Filed 6/29/16 P. v. Shells CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B269286

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA024549)
         v.

BRADLEY EUGENE SHELLS,

         Defendant and Appellant.




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

         California Appellate Project, Jonathan B. Steiner, Executive Director, and
Richard B. Lennon, Staff Attorney, 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, Assistant Attorney General, Noah P. Hill and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
                                              __________________
       In 1995, a jury convicted defendant and appellant Bradley Eugene Shells of
possession of a firearm by a felon with a prior conviction (Pen. Code, § 12021.1).1 In a
bifurcated proceeding, the trial court found that defendant had suffered two prior
convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)). Defendant was sentenced to 25 years to life in prison pursuant
to the Three Strikes law.
       On June 10, 1997, this Court affirmed defendant’s conviction, but remanded the
matter to the trial court to exercise its discretion to determine whether to strike one or
both of defendant’s prior convictions pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497. (People v. Shells (June 10, 1997, B099474) [nonpub. opn.], p. 9.)
On February 18, 1998, the trial court decided not to vacate either of the prior strike
findings and again sentenced defendant to a prison term of 25 years to life. (People v.
Shells (Apr. 5, 1999, B119951) [nonpub. opn.], p. 2.) Defendant again appealed, and on
April 5, 1999, we affirmed defendant’s life sentence. (Id. at pp. 1, 15–16.)
       On January 25, 2013, defendant filed a petition for recall of sentence in the trial
court pursuant to section 1170.126. Following a hearing, the trial court denied the
petition pursuant to sections 667, subdivision (c)(2)(C)(iii) and 1170.126, subdivision
(e)(2), “because during the commission of the current offense [defendant] was armed
with a firearm.”
       Defendant timely filed a notice of appeal. On appeal, he argues that the trial court
erred in finding that he was ineligible for recall and resentencing based on the factual
finding that he was armed at the time of the commission of the crime.
       We affirm.
                               FACTUAL BACKGROUND
       “On June 9, 1995, [defendant] was inside a jewelry store with three other men.
[Defendant] and one of the men each had a loaded gun. [Defendant] did not display his



1      All further statutory references are to the Penal Code unless otherwise indicated.


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gun. After the other two men left the store to check on the status of a getaway van,
[defendant] walked out of the store. Upon being confronted by police, [defendant] ran.
When the police captured [defendant], he told them he had a gun in his pocket. It was
stipulated that [defendant] had previously been convicted of a felony.” (People v. Shells,
supra, B099474, at p. 2.)
       At trial, the arresting officer testified that a loaded, semiautomatic, .25-caliber
handgun had been found in defendant’s right rear pocket.
                                       DISCUSSION
       Proposition 36, the Three Strikes Reform Act of 2012, “created a postconviction
release proceeding whereby a prisoner who is serving an indeterminate life sentence
imposed pursuant to the [T]hree [S]trikes law for a crime that is not a serious or violent
felony and who is not disqualified, may have his or her sentenced 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, 168.) An inmate currently serving an
indeterminate life sentence pursuant to the Three Strikes law is disqualified from
resentencing if he has an enumerated disqualifying factor set forth in section 1170.126,
subdivision (e). (People v. Hicks (2014) 231 Cal.App.4th 275, 282.)
       One of the disqualifying factors is 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).) The phrase “during the commission of the current offense”
“requires a temporal nexus between the arming and the underlying felony, not a
facilitative one.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1032 (Osuna).)
Moreover, the phrase “‘[a]rmed with a firearm’ has been statutorily defined and judicially
construed to mean having a firearm available for use, either offensively or defensively.
[Citations.]” (Osuna, supra, 225 Cal.App.4th at p. 1029.) “‘“[I]t is the availability—the
ready access—of the weapon that constitutes arming.”’ [Citations.]” (People v. White
(2014) 223 Cal.App.4th 512, 524.)

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       Where “the record establishes that a defendant convicted under the pre-Proposition
36 version of the Three Strikes law as a third strike offender of possession of a firearm by
a felon was armed with the firearm during the commission of that offense, the armed-
with-a-firearm exclusion applies and the defendant is not entitled to resentencing relief
under” section 1170.126. (People v. White, supra, 223 Cal.App.4th at p. 519.)
       That is exactly what the record shows here. As such, defendant is not entitled to
resentencing relief. (See, e.g., People v. White (2016) 243 Cal.App.4th 1354, 1360–
1364; People v. Burnes (2015) 242 Cal.App.4th 1452, 1458; People v. Hicks, supra, 231
Cal.App.4th at pp. 283–284; Osuna, supra, 225 Cal.App.4th at pp. 1030–1038.)
       Defendant urges us to reject the reasoning of these and other numerous cases
primarily on the ground that the language “during the commission of the current offense”
must mean that there “is another offense to which the arming attaches.” We cannot
agree. Giving the statutory language its “ordinary and usual meaning” (Aleman v.
Airtouch Cellular (2012) 209 Cal.App.4th 556, 568), we agree with the Osuna court that
the word “during” means “‘throughout the continuance or course of’ or ‘at some point in
the course of.’ [Citation.]” (Osuna, supra, 225 Cal.App.4th at p. 1032.) Thus, as set
forth above, the statutes require only “a temporal nexus between the arming and the
underlying felony, not a facilitative one.” (Ibid.) The arming need not be tethered to a
separate underlying offense. (Id. at p. 1034.) Because that is what the trial court found
here, it follows that defendant is ineligible for resentencing.




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




                              _____________________________, J.
                                    ASHMANN-GERST


We concur:



______________________________, P. J.
           BOREN



______________________________, J.
           CHAVEZ




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