Filed 10/3/16 P. v. Carter CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B267570

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA134740)
         v.

CALVIN CARTER,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County, William
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, Noah P. Hill and William
H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.



                                   _______________________________
       Appellant Calvin Carter was convicted in 1996 of being a felon in possession of a
firearm (Pen. Code, § 12021, subd. (a)(1)). Based on his prior convictions, he was
sentenced to a term of twenty-five years to life. In January 2013, Carter petitioned for
recall of his sentence; the trial court issued an order to show cause but denied the petition
on October 5, 2015. Finding no error, we affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND
       Carter was convicted after a jury trial of being a felon in possession of a firearm.
(Pen. Code, § 12021(a)(1).) 1 During a chase by deputy sheriffs, the sheriffs observed
Carter place a gun on a rooftop; after the arrest the gun was retrieved and determined to
be loaded. The court found true four prior qualifying strike provisions (Pen. Code,
§§ 667, 1170.12) and sentenced Carter to a term of twenty-five years to life.
       In 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of
2012 (Prop. 36), which, among other modifications of the Three Strikes Law, added
section 1170.126 to the Penal Code to permit petitions for recall of sentences, and
resentencing by individuals who would not have been subject to indeterminate life
sentences had they been sentenced under Proposition 36.
       On January 15, 2013, Carter filed a petition for recall of his sentence pursuant to
section 1170.126. The court issued an order to show cause on March 7, 2013. The People
opposed the petition, asserting that Carter had been armed during the commission of the
offense and was, accordingly, ineligible for resentencing; the People further asserted that
his record also made him unsuitable for this relief. After additional briefing, the trial
court heard the matter on October 5, 2015, found Carter statutorily ineligible for recall
and resentencing, and denied the petition. Carter appealed.




1      That statute has been renumbered as Penal Code section 29800, subdivision (a).
All further statutory references are to the Penal Code.

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                                       DISCUSSION
       On appeal, Carter argues that former section 12021 subdivision (a)(1) is not a
crime enumerated in Proposition 36 as being excluded from eligibility for resentencing,
and that, under the circumstances of his conviction, he should not be deemed ineligible
for resentencing.
       As relevant here, an inmate is not eligible for resentencing under section 1170.126
if his or her current sentence was “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.” (§ 1170.126, subd. (e)(2).) The referenced statutes prohibit
treating a third strike offender as a second strike offender for purposes of sentencing 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).) Acknowledging this
provision, Carter argues that these factors may not be part of the offense in question, but
must be found in addition to the offense itself. As a result, he argues his conviction, for
the possession of a firearm, does not fall within the exclusion.
       The appellate courts have uniformly rejected this argument, a fact Carter
acknowledges. Although he urges us to conclude those cases were wrongly decided, we
disagree with his analysis.
       In People v. Osuna (2014) 225 Cal.App.4th 1020 (Osuna), the court noted that the
phrase ‘armed with a firearm’ “has been statutorily defined and judicially construed to
mean having a firearm available for use, either offensively or defensively.” (Id. at
p. 1029.) The evidence in the defendant’s case established that he was ‘armed with a
firearm’ when he illegally possessed the firearm. (Id. at p. 1030.) The defendant did not
dispute this. He claimed, however, as does Carter, that in order to be ineligible for recall
of sentence under Proposition 36 “there must be an underlying felony to which the
firearm possession is ‘tethered’ or to which it has some ‘facilitative nexus.’ He [argued]



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one cannot be armed with a firearm during the commission of possession of the same
firearm.” (Ibid.)
       The court explained this analysis would be appropriate if the case “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.]” (Osuna, supra, 225 Cal.App.4th at p. 1030.)
An arming enhancement under section 12022, subdivision (a)(1), may be imposed where
the defendant is armed “‘in the commission of ’ a felony.” (Osuna, supra, 225
Cal.App.4th at p. 1031.) Such an enhancement “‘requires both that the “arming” take
place during the underlying crime and that it have some “facilitative nexus” to that
offense.’” (Ibid.) That is, that the defendant “have a firearm ‘available for use to further
the commission of the underlying felony.’ [Citation.]” (Ibid.)
       However, “[h]aving 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 12021 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), [Proposition 36] 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.’ (Webster’s 3d New Internat. Dict. (1986)
p. 703.) 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. [Citation.]” (Osuna,
supra, 225 Cal.App.4th at p. 1032.)
       Based on this analysis, the court concluded the “defendant was armed with a
firearm during his possession of the gun, but not ‘in the commission’ of his crime of
possession [of a firearm by a felon]. There was no facilitative nexus; his having the
firearm available for use did not further his illegal possession of it. There was, however,

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a temporal nexus. Since [Proposition 36] 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, . . . the literal
language of [Proposition 36] 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 p. 1032; accord, People v. Brimmer (2014) 230 Cal.App.4th 782, 799
(Brimmer); see also People v. Berry (2015) 235 Cal.App.4th 1417, 1426.)
       Appellate courts in the firearm possession cases have uniformly concluded the
ineligibility factor applies whenever the record shows the defendant was in actual
physical possession of the firearm, and thus armed. (See Brimmer, supra, 230
Cal.App.4th at p. 797; Osuna, supra, 225 Cal.App.4th at p. 1030; People v. White (2014)
223 Cal.App.4th 512, 525.) They reason that a firearm possession offense that amounts
to arming is not a minor non-violent offense for purposes of Proposition 36. (See
Brimmer, supra, 230 Cal.App.4th at p. 799.)
       Carter’s case is not distinguishable. As in Osuna, Carter had the weapon available
for use; the weapon he was observed with immediately prior to his arrest was loaded and
within his possession. The trial court did not err.
                                       DISPOSITION
       The order denying the petition is affirmed.


                                                   ZELON, Acting P. J.

We concur:



       SEGAL, 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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