Filed 2/10/16 P. v. Cooper CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B262606

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA011494)
         v.

JAMES WILLY COOPER,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
         Suzan E. Hier, 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 Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
                                   I. INTRODUCTION


       Defendant, James Willy Cooper, appeals from an order denying his Penal Code1
section 1170.126, subdivision (b) resentencing petition. Defendant was convicted by a
jury in August 1996 of firearm possession by a felon. (Former § 12022, subd. (a)(1), see
now § 29800, subd. (a).) Defendant was sentenced to state prison for 30 years to life
based on the findings he had sustained two prior serious felony robbery convictions and
served five prior prison terms. (§§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12).
Defendant sought resentencing on the grounds the offense of a felon in possession of a
firearm is neither a violent nor serious felony. (§§ 667.5, subd (c), 1192.7, subd. (c).)
The trial court found defendant was ineligible for resentencing because he was armed
with a handgun when he committed the firearm possession by a felon offense in 1996.
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).)
       On appeal, defendant argues the trial court improperly made an independent
factual finding that he was armed. Defendant further asserts the arming had to be
anchored to an offense other than firearm possession by a felon. The Courts of Appeal
have repeatedly rejected these arguments. We follow that precedent and affirm the order
denying defendant’s resentencing petition.


                                    II. BACKGROUND


       We have judicially noticed the record on appeal from defendant’s 1996 conviction.
(People v. Cooper (Oct. 14, 1997, B106943) [nonpub. opn.]; Evid. Code, §§ 452, subd.
(c), 455, subd. (a), 459, subds. (a)-(b).) We summarized the facts underlying defendant’s
1996 conviction in our opinion on appeal from that judgment: “In January 1996,
[defendant] was on parole and living with his girlfriend, Lynn Strange, and her four

1      Further statutory references are to the Penal Code unless otherwise noted.



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children. On January 19, 1996, [defendant’s] parole officer gave Los Angeles County
sheriff’s deputies permission to search [defendant’s] apartment as part of a criminal
investigation. The deputies went to the apartment, and were let in by [defendant’s]
girlfriend. Upon entering the apartment, they saw [defendant] sitting at a table near the
kitchen and placed him under arrest. The deputies then searched the apartment and found
a loaded .38-caliber handgun in a kitchen cabinet. Upon hearing that the deputies had
found a gun, [defendant’s] girlfriend, who had been sitting on a sofa in the living room,
jumped up and started ‘yelling and screaming [and] flailing her arms.’ Pointing to
[defendant], she said, ‘I can’t believe, that son of a bitch would bring a gun into our
apartment with all my kids,’ and ‘He is my boyfriend and that’s fucked up.’ [¶] Four
days later, [defendant’s] parole officer visited him in jail to interview him to determine
whether he had violated conditions of his parole. [Defendant] told his parole officer that
he had found the gun in a downstairs’ closet two weeks before his arrest, and had moved
it to the cabinet so it would be out of the children’s reach. He explained that he believed
the gun belonged to his girlfriend’s former boyfriend.” (People v. Cooper, supra, typed
opinion at p. 3].)
       The prosecution presented the following additional evidence from defendant’s
original trial in connection with his resentencing petition. Deputies Paul Donnan and
David Bower were among those who arrested defendant. The arrest occurred in
defendant’s home. Deputy Donnan knocked on defendant’s apartment door and
announced, “Sheriff’s Department.” Deputy Donnan heard voices and scuffling inside
the apartment. The scuffling lasted from 5 to 10 seconds. After Deputy Donnan knocked
a second time, Ms. Strange opened the door. Defendant was sitting in a dining chair
between the kitchen and the living room. Deputy Bower found a “fully-operational” .38-
special revolver in a kitchen cabinet. The weapon contained five live rounds of
ammunition. The firearm was on the bottom shelf of an upper kitchen cabinet, at about
shoulder height. The gun was not deep inside the cupboard. The revolver was close to
the cupboard door. The butt of the handgun was facing out. The cabinet was in the part
of the kitchen closest to defendant. Deputy Donnan testified defendant was seated five to

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six feet from that cabinet. Deputy Bower’s testimony was less clear. Deputy Bower
estimated the same distance as 10 to 15 feet. Deputy Bower also testified, however, that
the distance from the kitchen cabinet to the table was 10 to 15 feet and defendant was
seated somewhere in the middle. Ms. Strange told Deputy Donnan she had never seen
the gun before and no one else had been in the apartment.


                                    III. DISCUSSION


       Section 1170.126, subdivision (e) states: “An inmate is eligible for resentencing
if: [¶] (1) The inmate is serving an indeterminate term of life imprisonment imposed
pursuant to [sections 667, subdivision (e)(2), or 1170.12, subdivision (c)] for a conviction
of a felony or felonies that are not defined as serious and/or violent felonies by
subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. [¶] (2) The
inmate’s current sentence was not imposed for any of the offenses appearing in [sections
667, subdivision (e)(2)(C)(i) through (iii), or 1170.12, subdivision (c)(2)(C)(i) through
(iii)]. [¶] (3) The inmate has no prior convictions for any of the offenses appearing in
[sections 667, subdivision (e)(2)(C)(iv), or 1170.12 (c)(2)(C)(iv)].” Defendant is serving
an indeterminate term of life imprisonment for a conviction of a nonserious, nonviolent
felony. (§ 1170.126, subd. (e)(1).) According to the record before us, defendant has no
prior conviction for any of the offenses appearing in sections 667, subdivision
(e)(2)(C)(iv) or 1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126, subd. (e)(3).) The
probation officer’s report reflects that defendant’s prior convictions are for: forgery (§
470); deadly weapon assault (§ 245); robbery (§ 211); controlled substance possession
(Health & Saf. Code, § 11350, subd. (a)) in 1984, 1988 and 1990; controlled substance
transportation or sale (Health & Saf. Code, § 11352); resisting arrest (§ 148); receiving
stolen property (§ 496); felon in possession of a firearm (former § 12021, subd. (a)) in
1989, 1991; driving with a suspended license (Veh. Code, § 14601.1, subd. (a)) three
times in 1994 and again in 1995; driving under the influence (Veh. Code, § 23152, subd.



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(b)) three times in 1994; and false representation to a peace officer (§ 148.9, subd. (a)).
The Attorney General does not contend otherwise.
       It is true that a defendant may be guilty of being a felon in possession of a firearm
without being armed with the weapon. (People v. Burnes (2015) 242 Cal.App.4th 1452,
1457-1458; People v. Blakely (2014) 225 Cal.App.4th 1042, 1052, 1054; People v. Osuna
(2014) 225 Cal.App.4th 1020, 1029-1030; People v. White (2014) 223 Cal.App.4th 512,
524.) However, defendant is ineligible for resentencing if the record establishes that,
“During the commission of the [felon in possession] offense, [he] . . . was armed with a
firearm . . . .” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd.
(e)(2); People v. Hicks (2014) 231 Cal.App.4th 275, 283-284; People v. Brimmer (2014)
230 Cal.App.4th 782, 797-799; People v. Elder (2014) 227 Cal.App.4th 1308, 1312-
1314; People v. Blakely, supra, 225 Cal.App.4th at p. 1054; People v. Osuna, supra, 225
Cal.App.4th at pp. 1026-1027, 1029-1032; People v. White, supra, 223 Cal.App.4th at pp.
519, 524, 527.) Being armed with a firearm in the present context means having the
weapon available for use, either offensively or defensively. (People v. Bland (1995) 10
Cal.4th 991, 997; People v. Estrada (2015) 243 Cal.App.4th 336, 341-342; People v.
Burnes, supra, 242 Cal.App.4th at p. 1458 ; People v. Brimmer, supra, 230 Cal.4th at pp.
793-796; People v. Blakely, supra, 225 Cal.App.4th at pp. 1051-1052; People v. Osuna,
supra, 225 Cal.App.4th at p. 1029; People v. White, supra, 223 Cal.App.4th at p. 524.)
The arming need not be tethered to an offense other than being a felon in possession of a
firearm. (People v. Hicks (2014) 231 Cal.App.4th 275, 283-284; People v. Brimmer,
supra, 230 Cal.App.4th at p. 798-799; People v. Osuna, supra, 225 Cal.App.4th at pp.
1027, 1030-1032; People v. White, supra, 223 Cal.App.4th at p. 527.)
       Moreover, in ruling on resentencing eligibility, the trial court was required to
make a factual determination whether defendant was armed. (People v. Estrada, supra,
243 Cal.App.4th at pp. 340-341; People v. Hicks, supra, 231 Cal.App.4th at p. 285;
People v. Bradford (2014) 227 Cal.App.4th 1322, 1331-1332.) In making that
determination, the trial court could properly examine any relevant, reliable admissible
portion of the trial record. (People v. Estrada, supra, 243 Cal.App.4th at pp. 340-341;

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People v. Hicks, supra, 231 Cal.App.4th at pp. 279, 285-286; People v. Brimmer, supra,
230 Cal.App.4th at pp. 799-801; People v. Bradford, supra, 227 Cal.App.4th at p. 1338;
People v. Elder, supra, 227 Cal.App.4th at p. 1317; People v. Blakely, supra, 225
Cal.App.4th at pp. 1048-1049, 1063; People v. Osuna, supra, 225 Cal.App.4th at p.
1030.)
         Defendant argues People v. Guerrero (1988) 44 Cal.3d 343, 345, 355 and People
v. Trujillo (2006) 40 Cal.4th 165, 179-181 preclude consideration of prior trial testimony
during an eligibility determination. We respectfully disagree. As the Court of Appeal for
Division Eight of this appellate district concluded in Estrada, “This type of review is
exactly what Guerrero . . . allow[s], and in no way resembles relitigation of the case.”
(People v. Estrada, supra, 243 Cal.App.4th at p. 341.) Further, a trial court need only
find a preponderance of the evidence supports the existence of a disqualifying factor.
(People v. Osuna, supra, 225 Cal.App.4th at p. 1040; see also People v. Esparza (2015)
242 Cal.App.4th 726, 740-741 [preponderance of the evidence standard of proof applies
to determination whether defendant presents an unreasonable risk of danger to the
public]; People v. Superior Court (Kaulick) 215 Cal.App.4th 1279, 1301-1305 [same]).
Our review is for substantial evidence. (People v. Hicks, supra, 231 Cal.App.4th at pp.
284, 286; People v. Guilford (2014) 228 Cal.App.4th 651, 661; People v. Elder, supra,
227 Cal.App.4th at p. 1317.)
         Here, the record establishes Deputy Donnan knocked on defendant’s apartment
door. Deputy Donnan heard voices and scuffling noises. When the deputies entered the
apartment, defendant was seated at a table near the kitchen. A loaded “fully-operational”
.38-caliber revolver was in a kitchen cabinet. The weapon was on the lowest shelf, just
inside the cabinet door, with the gun’s handle facing out. Defendant was seated on a
chair approximately 5 to 8 feet, and not more than 15 feet, from the cabinet. On these
facts, the trial court, in determining defendant’s resentencing eligibility, could reasonably
conclude the handgun was available for his use defensively or offensively. Substantial
evidence supported that finding. Accordingly, defendant is ineligible for resentencing.



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                                IV. DISPOSITION


     The order under review is affirmed.
                         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                         TURNER, P.J.
We concur:




     KRIEGLER, J




     BAKER, J.




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