm. The elements of this offense are conviction
       of a felony and ownership or knowing possession, custody, or control of a
       firearm. [Citations.] ‘A defendant possesses a weapon when it is under his
       dominion and control. [Citation.] A defendant has actual possession when
       the weapon is in his immediate possession or control. . . . [Citations.]’
       [Citation.] ‘Implicitly, the crime is committed the instant the felon in any
       way has a firearm within his control.’ [Citation.]

              “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.” (Osuna, supra, 225 Cal.App.4th at pp. 1029-
       1030, fn. omitted.)
       Based on the jury instructions given in this case, we know defendant’s jury found,
beyond a reasonable doubt, defendant carried the gun and had it available for offensive or
defensive use. Thus, factually defendant was “armed with a firearm” within the meaning
of clause (iii).




                                             6.
       Defendant does not expressly dispute this. Rather, he points to Bland’s
interpretation of section 12022 as support for the proposition the arming must take place
during the underlying crime and have some facilitative nexus to that offense, a situation
that does not exist where mere unlawful possession of a firearm is concerned.
       We again answered this claim in Osuna. We explained:

       “[Defendant] concludes one cannot be armed with a firearm during the
       commission of possession of the same firearm.

              “Defendant would be correct if we were concerned with imposition
       of an arming enhancement — an additional term of imprisonment added to
       the base term, for which a defendant cannot be punished until and unless
       convicted of a related substantive offense. [Citations.]. . . [¶] . . . [¶]

              “As Bland makes clear, for a defendant to be ‘armed’ for purposes of
       section 12022’s additional penalties, he or she must have a firearm
       ‘available for use to further the commission of the underlying felony.’
       (Bland, supra, 10 Cal.4th at p. 999, italics added.) ‘[W]hen the underlying
       felony is a continuing offense, it is sufficient if the defendant has a gun
       available at any time during the felony to aid in its commission. [Citation.]’
       [Citation.]

               “Having a gun available does not further or aid in the commission of
       the crime of possession of a firearm by a felon. Thus, a defendant
       convicted of violating section [29800, subdivision (a)(1)] does not,
       regardless of the facts of the offense, risk imposition of additional
       punishment pursuant to section 12022, because there is no ‘facilitative
       nexus’ between the arming and the possession. However, unlike 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 ‘during 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.’ [Citation.] In
       other words, it requires a temporal nexus between the arming and the
       underlying felony, not a facilitative one. The two are not the same. (Bland,
       supra, 10 Cal.4th at p. 1002 [‘ “in the commission” of’ requires both that
       ‘ “arming” ’ occur during underlying crime and that it have facilitative
       nexus to offense].)




                                             7.
              “In re Pritchett (1994) 26 Cal.App.4th 1754 illustrates the
       difference. Pritchett struck his former girlfriend on the head with the barrel
       of a sawed-off shotgun. He was convicted of possessing the gun under
       former section 12020, subdivision (a), and his sentence was enhanced,
       pursuant to section 12022.5, subdivision (a), for use of the firearm in
       commission of that offense. [Citation.] On appeal, the People argued the
       enhancement was valid, because Pritchett used the shotgun to strike the
       victim in the commission of possessing the gun. [Citation.] The Court of
       Appeal disagreed, explaining: ‘Although Pritchett used the shotgun as a
       club during his possession of it, he did not use it “in the commission” of his
       crime of possession. Possession was complete without use of the shotgun.
       In addition to possessing it, he did use it, but using it as a club in no way
       furthered the crime of possession.’ [Citation.]

               “Following this reasoning, defendant was armed with a firearm
       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 Act uses the phrase ‘[d]uring the
       commission of the current offense,’ and not in the commission of the
       current offense (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)),
       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.” (Osuna, supra,
       225 Cal.App.4th at pp. 1030-1032.)
       Osuna dealt with eligibility for resentencing under section 1170.126, not
imposition of an initial sentence under the three strikes law as modified by the Reform
Act. Nevertheless, we find it applicable, despite its references to imposition of additional
punishment not being at issue. Even where the initial sentence is concerned, clause (iii)
does not result in the imposition of additional punishment in the sense an enhancement
such as section 12022 does. Rather, the pleading and proof of one of the circumstances
enumerated in clause (iii) abolishes the Reform Act’s presumption a second-strike
sentence will be imposed (see Kaulick, supra, 215 Cal.App.4th at p. 1303, fn. 26), and
instead results in imposition of an indeterminate life sentence under the three strikes
law’s alternative sentencing scheme. Moreover, section 1170.126, subdivision (e)(2)



                                             8.
expressly refers to clause (iii) “offenses” as disqualifying an inmate from resentencing
under the Reform Act. Since that Act both added clause (iii) to the three strikes law and
enacted section 1170.126 (see initiative measure Prop. 36, §§ 2, 4, 6, approved by voters
Nov. 6, 2012, eff. Nov. 7, 2012), we know of no reason to breach established rules of
statutory construction and interpret clause (iii) — or voters’ intent with respect thereto —
differently, depending on whether imposition of an initial sentence or eligibility for
resentencing is concerned (see People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled
on another ground in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 &
disapproved on another ground in People v. Escobar (1992) 3 Cal.4th 740, 749-751 &
fn. 5).
          Defendant contends cases such as Osuna are wrongly decided, and erroneously
distinguish “during” from “in the commission of.” We are not persuaded. Defendant
also suggests eligibility for resentencing is distinguishable from the imposition of an
initial sentence — making such cases of little value here — because trial courts have
“considerably more discretion” in determining whether a defendant is eligible for
resentencing than in their initial sentencing decisions. To the contrary, it is only after a
trial court determines an inmate’s eligibility for resentencing that the court exercises
discretion in determining whether resentencing that individual would pose an
unreasonable risk of danger to public safety. (§ 1170.126, subds. (e) & (f); People v.
Bradford (2014) 227 Cal.App.4th 1322, 1336-1337.)
          Defendant argues possession of a firearm by a felon is not inherently dangerous.
As the Court of Appeal explained in People v. Elder, supra, 227 Cal.App.4th at page
1314: “While, as defendant asserts, possession of a gun of itself is not criminal, a felon’s
possession of a gun is not a crime that is merely malum prohibitum. As we stated nearly
20 years ago, ‘public policy generally abhors even momentary possession of guns by
convicted felons who, the Legislature has found, are more likely to misuse them.’
[Citation.]” Thus, just as voters intended the arming provision of clause (iii) to disqualify

                                               9.
from resentencing, pursuant to section 1170.126, subdivision (e)(2), a defendant who was
convicted of violating section 29800, subdivision (a)(1) when he or she also had the
firearm he or she was convicted of possessing available for offensive or defensive use
(Osuna, supra, 225 Cal.App.4th at p. 1035), so too they intended that provision to subject
a third strike offender to an indeterminate life term, pursuant to sections 667, subdivision
(e)(2) and 1170.12, subdivision (c)(2), under the same circumstances.6
                                      DISPOSITION
        The judgments are affirmed.


                                                                 _____________________
                                                                           DETJEN, J.
WE CONCUR:


    _____________________
    HILL, P.J.


    _____________________
    LEVY, J.




6      Defendant’s reliance on the rule of lenity is unavailing. Contrary to defendant’s
apparent belief, that rule — which generally requires giving a criminal defendant the
benefit of every reasonable doubt on questions of statutory interpretation — does not
apply merely because there may be some ambiguity in statutory language. (People v.
Blakely, supra, 225 Cal.App.4th at pp. 1054-1055.) Rather, “ ‘the rule applies “ ‘only if
the court can do no more than guess what the legislative body intended; there must be an
egregious ambiguity and uncertainty to justify invoking the rule.’ ” [Citation.]’
[Citation.] No such uncertainty exists here.” (People v. Nuckles (2013) 56 Cal.4th 601,
611.)


                                            10.
