Filed 1/17/14 P. v. McCloud CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063459

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD149289)

CHARLES MCCLOUD,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

         Henry C. Coker, Public Defender, Randy Mize, Chief Deputy Public Defender,

Matthew Braner and Jo Ellen Super, Deputy Public Defenders, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Warren

Williams, Deputy Attorneys General, for Plaintiff and Respondent.
       In April 2000, Charles McCloud entered a guilty plea to one count of evading a

peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a)) and one count of

being a felon in possession of a firearm (Pen. Code,1 § 12021, subd. (a)(1)). He also

admitted three strike prior convictions (§ 667, subds. (b)-(i)). The court sentenced

McCloud to an indeterminate term of 25 years to life in prison.

       In November 2012 the voters enacted Proposition 36 to modify California's Three

Strikes Law. Pursuant to section 1170.126 persons who are serving an indeterminate

sentence for a third strike offense, which was not a serious or violent felony, may petition

the trial court to recall the sentence.

       On November 20, 2012, McCloud filed a petition to recall his sentence. The court

appointed counsel for McCloud and ultimately held a hearing to determine if he was

eligible for resentencing under Proposition 36 (the Act). At the conclusion of the hearing

the court found that the record from the 2000 convictions demonstrated that McCloud

was armed with a firearm at the time of his offenses within the meaning of section

1170.126 and was therefore ineligible for resentencing under the Act.

       McCloud appeals contending the trial court erred in several respects in finding him

ineligible for relief as we will outline below.

       We are satisfied the undisputed record shows McCloud was personally armed with

a firearm when he committed the 1999 offenses, that the trial court need not rely on

elements of the charged offenses, and that retrospective evaluation of the requirements



1      All further statutory references are to the Penal Code unless otherwise specified.
                                              2
for resentencing under the Act does not mandate prior pleading and proof of the factors

for ineligibility at the time of the original proceedings. Accordingly, we will affirm the

trial court's determination that McCloud is not eligible for resentencing.

       Given the limited nature of our factual inquiry on this appeal we will omit the

traditional statement of facts and consider such facts as are relevant in the appropriate

portion of the discussion which follows.

                                        DISCUSSION

       The basic issue presented in this case is whether the record discloses that McCloud

was armed with a firearm during the commission of the offenses for which he is serving a

third strike sentence. McCloud contends he is not ineligible for resentencing because the

offense for which he was convicted, possession of a firearm by a felon, does not include

the element of being armed with or using a firearm. McCloud also argues that in

examining the underlying conviction in this case the court must use the same

methodology as would be used in examining a recidivist enhancement allegation.

(People v. Guerrero (1988) 44 Cal.3d 343; People v. Myers (1993) 5 Cal.4th 1193.)

McCloud further argues that the prosecution in 1999 had the duty to plead and prove that

he was armed at the time of the offense, and in the absence of a record of such pleading

and proof, a retrospective determination he was ineligible for resentencing under the Act

would violate the principles of due process established in Apprendi v. New Jersey (2000)

530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296. Finally,

McCloud contends that even if we reject his other arguments, the record is not sufficient

to sustain the trial court's finding.

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                                     A. Proposition 36

       In November 2012 the voters enacted a reform of California's Three Strikes Law.

"The Act changes the requirements for sentencing a third strike offender to an

indeterminate term of 25 years to life imprisonment. Under the original version of the

three strikes law a recidivist with two or more prior strikes who is convicted of any new

felony is subject to an indeterminate life sentence. The Act diluted the three strikes law

by reserving the life sentence for cases where the current crime is a serious or violent

felony or the prosecution has pled and proved an enumerated disqualifying factor. In all

other cases, the recidivist will be sentenced as a second strike offender. [Citation.] The

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.)

       The proponents of the Act informed the public in the Voter Information Guide that

the amendments to the law would do several things. They would (1) revise the three

strikes law to impose life sentences only when a new felony conviction is serious or

violent; (2) authorize resentencing for offenders currently serving life sentences if the

third strike conviction was not serious or violent and the judge determines the sentence

does not pose an unreasonable risk to public safety; (3) continue to impose life sentence

penalties if the third strike conviction was for certain nonserious, nonviolent sex or drug

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offenses or involved firearm possession; and (4) maintain life sentence penalties for

felons with nonserious, nonviolent third strike convictions if the person has prior

convictions for rape, murder or child molestation. (Voter Information Guide, Gen. Elec.

(Nov. 6, 2012) p. 48.)

       Thus, the thrust of the reform was to modify the three strikes law to allow

resentencing of or prevent future life sentences for persons whose third strike involves a

nonserious or nonviolent felony. The proponents argued the reform would make it easier

to deal with serious or violent offenders by removing those whose new offenses are not

serious or violent, thus making room in the prisons for the truly dangerous offenders.

The proponents, however, assured the public that dangerous felons would continue to

receive the harsh third strike sentences where certain criteria are met. The criterion at

issue in this case is whether the defendant was armed with a firearm during the

commission of his commitment offenses. Persons armed with or using firearms were

deemed by the proponents of the Act to be dangerous.

       Having these principles in mind we turn to McCloud's individual contentions.

                          B. Possession of a Firearm by a Felon

       McCloud contends that conviction of possession of a firearm by a felon does not

disqualify him from resentencing. The parties agree the offense does not qualify as a

serious or violent felony. McCloud argues that the offense can be committed without

being "armed." We agree that physical possession of a firearm is not required to prove

possession. Such offense can be proved by showing constructive possession of the

weapon, either directly or through another person. (People v. Sifuentes (2011) 195

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Cal.App.4th 1410, 1417.) On the other hand being armed means that the defendant had

the weapon physically available for offensive or defensive use. (People v. Bland (1995)

10 Cal.4th 991, 1003; People v. Wandick (1991) 227 Cal.App.3d 918, 921; People v.

Fierro (1991) 1 Cal.4th 173, 225.)

       Thus we agree with McCloud that mere proof of conviction for possession does

not show the defendant was armed during the commission of the offense. Something

more is required. McCloud contends we must examine the question of arming as if it was

alleged as an enhancement, or as if the prosecution was attempting to prove a recidivist

allegation. (People v. Guerrero, supra, 44 Cal.3d 343.) We disagree.

       The controlling section in this case is section 1170.126, subdivision (e)(2). It

makes a defendant ineligible for resentencing if "[d]uring the commission of the current

offense [he] . . . was armed with a firearm." (§ 667, subd. (e)(2)(C)(iii).) As we will

discuss below, the section does not require pleading and proof of arming when a

retrospective examination of the sentence occurs nor does it refer to any requirement to

establish elements of any of the statutory arming enhancements.

       Rather we must follow the direction of the Act to liberally construe its terms to

accomplish the purposes of the legislation. (Voter Information Guide, supra, text of

Prop. 36, § 7, p. 110.)

                                   C. Pleading and Proof

       A central contention in McCloud's challenge to the trial court's decision is that in

order to establish he is ineligible for resentencing, the disqualifying criterion must have

been pled and proved prior to his 2000 conviction. This is required, he argues, because

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the ineligibility "increases punishment" and pleading and proof are required after

Apprendi, supra, 530 U.S. 466. We disagree.

       In Apprendi, supra, 530 U.S. 466, the court held that a defendant could not be

sentenced to a term, in excess of the statutory maximum for the elements of the offense

without the pleading and proof of the facts which would give rise to the increased term.

There the trial court had imposed a term, beyond the statutory maximum for the offense,

based on judicial fact finding that the crime was motivated by racial animus. (See also

Blakely v. Washington, supra, 542 U.S. 296.) The difficulty with McCloud's argument is

that he was sentenced to a life term, based upon factors properly pled and proved when

the prosecution demonstrated McCloud was a third strike offender. Thus, in the

retrospective examination of the record of conviction the question is not whether to

increase punishment for the current offense, because that was already lawfully done.

Rather, the question is whether, based on the manner of the commission of the underlying

offense the prisoner is or is not eligible for a potential reduction of his or her sentence.

       In the portion of the Act dealing with prospective application of the three strikes

law to new cases, the statute requires the prosecution to plead and prove any factor which

would qualify the defendant for a life term sentence, including, where appropriate, that

the defendant was armed during the commission of the offense. (§ 667, subd. (e)(2)(C).)

The differences in approach make sense. Prospectively, the prosecution is seeking, in the

case of nonserious or nonviolent third strikes, to impose a life term, which would not be

possible without the added factors. On the other hand, in a retrospective analysis of

sentences, the increased punishment has already been lawfully imposed. We agree with

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the court in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303, in

finding no requirement of pleading and proof for factors of ineligibility in retrospective

examination of third strike sentences.

                                D. The State of the Record

       Finally, McCloud contends the record on appeal does not establish he was armed

during his offenses. We again disagree.

       The underlying conviction followed a guilty plea. Prior to sentencing, the

probation officer's report set forth the facts of the offense. The accuracy of that report

has never been challenged. In addition, at the time of the plea McCloud admitted he

evaded police and he possessed a firearm.

       The probation report states: "On [January 25, 1999], at about 6:15 a.m., a San

Diego police officer watched a vehicle drive though a red light. The officer stopped the

vehicle in the 4200 block of Hamilton Street, but before the officer could contact the

driver, the vehicle sped off. The driver ignored two stop signs as he continued to evade

the police officer. The driver, Charles McCloud, subsequently tried to turn a corner and

collided with a pole.

       "The defendant exited the vehicle and ran away from the officer. Prior to

apprehending the defendant, the officer saw the defendant throw an unknown object

away. McCloud was handcuffed and a semiautomatic handgun was recovered. The gun




                                              8
had one live round in the chamber and two live rounds in the magazine. The defendant

was read his Miranda[2] rights, but he refused to talk."

       As we have noted there is no challenge to the accuracy of the report in this record.

We are satisfied that a trial court reviewing the circumstances of the prior conviction

could conclude that McCloud had a loaded firearm in his physical possession, indeed in

his hand, during the commission of his current offenses. The court's finding McCloud is

ineligible for relief under the Act is supported by the record.

                                      DISPOSITION

       The judgment is affirmed.




                                                                            HUFFMAN, J.

WE CONCUR:



             BENKE, Acting P. J.


                  McDONALD, J.




2      Miranda v. Arizona (1966) 384 U.S. 436.
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