Filed 10/16/14

                           CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



THE PEOPLE,

        Plaintiff and Appellant,                      E058563

v.                                                    (Super.Ct.No. RIF75582)

JERRY CARL BRIMMER,                                   OPINION

        Defendant and Respondent.




        APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Reversed.

        Paul E. Zellerbach, District Attorney, and Emily R. Hanks, Deputy District

Attorney, for Plaintiff and Appellant.

        James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant

and Respondent.

        This is an appeal by the People following the trial court’s order granting defendant

and respondent Jerry Carl Brimmer’s petition to recall defendant’s sentence under the


                                              1
Three Strikes Reform Act of 2012, added by Proposition 36 (the Act). (Pen. Code,

§ 1170.126.)1 On appeal, the People contend that the trial court erred in finding

defendant eligible for resentencing under the Act because during the commission of the

offense, defendant used and was armed with a firearm. For the reasons explained below,

we will reverse the trial court’s order.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND2

       On July 4, 1997, an Independence Day party occurred at the apartment complex in

which defendant, his common law wife Claudette Walters, and his infant daughter

resided. Both defendant and his wife were drinking. During the course of the party,

defendant and Walters got into an argument. Apparently, defendant was angry at Walters

for agreeing to let a friend’s pit bull live in the apartment without consulting him first, as

he was concerned about his daughter’s safety. Kutrina Farris, a neighbor, saw defendant

and Walters argue in front of the building. Then, defendant took his daughter and left.

Subsequently, he returned with a gun and continued his argument with Walters; and

while still holding on to the weapon, defendant told his girlfriend, “ ‘let’s get it on.’ ”

Subsequently, Walters’ daughter, Dominique, told Farris that defendant pulled a gun on


       1   All future statutory references are to the Penal Code unless otherwise stated.

       2 The factual background of the underlying offense is taken from this court’s
nonpublished opinion in defendant’s prior appeal following his current convictions (see
People v. Brimmer (Aug. 3, 1999, E023004) [nonpubl. opn.]), as well as from the police
report, which is attached to the People’s opposition to recall defendant’s sentence.


                                               2
her mother. In response, Farris called the police. After summoning the police, Farris saw

defendant walk out of his apartment with a shotgun and hide the gun in the nearby rose

bushes.

       When the police arrived, defendant was belligerent and could not be interviewed

due to being severely intoxicated. Defendant was arrested, transported to county jail, and

placed in an isolated drunk room of the jail. Police officers recovered an unloaded

sawed-off shotgun in the bushes near the apartment.

       On May 7, 1998, defendant was convicted of being a felon in possession of a

firearm (former § 12021, subd. (a)(1); count 1) and possession of a short-barreled

shotgun (former § 12020, subd. (a); count 2). It was also found true that defendant had

suffered three prior strike convictions, two for robbery and two for first degree residential

burglary. Defendant was subsequently sentenced to 25 years to life in state prison.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Act. Among other things, this ballot measure enacted section 1170.126, which permits

persons currently serving an indeterminate life term under the “Three Strikes” law to file

a petition in the sentencing court seeking to be resentenced to a determinate term as a

second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that

the defendant meets the criteria of section 1170.126, subdivision (e), the court may

resentence the defendant. (§ 1170.126, subds. (f), (g).)

       Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is

eligible for resentencing if he or she is serving an indeterminate term of life



                                               3
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or

subdivision (c) of section 1170.12 “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.” (§ 1170.126, subd. (e)(1).) The Act makes

ineligible for resentencing those persons who “[d]uring the commission of the current

offense, the defendant used a firearm, [or] was armed with a firearm . . . .” (§§ 667,

subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii); see § 1170.126, subd. (e).)

       On December 13, 2012, defendant filed a petition for resentencing under

section 1170.126. The People opposed the petition on the grounds that defendant was

statutorily ineligible under the Act. The People argued that defendant was ineligible

because he was armed with and used a firearm during the commission of the crime; that

the prosecution did not have to plead and prove defendant was armed with and used a

firearm; and that defendant posed a risk to public safety.

       The trial court heard the petition on April 11, 2013. Following argument from the

parties, the trial court granted the petition, finding defendant eligible for resentencing

under section 1170.126. The court also found by a preponderance of evidence that

defendant did not pose a dangerous risk to public safety. The court explained that

defendant “is not likely now, given his age, given the fact that it has been 11-plus years

since he has had even an incident of difficulty as far as mutual combat or any other kind

of violence in the custodial setting, and even in the custodial setting, to be fair to him,

while he’s had a number of—he’s had three mutual combats, he’s had no weapons



                                               4
allegations. He’s had no violence. He’s had no disrespect to correctional officers. He’s

had none of the other indicia the Court would show as red flags, other than the mutual

combats. [¶] When he’s punished, he doesn’t argue about it. He takes the punishment.

He’s verbally warned. There’s no indication that he’s done anything that is at all not

respectful or used a weapon or violated any other rules, but the minor rules we indicated

like covering the window.”

       The court thereafter resentenced defendant to the upper term of three years,

doubled to six years due to the prior strike offenses, for felon in possession of a firearm

as alleged in count 1; and a stayed six-year sentence on count 2 for possession of a short-

barreled shotgun. Defendant was awarded a total of 5,939 days in credits and ordered to

report to parole.

       The People timely filed an appeal on April 15, 2013.3




       3  The appealability of the denial of a section 1170.126 petition is currently being
considered by the Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217
Cal.App.4th 308, review granted July 31, 2013, S211708 [court held it was not
appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31,
2013, S212017 [court held it was appealable].) Even if we were to conclude it was a
nonappealable order, we could, in the interest of judicial economy and because of
uncertainty in the law, treat the People’s appeal as a petition for writ of habeas corpus or
petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4
[treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v.
Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating
appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we
will review the People’s appeal.



                                              5
                                               II

                                        DISCUSSION

       The People argue that defendant was statutorily ineligible under the plain language

of the Act, because defendant “used a firearm and was armed with a firearm during the

commission of his commitment offense.” (§ 667, subd. (e)(2)(C)(iii).) The People

explain that the record clearly shows defendant “retrieved a short barreled shotgun,” and

threatened the victim while holding the gun, stating “ ‘let’s do this’ and ‘let’s get it on.’ ”

Therefore, the People maintain, defendant “used a firearm and was armed with a firearm

during the commission of the offense.” The People also assert that the provisions of

section 1170.126 do not contain a pleading and proof requirement to render defendant

ineligible to petition for resentencing.

       Defendant responds that he was a person who was qualified to have his sentence

recalled, because his commitment convictions for being a felon in possession of a gun

and possession of a short-barreled shotgun are not violent or serious felonies as defined in

sections 667.5, subdivision (c), and 1192.7, subdivision (c), and the prosecution failed to

plead and prove any disqualifying factors under section 667, subdivision (e)(2)(C).

Defendant also argues that his convictions for possessing a firearm do not, in and of

themselves, constitute a disqualifying factor, because the arming must occur during the

commission of a separate felony and the evidence was insufficient to show that he had a

firearm available for offensive or defensive use in the furtherance of any felony.

Defendant further claims that using a disqualifying factor not pled and proved to the jury



                                               6
would violate his constitutional rights to due process and a jury trial under Apprendi v.

New Jersey (2000) 530 U.S. 466 (Apprendi).

       A.     Principles of Statutory Interpretation

       Statutory interpretation is a question of law. (Reno v. Baird (1998) 18 Cal.4th

640, 660.) Consequently, appellate courts apply their independent judgment when

interpreting a legislative act. (California Teachers Assn. v. San Diego Community

College Dist. (1981) 28 Cal.3d 692, 699.)

       “Thus, the first step in statutory construction is to examine the statutory language

and give it a plain and commonsense meaning.” (People v. Verduzco (2012) 210

Cal.App.4th 1406, 1414.) In other words, “We must give the statutory provisions at issue

a reasonable and common sense interpretation, consistent with the apparent purpose and

intention of the Legislature. If possible, we will give significance to the plain meaning of

every word, phrase, and sentence of a statute in pursuance of the legislative purpose,

harmonizing the various parts of an enactment by considering each particular clause or

section in the context of the statutory framework as a whole. In this process, we must

take into account the context, object, and history of the legislation, as well as public

policy and contemporaneous construction in our attempt to arrive at a construction that is

practical rather than technical in nature. [Citations.]” (In re Rochelle B. (1996) 49

Cal.App.4th 1212, 1216; see People v. Zambia (2011) 51 Cal.4th 965, 972.)

       “If the meaning of the statute remains unclear after examination of both the

statute’s plain language and its legislative history, then we proceed to the third and final



                                              7
step of the interpretive process. We apply ‘reason, practicality, and common sense to the

language at hand.’ [Citation.] The words of the statute should be interpreted ‘to make

them workable and reasonable.’ [Citation.]” (People v. Verduzco, supra, 210

Cal.App.4th at p. 1414.)

       B.      The Act Generally

       The Act amended sections 667 and 1170.12 and added section 1170.126; it

changed the requirements for sentencing some third strike offenders. “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. [Citations.] 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

(Yearwood).)

       “Thus, there are two parts to the Act: the first part is prospective only, reducing

the sentence to be imposed in future three strike cases where the third strike is not a



                                              8
serious or violent felony [citations]; the second part is retrospective, providing similar,

but not identical, relief for prisoners already serving third strike sentences in cases where

the third strike was not a serious or violent felony (Pen. Code, § 1170.126.)” (People v.

Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292 (Kaulick).) “The main

difference between the prospective and the retrospective parts of the Act is that the

retrospective part of the Act contains an ‘escape valve’ from resentencing for prisoners

whose release poses a risk of danger.” (Id. at p. 1293.)

       We agree with defendant that his current commitment felony offenses of felon in

possession of a firearm and illegal possession of a shotgun are not serious or violent

felonies under section 667.5, subdivision (c), or section 1192.7, subdivision (c).

However, the inquiry does not end with whether or not the current conviction is a serious

or violent felony. As previously noted, an inmate is eligible for such resentencing if none

of his or her commitment offenses constitute serious or violent felonies and none of the

enumerated factors disqualifying a defendant for resentencing under the Act apply.

(§ 1170.126, subd. (e).)

       Using a firearm or being armed with a firearm during the commission of a current

offense is a disqualifying factor listed in section 667, subdivision (e)(2)(C)(iii), and

section 1170.12, subdivision (c)(2)(C)(iii).4 Here, as the parties correctly acknowledge,

       4 Section 667, subdivision (e)(2)(C)(iii) provides: “[(e)(2)](C) If a defendant has
two or more prior serious and/or violent felony convictions as defined in subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and
the current offense is not a serious or violent felony as defined in subdivision (d), the
defendant shall be sentenced [as a second strike offender] pursuant to paragraph (1) of
                                                                   [footnote continued on next page]


                                              9
only the second resentencing eligibility criterion set forth in section 1170.126,

subdivision (e)(2), is at issue in this appeal.5 Thus, under the plain language of the

armed-with-a-firearm exclusion, defendant is ineligible for resentencing relief as a

second strike offender if his life sentence was “imposed” because “[d]uring the

commission of the current offense, [he] used a firearm, [or] was armed with a firearm.”

(§§ 667, subd. (e)(2)(C)(iii) & 1170.12, subd. (c)(2)(C)(iii), both cross-referenced in

§ 1170.126, subd. (e)(2).)

        In approving the Act, the voters found and declared that its purpose was to prevent

the early release of dangerous criminals and relieve prison overcrowding by allowing

low-risk, nonviolent inmates serving life sentences for petty crimes, such as shoplifting



[footnote continued from previous page]
subdivision (e) unless the prosecution pleads and proves any of the following: [¶] . . . [¶]
(iii) During the commission of the current offense, the defendant used a firearm, [or] was
armed with a firearm . . . .” (Italics added.)
        Section 1170.12, subdivision (c)(2)(C)(iii), provides: “[(c)(2)](C) If a defendant
has two or more prior serious and/or violent felony convictions as defined in
subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been
pled and proved, and the current offense is not a felony described in paragraph (1) of
subdivision (b) of this section, the defendant shall be sentenced [as a second strike
offender] pursuant to paragraph (1) of subdivision (c) of this section, unless the
prosecution pleads and proves any of the following: [¶] . . . [¶] (iii) During the
commission of the current offense, the defendant used a firearm, [or] was armed with a
firearm . . . .” (Italics added.)

        5The first resentencing eligibility criterion set forth in section 1170.126,
subdivision (e)(1), is met because defendant is serving an indeterminate life sentence for
crimes that (as noted, ante ) are not serious or violent felonies. Neither party raises any
issue regarding the third criterion set forth in section 1170.126, subdivision (e)(3), and,
thus, we shall not discuss it further.



                                             10
and simple drug possession, to receive twice the normal sentence instead of a life

sentence. (Ballot Pamp., Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, subds. (3), (4) &

(5), p. 105 (Pamphlet); see People v. White (2014) 223 Cal.App.4th 512, 522 (White)

(review den. Apr. 30, 2014, S217030 [Fourth Dist., Div. One].)6 The electorate also

mandated that the Act be liberally construed to effectuate the protection of the health,

safety, and welfare of the people of California. (Pamphlet, supra, text of Prop. 36, § 7,

p. 110; see White, supra, at p. 522.) Accordingly, we liberally construe the provisions of

the Act in order to effectuate its foregoing purposes and note that findings in voter ballot

pamphlets may be used to illuminate ambiguous or uncertain provisions of an enactment.

(See White, supra, at p. 522; Yearwood, supra, 213 Cal.App.4th at pp. 170-171.)

       C.     “Used” or “Armed With a Firearm”

       The Act does not define “used” or “armed with a firearm.” However, the Penal

Code provides definitions to distinguish between arming and use.7 Section 1203.06,

subdivision (b)(3), defines “armed with a firearm” as “to knowingly carry or have

available for use a firearm as a means of offense or defense.” Section 1203.06,

subdivision (b)(2), currently states “‘used a firearm’ means to display a firearm in a

       6We take judicial notice of the Official Ballot Pamphlet for the California
General Election of November 6, 2012, relating to the Act. (See Evid. Code, §§ 452 &
459.)

       7 In sections 12022 and 12022.5, the Legislature drew a distinction between
armed with a firearm in the commission of a felony and using a firearm in the
commission of a felony, and it made firearm use subject to more severe penalties.
(People v. Bland (1995) 10 Cal.4th 991, 996-997 (Bland).)



                                             11
menacing manner, to intentionally fire it, to intentionally strike or hit a human being with

it, or to use it in any manner that qualifies under Section 12022.5.”8 (See CALCRIM

No. 3146 [adopts the statutory definition for “use of a firearm”]; People v. Wims (1995)

10 Cal.4th 293, 302 [noting the definition in the standard jury instruction for “use” was

adapted from the statutory definition]; People v. Johnson (1995) 38 Cal.App.4th 1315,

1319 [declaring the statutory definition of gun use in section 1203.06 applicable to

section 12022.5].)

       In People v. King (1993) 5 Cal.4th 59, our Supreme Court noted: “Use” in firearm

enhancement statutes, i.e., sections 12022.5, 12022.53, means, among other things, “ ‘ “to

carry out a purpose or action by means of,” to “make instrumental to an end or process,”

and to “apply to advantage.” ’ ” (King at p. 71, quoting In re Culbreth (1976) 17 Cal.3d

330, 334.)

       The lead case construing the language of “armed with a firearm” and addressing

the definition of arming for purposes of former section 12022 is Bland, supra, 10 Cal.4th

991. In Bland, our Supreme Court, contrasting arming with use of a firearm, explained

that former section 12022, which imposed an additional prison term for anyone “armed

with a firearm in the commission” of a felony, applied where “the defendant has the

specified weapon available for use, either offensively or defensively.” (Id. at p. 997.)

       8  Section 12022.5, subdivision (a), provides in pertinent part: “[A]ny person who
personally uses a firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for 3,
4, or 10 years, unless use of a firearm is an element of that offense.”



                                             12
The court explained: “[T]he statutory language ‘in the commission of a felony’ mean[s]

any time during and in furtherance of the felony. Therefore . . . [a] sentence enhancement

for being ‘armed’ with an assault weapon applies whenever during the commission of the

underlying felony the defendant had an assault weapon available for use in the

furtherance of that felony. [Citation.]” (Id. at p. 1001, italics omitted.) “[B]y specifying

that the added penalty applies only if the defendant is armed with a firearm ‘in the

commission’ of the felony offense, section 12022 implicitly requires both that the

‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’

to that offense.” (Bland, at p. 1002.)

       The Supreme Court has subsequently reiterated Bland’s holding that the arming

under section 12022 must have occurred both during the commission of the underlying

crime and have a facilitative nexus to the crime. (In re Tameka C. (2000) 22 Cal.4th 190,

197.) And, most recently, in People v. Pitto (2008) 43 Cal.4th 228, in refusing to

overrule Bland, the court agreed with the defendant’s contention that “Bland appears to

have adopted a ‘facilitative nexus’ test and embraced a ‘purpose and effect’ standard.”

(Id. at p. 239.) In other words, a defendant is armed if the gun has a facilitative nexus

with the underlying offense (i.e., it serves some purpose in connection with it); however,

this requires only that the defendant is aware during the commission of the offense of the

nearby presence of a gun available for use offensively or defensively, the presence of

which is not a matter of happenstance. This does not require any intent to use the gun for

this purpose. (Pitto, supra, at pp. 239-240.)



                                             13
       “The statutory elements of a violation of section 12021, subdivision (a)(1), . . . are

that a person, who has previously been convicted of a felony, had in his or her possession

or under his or her custody or control any firearm.” (People v. Padilla (2002) 98

Cal.App.4th 127, 138, italics added.) Although the crime of possession of a firearm by

a felon may involve the act of personally carrying or being in actual physical possession

of a firearm, as occurred here, such an act is not an essential element of a violation of

section 12021, subdivision (a), because a conviction of this offense may also be based on

a defendant’s constructive possession of a firearm. (See People v. Sifuentes (2011) 195

Cal.App.4th 1410, 1417 (Sifuentes); People v. Mejia (1999) 72 Cal.App.4th 1269, 1272

[defendant need not physically have the weapon on his person; constructive possession

of a firearm “is established by showing a knowing exercise of dominion and control”

over it].) “To establish constructive possession, the prosecution must prove a defendant

knowingly exercised a right to control the prohibited item, either directly or through

another person.” (Sifuentes, supra, at p. 1417.) Hence, while the act of being armed

with a firearm—that is, having ready access to a firearm (Bland, supra, 10 Cal.4th at

p. 997)—necessarily requires possession of the firearm, possession of a firearm does not

necessarily require that the possessor be armed with it.

       As the court in In re Pritchett (1994) 26 Cal.App.4th 1754 explained: “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. [¶] At most, [the

defendant] used the shotgun as an instrument of possession, or made ‘possessory use’ of



                                             14
the shotgun, in the commission of his crime of [felon in] possession. However, if

possessory use is a legally cognizable concept, it does not support a use enhancement

because possessory use is an element of the crime of possession of a deadly weapon.”

(Id. at p. 1757.)

       Accordingly, as noted above, “armed with a firearm” has been statutorily defined

and judicially construed to mean having a firearm available for use, either offensively or

defensively. (E.g., § 1203.06, subd. (b)(3); Bland, supra, 10 Cal.4th at p. 997.) “The

enacting body is deemed to be aware of existing laws and judicial constructions in effect

at the time legislation is enacted” (People v. Weidert (1985) 39 Cal.3d 836, 844), “and to

have enacted or amended a statute in light thereof” (People v. Harrison (1989) 48 Cal.3d

321, 329). “This principle applies to legislation enacted by initiative. [Citation.]”

(Weidert, supra, at p. 844.)

       “Where, as here, ‘the language of a statute uses terms that have been judicially

construed, “ ‘the presumption is almost irresistible’ ” that the terms have been used “ ‘in

the precise and technical sense which had been placed upon them by the courts.’ ”

[Citations.] This principle [likewise] applies to legislation adopted through the initiative

process. [Citation.]’ [Citation.] Accordingly, we conclude the electorate intended

‘armed with a firearm,’ as that phrase is used in the Act, to mean having a firearm

available for offensive or defensive use.” (People v. Blakely (2014) 225 Cal.App.4th

1042, 1052 (petn. for review denied July 9, 2014, S218914) (Blakely), quoting People v.

Weidert, supra, 39 Cal.3d at pp. 845-846.)



                                             15
       Here, the record does not contain the accusatory pleading. It is therefore unknown

whether defendant was charged with using or being armed with a firearm during the

commission of his current commitment offenses.9 However, the record shows that the

prosecution’s case was based on evidence that defendant was armed with an unloaded

shotgun while arguing with or threatening his girlfriend during his possession of the

shotgun. In other words, the prosecution’s case was based on evidence that defendant not

only possessed the shotgun, but also that he was armed with the firearm during his

commission of the current offenses. Specifically, the record establishes that defendant

not only had a firearm “in [his] possession or under [his] custody or control”; he also was

personally armed with the firearm on that date because he was carrying it and using it in a

menacing manner to threaten his girlfriend—and, thus, had “ready access” (Bland, supra,

10 Cal.4th at p. 997) to—that firearm. The record of conviction shows that on July 4,

1997, while arguing with his girlfriend about allowing a neighbor’s dog to stay at the

apartment, defendant retrieved a sawed-off shotgun from inside his apartment; and, while


       9 Arguably, the prosecution could have charged a firearm enhancement under
section 12022, subdivision (a) (armed with a firearm in the commission of a felony), or
section 12022.5, subdivision (a) (personal use of a firearm in the commission of a
felony). There is, however, authority that suggests that such enhancement allegations
would have been improper. (See, e.g., In re Pritchett, supra, 26 Cal.App.4th at p. 1757
[firearm use enhancement to crime of possession of short-barreled shotgun stricken
because although shotgun was used during the defendant’s possession of the gun, it was
not used “‘in the commission’” of his crime of possession]; People v. Arzate (2003) 114
Cal.App.4th 390, 400-401 [gun use enhancement stricken because such use was “not
committed in the commission of the static offense of carrying a concealed weapon in a
vehicle.” (Italics omitted.)])



                                            16
holding the shotgun, told his girlfriend, “ ‘let’s get it on.’ ” The record shows that several

witnesses saw defendant in actual physical possession of the shotgun. A witness also saw

defendant walk out of his apartment with a shotgun and hide the gun in nearby bushes.

       Defendant contends that he could not use, or be armed, with a firearm during the

commission of his current offenses, because the offenses for which he was convicted

were firearm possession offenses, and there is no evidence to suggest he used or was

armed with a firearm during the commission of another offense. Defendant appears to

maintain that possessory offenses can never fall under the armed-with-a-firearm

exclusion, because one cannot use, or be armed with a firearm “during the commission”

of such offenses without another separate or tethering offense. We reject these

arguments.

       Where, as here, the record shows that a defendant convicted of possession of a

firearm 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 the Act. As previously noted, the record here demonstrates that defendant was in

actual physical possession of the shotgun, and therefore armed with a firearm during the

commission of his possessory offenses. Defendant’s record of conviction shows the

prosecution’s case was based on evidence that defendant not only possessed the shotgun,




                                             17
but also that he was armed with the shotgun during his commission of the current

offenses.10

       Defendant’s exact arguments were recently rejected by our colleagues in Division

One of the Fourth Appellate District in White, supra, 223 Cal.App.4th 512, and more

recently by our colleagues in the Fifth Appellate District in People v. Osuna (2014) 225

Cal.App.4th 1020 (Osuna), petn. for review denied July 9, 2014, S218183. White

deemed it appropriate for the court to look beyond the crime for which defendant had

been sentenced to determine whether the “armed-with-a-firearm” exception to

resentencing applied. (White, at p. 523.) There, the defendant had been convicted and

sentenced as a felon in possession of a firearm. The court recognized that “possession of

a firearm does not necessarily require that the possessor be armed with it” (id. at p. 524),

but affirmed the denial of resentencing because “the record of conviction establishes that

the applicable resentencing eligibility criterion set forth in section 1170.126[,

subdivision] (e)(2) is not satisfied, and, thus, [the defendant] is ineligible for resentencing

relief.” (Id. at p. 524.)

       The trial evidence in White showed that the prosecution’s case was not based on

the theory that White was guilty of possession of a firearm by a felon because he had

constructive possession of the firearm; it was based on the theory that he was guilty of


       10 We note that while the record in this case shows defendant was in actual
physical possession of a gun, a conviction for possession of a gun can also be based on
constructive possession of the gun. (Sifuentes, supra, 195 Cal.App.4th at pp. 1417 &
1417, fn. 3)


                                              18
that offense because he had actual physical possession of the firearm. (White, supra, 223

Cal.App.4th at p. 525.) The court noted: “The trial evidence shows the police officers

conducting a surveillance of White’s residence saw White walking towards his pickup

truck and carrying a rolled-up cloth (sweatpants) with an object inside. The officers

believed White might be armed, and when they moved towards him and drew their guns,

White began to run, reached inside the rolled-up sweatpants he was carrying, and soon

thereafter threw both the sweatpants and the object inside the sweatpants into the bed of

his truck. The officers arrested White and found that the object he had thrown into the

truck bed was a loaded .357-magnum revolver. [¶] Furthermore, the record shows White

asserted in a pretrial motion that the object he threw into the back of his truck was ‘a

hand gun in a holster rolled up inside’ the sweatpants. Also, White’s counsel stipulated

during his closing argument at trial that White had been armed.” (Ibid.)

       The court in Osuna, supra, 225 Cal.App.4th 1020 reached a similar conclusion. As

in White, the defendant in Osuna was serving a three strikes sentence after having been

convicted of being a felon in possession of a firearm, but the People did not allege he was

armed with a firearm at the time or allege a sentence enhancement based on being armed

with a firearm. (Osuna, at p. 1027.) The trial court denied the defendant’s petition for

resentencing, concluding he was ineligible because he was armed with a firearm during

the commission of his offense. (Id. at p. 1028.) The appellate court concluded the record

contained evidence that the defendant “had a firearm available for offensive or defensive

use” during the commission of his offense, because he “was actually holding a handgun.”



                                             19
(Id. at p. 1030.) “Thus, factually he was ‘armed with a firearm’ within the meaning of

the Act.” (Ibid.)

       In Osuna, supra, 225 Cal.App.4th 1020, the defendant argued he was not

ineligible for resentencing under section 1170.126, subdivision (e)(2), because a finding

of being armed with a firearm had to be tethered to an underlying conviction or there had

to be a “ ‘facilitative nexus’ ” between the arming and the possession. (Osuna, at

p. 1030.) The appellate court agreed tethering and a “ ‘facilitative nexus’ ” are required

when imposing an “ ‘armed with a firearm’ ” sentence enhancement under section 12022.

(Osuna, at pp. 1030-1031.) “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. [Citation.]” (Id. at p. 1032.) “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




                                             20
resentencing if he or she was armed with a firearm during the unlawful possession of that

firearm.” (Ibid.)

       Applying White and Osuna to this case, we conclude defendant was armed with a

firearm during the commission of his commitment offenses for possession of a firearm by

a felon and possession of a short-barreled shotgun. Neither conviction requires a specific

finding that the defendant was “armed with a firearm” during the commission of the

offense, but both offenses may be committed by an armed defendant. As previously

explained, “[a] defendant is armed if the defendant has the specified weapon available for

use, either offensively or defensively. [Citations.]” “ ‘[A] firearm that is available for

use as a weapon creates the very real danger it will be used.’ [Citation.] Therefore, ‘[i]t

is the availability—the ready access—of the weapon that constitutes arming.’

[Citation.]” (Bland, supra, 10 Cal.4th 991 at p. 997, italics omitted.) The defendant is

considered armed even if the weapon is inoperable (People v. Nelums (1982) 31 Cal.3d

355, 359-360) or, as here, it is unloaded (People v. Masbruch (1996) 13 Cal.4th 1001,

1006-1007).

       Our conclusion, that the record of defendant’s conviction shows he is ineligible

for resentencing relief is consistent with the purposes of the Act. As noted, the Act is

intended to provide resentencing relief to low-risk, nonviolent inmates serving life

sentences for petty crimes, such as shoplifting and simple drug possession. (Pamphlet,

supra, text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105.) Defendant’s current offenses

of felon in possession of a firearm and possession of a short-barreled shotgun—when



                                             21
viewed in light of the fact that he was physically armed with the firearm during the

commission of those offenses—cannot be deemed a petty or minor crime for purposes of

the Act. The Act is also intended to limit eligibility for resentencing to inmates who have

not committed current and prior offenses, including gun-related felonies. (Pamphlet,

supra, Analysis by Legislative Analyst, pp. 49-50.)

       D.     Use of Record of Conviction to Determine Eligibility

       Defendant argues that the People failed to present proper evidence regarding his

section 1170.126 petition, claiming the trial court is limited to the “record of conviction”

and that the police reports, probation report, and transcripts of the 911 call and witness

statements submitted by the People are not proper sources of information regarding the

factual circumstances of the crime. Defendant, however, did not object to the documents

submitted by the People or challenge them. As such, defendant has forfeited this claim.

(See Evid. Code, § 353; People v. Abel (2012) 53 Cal.4th 891, 924; People v. Nelson

(2011) 51 Cal.4th 198, 223; People v. Rivera (2011) 201 Cal.App.4th 353, 360-361.)

       In any event, this court’s unpublished opinion in defendant’s prior underlying

appeal is sufficient evidence of the record of conviction. In People v. Woodell (1998) 17

Cal.4th 448 (Woodell), our Supreme Court held that the record of a prior conviction

incorporated both the trial and appellate court record, including the appellate opinion.

(Id. at p. 458.) In so holding, the Woodell court noted that “the appellate opinion itself,

representing the action of a court, clearly comes within the exception to the hearsay rule

for official records” (ibid.) and that it is “a judicial statement and can help determine the



                                              22
nature of the crime of which the defendant had been convicted.” (Id. at p. 459.)

“ ‘[A]ppellate opinions, in general, are part of the record of conviction that the trier of

fact may consider in determining whether a conviction qualifies under the sentencing

scheme at issue.’ [Citation.]” (People v. Trujillo (2006) 40 Cal.4th 165, 180-181

(Trujillo), quoting Woodell, supra, 17 Cal.4th 448 at p. 457.) A trial court may look not

only to the record of conviction for a particular crime when determining the facts

underlying the offense for purposes of sentencing on a subsequent conviction, but to

other records which contain sufficient procedural protections to ensure their reliability.

(See People v. Blackburn (1999) 72 Cal.App.4th 1520, 1526-1527, 1531-1532 [Fourth

Dist., Div. Two] [preliminary hearing transcript on prior offenses supported

determination prior conviction was a serious felony]; Trujillo, at pp. 177-180 [same].)

       We see no reason why the Act would change this rule. (Accord, White, supra, 223

Cal.App.4th at p. 525 [reliance on record of conviction including information, pretrial

motion, and closing argument]; Blakely, supra, 225 Cal.App.4th at pp. 1058-1063 [a trial

court may examine relevant, reliable, admissible portions of the record of conviction to

determine disqualifying factors]; People v. Bradford (2014) 227 Cal.App.4th 1322, 1336-

1338 (Bradford) [determination of whether the defendant was disqualified from

resentencing is based solely on evidence found in record of conviction akin to

establishing the nature of a prior conviction for purposes of a sentencing enhancement

but may not consider new evidence outside of the record of conviction].) Accordingly,

we find a trial court may rely on the record of conviction, including this court’s prior



                                              23
opinion in defendant’s appeal from his original judgment and trial transcripts, as evidence

to determine eligibility under the Act. (Trujillo, supra, 40 Cal.4th at pp. 180-181;

Woodell, supra, 17 Cal.4th at p. 457.)

       If the prior opinion does not sufficiently establish the facts, “the defendant, who

suffered the conviction and took the appeal, would know of and be able to challenge any

material flaws or omissions in the opinion.” (Woodell, supra, 17 Cal.4th at p. 457.)

Indeed, defendant makes no claim that our prior opinion misstated the facts or that the

trial court misinterpreted the facts in our prior opinion. In such circumstances, we see no

reason why a trial court’s use of our prior opinion to determine the facts is improper. The

opinion clearly indicates defendant was armed with and used a firearm during the

commission of his possession of the firearm, and defendant does not argue otherwise on

appeal. The record of defendant’s conviction shows that defendant retrieved a sawed-off

shotgun from inside his apartment; and while holding the shotgun, threatened his

girlfriend. Hence, even if the People failed to present proper evidence to challenge

defendant’s eligibility under the Act, this court’s prior opinion clearly indicates defendant

was ineligible to be resentenced as a second strike offender under the Act.

       E.     “Plead and Prove” Requirement

       The People argue that the resentencing provisions of section 1170.126 do not

contain a pleading and proof requirement. Citing the “plead and prove” language

contained in sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C)

(discussed, post), defendant claims that the provisions of sections 1170.126, 667,



                                             24
subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C), “were enacted together as a

complete package” and are “interrelated.” Therefore, defendant asserts, the prosecution

was required to have “pled and prove” that he used or was armed with a firearm, and

since here the prosecution did not plead or prove that he used or was armed with a

firearm during the commission of the current offenses, the armed-with-a-firearm

exclusion does not apply.

       Section 667, subdivision (e)(2)(C), provides in pertinent part that, “[i]f a defendant

has two or more prior serious and/or violent felony convictions . . . and the current

offense is not a serious or violent felony, . . . the defendant shall be sentenced” (italics

added) as a second strike offender “unless the prosecution pleads and proves” (italics

added) any of the four enumerated exceptions or exclusions set forth in clauses (i)

through (iv) of section 667, subdivision (e)(2)(C). (Kaulick, supra, 215 Cal.App.4th

1279 at p. 1293).)

       Section 1170.12, subdivision (c)(2)(C), similarly provides that, “[i]f a defendant

has two or more prior serious and/or violent felony convictions . . . and the current

offense is not a [serious or violent] felony . . . , the defendant shall be sentenced” (italics

added) as a second strike offender “unless the prosecution pleads and proves” (italics

added) any of the four enumerated exceptions or exclusions set forth in clauses (i)

through (iv) of section 1170.12, subdivision (c)(2)(C). (See Kaulick, supra, 215

Cal.App.4th at p. 1293.)




                                              25
       We reject defendant’s contention that the pleading and proof requirement set forth

in both section 667, subdivision (e)(2)(C), and section 1170.12, subdivision (c)(2)(C), is

incorporated into section 1170.126. Defendant’s reliance on the plead-and-prove

language is unavailing. “. . . Although section 1170.126, subdivision (e)(2), expressly

cross-references clauses (i) to (iii), inclusive of sections 667, subdivision (e)(2)(C), and

1170.12, subdivision (c)(2)(C), nothing in the language of section 1170.126,

subdivision (e)(2), or of any of the other subdivisions of section 1170.126 governing

an inmate’s petition for resentencing relief under the Reform Act references the plead-

and-prove language.” (White, supra, 223 Cal.App.4th at pp. 526-527.)

       As the White court found, defendant’s reference to the pleading and proof

requirement “plainly is a part of only the prospective part of the Reform Act, which

governs the sentencing of a defendant with two or more prior serious and/or violent

felony convictions who has suffered a third felony conviction; it is not a part of

section 1170.126, the retrospective part of the Reform Act that governs a petition for

resentencing brought by an inmate already serving a life sentence under the Three Strikes

law.” (White, supra, 223 Cal.App.4th at p. 527, italics in original; accord, Osuna, supra,

225 Cal.App.4th at p. 1033; Blakely, supra, 225 Cal.App.4th at p. 1058.) The court in

Kaulick explained: “[T]here are two parts to the Act: the first part is prospective only,

reducing the sentence to be imposed in future three strike cases where the third strike is

not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second part is

retrospective, providing similar, but not identical, relief for prisoners already serving



                                              26
third strike sentences in cases where the third strike was not a serious or violent felony

(Pen. Code, § 1170.126).” (Kaulick, supra, 215 Cal.App.4th at p. 1292.) The Kaulick

court also explained that, “under the prospective part of the Act, if the defendant’s current

third strike offense is not serious or violent, and none of four enumerated exceptions

applies, the defendant ‘shall be’ sentenced as if the defendant had only a single prior

strike.” (Id. at p. 1293.)

       Thus, the Act requires pleading and proof when ineligibility for lenient treatment

under the Act applies prospectively, that is, to persons currently charged with a three

strikes offense that is not itself defined as serious or violent. (§§ 667, subd. (e)(2)(C);

1170.12, subd. (c)(2)(C).) No pleading and proof language appears in the part of the Act

addressing relief to persons previously sentenced under the Three Strikes law.

(§ 1170.126, subd. (e).) The retrospective relief under section 1170.126 is conditioned

upon an eligible commitment offense, which “the [trial] court shall determine” on

“receiving a petition for recall of sentence under this section.” (§ 1170.126, subd. (f),

italics added.)

       Nowhere in the resentencing provisions of section 1170.126, subdivision (e),

is there any reference to pleading and proof of disqualifying factors. Generally speaking,

a pleading and proof requirement will not be implied. (See People v. Griffis (2013)

212 Cal.App.4th 956, 962-965.) Instead, as noted above, under section 1170.126,

subdivision (f), “the [trial] court shall determine whether the petitioner satisfies the

criteria in subdivision (e).” (Italics added.) There is no provision for the People to plead



                                              27
or prove anything, the burden falls on the trial court to make the determination whether a

defendant meets the prima facie criteria for recall of sentence.

       In rejecting an interpretation that a defendant becomes presumptively entitled to

resentencing absent proof of dangerousness beyond a reasonable doubt, Kaulick, supra,

215 Cal.App.4th 1279, notes it is determinative that the drafters omitted any requirement

for the pleading and proof of dangerousness in the latter statute. (Id. at p. 1303, fn. 26;

see id. at pp. 1298-1299, fn. 21 [dictum; “[b]y its terms” § 1170.126 does not require

pleading and proof of circumstances rendering commitment offense ineligible].) Nothing

in the plain language of section 1170.126, subdivision (e)(2), requires that the ample

disqualifying facts demonstrating defendant was armed with a firearm during the

commission of his commitment offenses had to have been pleaded and proven at his trial.

(E.g., White, supra, 223 Cal.App.4th at p. 527 [no pleading and proof requirement under

§ 1170.126]; Blakely, supra, 225 Cal.App.4th at pp. 1058-1059; Osuna, supra, 225

Cal.App.4th at p. 1033 [same]; Bradford, supra, 227 Cal.App.4th at pp. 1333-1334

[same].) Therefore, section 1170.126 does not of itself support defendant’s claim that his

ineligibility was subject to pleading and proof in the proceedings underlying the

commitment offenses of being armed with a firearm during the commission of the

offenses.

       We also reject defendant’s assertion that using a disqualifying factor not pled and

proved to the jury would violate his constitutional rights to due process and a jury trial




                                             28
under Apprendi, supra, 530 U.S. 466 and its progeny. He argues that he was entitled to a

jury trial to determine whether he was armed with a gun.

       Considered in conjunction with each other, the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution require that each element of a crime or

sentence enhancement be proved to the jury beyond a reasonable doubt. (United States v.

Gaudin (1995) 515 U.S. 506, 509-510; In re Winship (1970) 397 U.S. 358, 364; People v.

Jones (1999) 75 Cal.App.4th 616, 631.) Apprendi states that “[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

(Apprendi, supra, 530 U.S. 466 at p. 490.) Subsequently, in Blakely v. Washington

(2004) 542 U.S. 296, the high court clarified that the “prescribed statutory maximum” for

purposes of the right to a jury trial is not necessarily the maximum penalty provided by

statute for the crime; rather, it is “the maximum sentence a judge may impose solely on

the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at

p. 303, italics omitted.) And in Alleyne v. United States (2013) __ U.S. __ [133 S.Ct.

2151, 186 L.Ed.2d 314] the same court declared that a fact which increases the

mandatory minimum sentence must likewise be submitted to a jury, and proved beyond a

reasonable doubt. (133 S.Ct. at p. 2154, 186 L.Ed.2d at p. 321.) Thereafter, the high

court in Cunningham v. California (2007) 549 U.S. 270, explained that, “under the Sixth

Amendment, any fact that exposes a defendant to a greater potential sentence must be

found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a



                                             29
preponderance of the evidence.” (Id. at p. 281.) Defendant’s reliance on these cases is

based upon a contention that because the finding that defendant was armed with or used a

firearm during the felon in possession of a firearm offense increased the mandatory

minimum term of the resentencing provision from a two strikes sentence to a three strikes

sentence, he was entitled to a have jury determine whether he was armed with or used a

gun.

       Of course, constitutional requirements supersede statutory language. Defendant,

however, misapplies Apprendi and its progeny to resentencing petitions under

section 1170.126. The determinations required under section 1170.126 are not factors

justifying enhancing a defendant’s sentence beyond the statutory maximum. (See

Kaulick, supra, 215 Cal.App.4th at pp. 1302-1304.) As such, “the United States Supreme

Court has already concluded that its opinions regarding a defendant’s Sixth Amendment

right to have essential facts found by a jury beyond a reasonable doubt do not apply to

limits on downward sentence modifications due to intervening laws.” (Id. at p. 1304,

citing Dillon v. United States (2010) 560 U.S. 817, 828-829 (Dillon).) “The retrospective

part of the Act is not constitutionally required, but an act of lenity on the part of the

electorate. It does not provide for wholesale resentencing of eligible petitioners. Instead,

it provides for a proceeding where the original sentence may be modified downward.

Any facts found at such a proceeding, such as dangerousness, do not implicate Sixth

Amendment issues. Thus, there is no constitutional requirement that the facts be

established beyond a reasonable doubt.” (Kaulick, at pp. 1304-1305.)



                                              30
       The failure of the applicability of these cases here lies in the difference between a

proceeding which would increase a sentence and one which would decrease the sentence.

The resentencing provisions under section 1170.126 are akin to a hearing regarding

“downward sentence modifications due to intervening laws” (Kaulick, supra, 215

Cal.App.4th at p. 1304; see also Dillon, supra, 560 U.S. at p. 829), and therefore

Apprendi and the limitations of the Sixth Amendment do not apply to resentencing

determinations. (Accord, White, supra, 223 Cal.App.4th at p. 527; see Osuna, supra, 225

Cal.App.4th at p. 1039 [“Apprendi and its progeny do not apply to a determination

of eligibility for resentencing under [section 1170.126]”]; Blakely, supra, 225

Cal.App.4th at p. 1060 [same].) “A finding an inmate is not eligible for resentencing

under section 1170.126 does not increase or aggravate that individual’s sentence; rather,

it leaves him or her subject to the sentence originally imposed.” (Osuna, at p. 1040;

Blakely, at p. 1061.) A trial court’s determination that a defendant is ineligible for

resentencing pursuant to section 1170.126 does “not increase the penalty to which [a]

defendant [is] already subject, but instead disqualifie[s] [a] defendant from an act of

lenity on the part of the electorate to which [a] defendant was not constitutionally

entitled.” (Osuna, at p. 1040; Blakely, at p. 1062.) Here, defendant sought relief under

the retrospective portion of the Act which is the result of an act of lenity and, therefore,

does not entitle defendant to a jury determination of eligibility.

       In sum, we conclude that, where the record establishes the prosecution’s case was

based on the theory a defendant convicted of possession of a firearm by a felon used or



                                              31
was armed with the firearm, e.g., he had a firearm capable for ready use, during the

commission of that offense, the armed-with-a-firearm exclusion applies and, thus, a

defendant is not entitled to resentencing relief under the Act. We also hold that, in such a

case, a trial court may deny section 1170.126 resentencing relief under the armed-with-a-

firearm exclusion even if the accusatory pleading did not allege he or she used or was

armed with a firearm during the commission of that possessory offense.

       Accordingly, we will reverse the order granting defendant’s petition for a recall of

his life sentence and for resentencing as a second strike offender under the Act.

                                             III

                                      DISPOSITION

       The order granting defendant’s petition for a recall of his life sentence and for

resentencing as a second strike offender under the Act is reversed.

       CERTIFIED FOR PUBLICATION

                                                                RAMIREZ
                                                                                           P. J.
We concur:



KING
                          J.



MILLER
                          J.




                                             32
