Filed 7/25/14 (unmodified opn. attached)
                                CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                 THIRD APPELLATE DISTRICT
                                           (Sacramento)
                                               ----




THE PEOPLE,                                                             C073731

                 Plaintiff and Respondent,                    (Super. Ct. No. 94F05502)

        v.                                                      ORDER MODIFYING
                                                                    OPINION
KENNETH ELDER,
                                                                   [NO CHANGE IN
                 Defendant and Appellant.                            JUDGMENT]




THE COURT:


        It is ordered that the opinion certified for publication and filed herein on July 15,
2014, be modified as follows:
        On page 2, footnote 2, delete the parenthetical following the first sentence and
replace it with the following parenthetical:
        (People v. Yearwood (2013) 213 Cal.App.4th 161, 168 (Yearwood) [no retroactive
effect]; People v. Conley (2013) 215 Cal.App.4th 1482, review granted Aug. 14, 2013,
S211275 [presenting issue of retroactivity].)


                                                1                  (SEE CONCURRING &
                                                                  DISSENTING OPINION)
       On page 4, footnote 6, delete the entire footnote and replace it with the following
new footnote 6:
       People v. Osuna (2014) 225 Cal.App.4th 1020, 1030-1032 (petn. for review
denied July 9, 2014, S218183) (Osuna) is in agreement: “The two are not the same.”
       On page 6, footnote 7, delete the last sentence of the footnote, which begins with
“People v. Blakely”, and ends with “are not yet final.” and replace it with the following:
       People v. Blakely (2014) 225 Cal.App.4th 1042, 1052-1053 (petn. for review
denied July 9, 2014, S218914) (Blakely) and Osuna, supra, 225 Cal.App.4th at page 1029
are also in accord.
       On page 7, footnote 8, delete the entire footnote and replace it with the following
new footnote 8:
       Again, Blakely and Osuna make the same points as White with respect to rejecting
a requirement of pleading and proof. (Blakely, supra, 225 Cal.App.4th at pp. 1058-1059
& Osuna, supra, 225 Cal.App.4th at p. 1033; see fn. 7, ante, at p. 6.)
       On page 8, second full paragraph, penultimate line, delete the word “see” before
“Blakely, supra, 225 Cal.App.4th at p. 1060 & Osuna,” so the parenthetical will read as
follows:
       (Accord, Kaulick, supra, 215 Cal.App.4th at pp. 1304-1305, citing Dillon v.
United States (2010) 560 U.S. 817, 828-829 [177 L.Ed.2d 271]; Blakely, supra,
225 Cal.App.4th at p. 1060 & Osuna, supra, 225 Cal.App.4th at pp. 1039-1040 [both
citing Kaulick].)
       On page 2 of the concurring and dissenting opinion, delete the entirety of footnote
1 and replace it with the following new footnote 1:
       There is presently a debate whether the accurate determination that a petition is
facially insufficient under section 1170.126 is appealable and therefore subject to
summary dismissal without consideration of the merits of the appeal, which is pending in
the California Supreme Court (People v. Wortham (2013) 220 Cal.App.4th 1018, review

                                             2
granted Jan. 15, 2014, S214844; People v. Leggett (2013) 219 Cal.App.4th 846, review
granted Dec. 18, 2013, S214264; Teal v. Superior Court (2013) 217 Cal.App.4th 308,
review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941,
review granted July 31, 2013, S212017; People v. Haynes (2014) 225 Cal.App.4th 997,
review granted July 9, 2014, S218982).


      There is no change in judgment.


BY THE COURT:


                HULL               , Acting P. J.


                ROBIE               , J.




                                           3
Filed 7/15/14 (unmodified opn.)
                                  CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                  THIRD APPELLATE DISTRICT
                                         (Sacramento)
                                             ----




THE PEOPLE,                                                        C073731

                 Plaintiff and Respondent,                (Super. Ct. No. 94F05502)

        v.

KENNETH ELDER,

                 Defendant and Appellant.




       APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M.
Earl, Judge. Order affirmed; alternately, appeal treated as petition for a writ of habeas
corpus and denied.

      George Bond and John Hargreaves, under appointment by the Court of Appeal, for
Defendant and Appellant.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.




                                              1                (SEE CONCURRING &
                                                              DISSENTING OPINION)
       In December 2012, defendant Kenneth Elder filed what he titled a petition for a
writ of habeas corpus (though invoking Pen. Code, § 1170.126)1 seeking to recall his
1995 indeterminate life sentence. The statute, enacted pursuant to a November 2012
initiative measure, provides retrospective relief under narrow criteria from indeterminate
life sentences imposed for recidivism. Defendant alleged that his commitment offense—
unlawful possession (as a convicted felon) of a gun—was not a “serious” or violent
felony and did not otherwise come within any exception to section 1170.126, and
therefore he was entitled to be considered for resentencing to a determinate sentence of
double the term that would otherwise apply to his offense (which is what a court would
impose under the prospective amendments to the recidivist sentencing statutes enacted
as part of the same initiative). (§ 1170.126, subd. (f); see § 667, subd. (e)(1).)

       Treating the filing as a recall petition under the statute,2 the present trial court
(Hon. Laurie M. Earl)3 denied the petition without a hearing, finding defendant did not
qualify for relief. Relying on the facts in our decision on appeal from defendant’s
original sentence (People v. Elder (Feb. 3, 1997, C020780) [nonpub. opn.]), the trial
court found that during the commission of the commitment offense defendant was armed
with a gun and thus his commitment offense was ineligible for resentencing (§ 1170.126,
subd. (e)(2), cross-referencing § 667, subd. (e)(2)(C)(iii)).



1 Undesignated statutory references are to the Penal Code.

2 As defendant pursued relief from a final conviction pursuant to section 1170.126, we
do not need to address the contretemps regarding whether a defendant whose sentence
is not yet final on appeal is entitled to application of the revised sentencing provisions
without filing a petition for recall pursuant to section 1170.126. (Compare People v.
Yearwood (2013) 213 Cal.App.4th 161, 168 (Yearwood) [no] with People v. Contreras
(2013) 221 Cal.App.4th 558 [yes], review granted Jan. 29, 2014, S215516.)
3 The original sentencing judge (Hon. John V. Stroud (Ret.)) was no longer available.
(§ 1170.126, subds. (b), (j).)


                                               2
       Contending this ruling was an order after judgment affecting his substantial rights
(§ 1237, subd. (b)), defendant filed an appeal.4 As defendant’s commitment offense was
not facially ineligible for resentencing, we have jurisdiction on appeal at least to
determine whether the denial affected his substantial rights. He argues that as a matter of
statutory interpretation he cannot be armed while committing the crime of unlawful
possession of a gun; alternately, he argues that the prosecution had to plead and prove
this circumstance in the proceedings underlying his commitment offense. Disagreeing
with both claims, we find the trial court properly concluded that defendant was ineligible
for resentencing. Assuming that denial of his petition is appealable even if it did not
affect his substantial rights, this court will affirm the order. (Alternately, this court will
treat the appeal as a petition for a writ of habeas corpus and deny it.)

       There are only a limited number of relevant background facts beyond those stated
in the introduction. We will incorporate them in the Discussion rather than set them out
separately.

                                        DISCUSSION

       I. For Purposes of Section 1170.126, Unlawful Possession of a Firearm
                 Can Constitute Being Armed During an Offense

       As cross-referenced in section 1170.126, subdivision (e)(2), a commitment offense
is ineligible for recall of sentence if “[d]uring [its] commission . . . , 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), italics added.) The parties have
not suggested that we should interpret “armed” any differently in this context than its




4 Defendant filed a motion to take judicial notice of the record in his prior appeal; we
granted the motion, though we construe it as one to incorporate the record by reference in
the present proceedings.


                                               3
interpretation for purposes of the firearm enhancement in section 12022:5 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. (People v. Pitto (2008)
43 Cal.4th 228, 239-240.)

       With section 12022 as his springboard, defendant launches into a survey of cases
applying the armed enhancement (that we do not need to recapitulate) in support of the
unremarkable point that an enhancement of necessity does not have any independent
existence and must as a result be tied to an underlying offense (People v. Izaguirre (2007)
42 Cal.4th 126, 134; People v. Wims (1995) 10 Cal.4th 293, 304), concluding on this
basis that ineligibility for resentencing for being “armed” therefore must require
something beyond the substantive offense of possession itself. The illogic of this line of
reasoning rests on its conflating the criterial definition of an ineligible offense (being
armed during the commission of such offense) with the derivative nature of the armed
enhancement (which requires being armed in the commission of an offense).6 Our task
instead is to divine whether possessing a gun can constitute being armed with the gun
during the possession.

       Neither we nor the parties have identified any authority in which the prohibition
in the arming enhancement on its use with offenses that have arming as an element arose


5 The statute prescribes a one-year enhancement for “a person who is armed with a
firearm in the commission of a felony . . . unless the arming is an element of that
offense.” (§ 12022, subd. (a)(1), italics added.)
6 People v. Osuna (2014) 225 Cal.App.4th 1020, 1030-1032 (petn. for review filed
May 28, 2014, S218183) (Osuna) makes the same point (“The two are not the same.”).
As the case is not yet final, we do not rely on it.


                                               4
in the context of an underlying conviction for unlawful gun possession; perhaps the point
has seemed self-evident to prosecutors. However, our own research has identified People
v. Cooper (1967) 256 Cal.App.2d 500, which concluded that an analogous statute
imposing a minimum indeterminate term for a defendant armed during the commission
of an offense (former § 3024, as amended by 2 Stats. 1957, ch. 1617, § 3, pp. 2964-2965)
cannot augment the penalty otherwise provided for a conviction for being a felon in
possession of a firearm, because “an integral part of [former] section 12021 is being
armed with a deadly weapon.” (Cooper, supra, at p. 505, italics added.)

       Of some probative value on this issue is the somewhat analogous principle (not
considered in the briefing) in the context of section 654 that, while applied in a collection
of permutations of facts and sentences, unvaryingly finds that a felon’s possession of a
gun at the instant of committing an offense (if no evidence of antecedent or subsequent
possession) is the same act that underlies various gun enhancements, and cannot be the
subject of additional punishment. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.)

       Obliquely invoking the interpretive principle that we cannot presume a drafter
intended absurd results (In re D.B. (2014) 58 Cal.4th 941, 945-946), defendant argues in
his reply brief that such an interpretation would render ineligible any defendant who
“step[ped] near a firearm,” and the drafters could not have intended that “every prisoner
convicted of gun possession would be categorically excluded from resentencing.” This
rhetorical hyperbole does not withstand analysis. A conviction for possession of a gun
must be based on intentional actual or constructive possession of the gun (People v.
Sifuentes (2011) 195 Cal.App.4th 1410, 1417 & fn. 3), not merely walking nearby (id. at
p. 1417). Moreover, although we will not hazard a definitive effort to parse the sheep
from the goats (see Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 328), not
every commitment offense for unlawful possession of a gun necessarily involves being
armed with the gun, if the gun is not otherwise available for immediate use in connection


                                              5
with its possession, e.g., where it is under a defendant’s dominion and control in a
location not readily accessible to him at the time of its discovery. In any event, the
electorate’s concern was with conserving the public fisc while making sure that
dangerous felons did not benefit from any of the amendments and remained sequestered.
(Yearwood, supra, 213 Cal.App.4th at p. 170.) While, as defendant asserts, possession of
a gun of itself is not criminal, a felon’s possession of a gun is not a crime that is merely
malum prohibitum. As we stated nearly 20 years ago, “public policy generally abhors
even momentary possession of guns by convicted felons who, the Legislature has found,
are more likely to misuse them.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037-
1038.) Therefore, even if the great majority of commitments for unlawful gun possession
come within our interpretation of this eligibility criterion, it would not run afoul of the
voters’ intent.7

           II. Circumstances Rendering a Commitment Offense Ineligible
                      Are Not Subject to Pleading and Proof

       Under the 2012 amendments, a third qualifying felony conviction is prospectively
subject to a minimum indeterminate life sentence of 25 years only where a prosecutor
pleads and proves that the prior convictions were for serious or violent felonies, and that
a commitment offense is either a serious or violent felony, or otherwise comes within one
of four qualifying classes of offenses. (§ 667, subd. (e)(2)(C).) On the other hand, the


7 We note the recently decided People v. White (2014) 223 Cal.App.4th 512, 519, review
denied April 30, 2014, S217030 (White) also finds unlawful gun possession can be an
ineligible commitment offense (via a different route of analysis based on the arguments
in that case), and also makes the point that if constructive possession was the basis for the
prior conviction, not every conviction for possession will establish that a defendant was
armed (although the defendant at issue had been carrying the gun and thus indisputably
was armed) (White, at pp. 524-525). People v. Blakely (2014) 225 Cal.App.4th 1042,
1052-1053 (petn. for review filed May 30, 2014, S218914) (Blakely) and Osuna, supra,
225 Cal.App.4th at page 1029 are also in accord, but we do not rely on them because they
are not yet final.


                                              6
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.) In rejecting an
interpretation that a defendant becomes presumptively entitled to resentencing absent
proof of dangerousness beyond a reasonable doubt, People v. Superior Court (Kaulick)
(2013) 215 Cal.App.4th 1279 (Kaulick) 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 also 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]; accord, White, supra, 223 Cal.App.4th at p. 527.) 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 offense of his being
armed.

         Defendant asserts section 1170.126 is “subject” to the requirement of pleading and
proof in section 667. However, the former statute cross-references only “the offenses
appearing in” (§ 1170.126, subd. (e)(2), italics added) the four subdivisions of section
667, subdivision (e)(2)(C), and not the text preceding them that specifies the procedural
prerequisite of pleading and proof. (White, supra, 223 Cal.App.4th at pp. 526-527.)8

         Since we do not find anything ambiguous about the lack of a requirement for
pleading and proof of ineligibility, defendant’s invocation of the “rule of lenity” does not
have any relevance. In any event, the lenity rule is limited to situations in which intrinsic
or extrinsic evidence of the Legislature’s intent results in reasonable interpretations that



8 Again, Blakely and Osuna make the same points as White with respect to rejecting a
requirement of pleading and proof, but we do not rely on them because they are not yet
final. (Blakely, supra, 225 Cal.App.4th at pp. 1058-1059 & Osuna, supra,
225 Cal.App.4th at p. 1033; see fn. 7, ante, at p. 6.)


                                              7
stand in equipoise. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339, fn. 6.) Such
circumstance does not exist in this context.

       It is also irrelevant that it is for a trier of fact (and not the trial court) to sustain a
gun enhancement. We are not concerned here with an enhancement but with a criterion
for mitigation of sentence.

       For the same reason, defendant’s reliance on the principle in the line of cases that
include Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] is misplaced. As
we noted in People v. Benitez (2005) 127 Cal.App.4th 1274, 1277-1278, under these
cases any fact increasing punishment beyond the statutory maximum authorized on facts
necessarily found in a jury’s verdict must itself be the subject of a jury finding, but this
does not apply to facts rendering a defendant ineligible for mitigation of a punishment
that the facts underlying the verdict otherwise authorize. (Accord, Kaulick, supra,
215 Cal.App.4th at pp. 1304-1305, citing Dillon v. United States (2010) 560 U.S. 817,
828-829 [177 L.Ed.2d 271]; see Blakely, supra, 225 Cal.App.4th at p. 1060 & Osuna,
supra, 225 Cal.App.4th at pp. 1039-1040 [both citing Kaulick].)9

       Finally, defendant suggests it is improper to allow a trial court to find a defendant
ineligible on the basis of facts in the underlying proceeding that the parties did not have
any incentive to litigate at the time, in the absence of a pleading and proof requirement.



9 Defendant contends for the first time in his reply brief that Pepper v. United States
(2011) 562 U.S. ___ [179 L.Ed.2d 196, 214] has declared this exception for mitigation of
punishment does not apply to “ ‘plenary resentencing proceedings,’ ” a category in which
he contends section 1170.126 belongs. He does not give any good cause for failing to
cite this existing authority in his opening brief. This forfeits plenary consideration of it.
(Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061, fn. 7; People v. Baniqued
(2000) 85 Cal.App.4th 13, 29.) We accordingly confine ourselves to observing that Pepper
itself twice refers to its application to the situation of a remand for “resentencing after a
sentence has been set aside on appeal.” (Pepper, supra, at p. ___ [179 L.Ed.2d at pp. 213-
214].) That is not the context of a petition to recall a sentence.


                                                 8
But that ship sailed long ago when our Supreme Court abandoned an approach of
considering only the least adjudicated elements of a prior conviction and endorsed
consideration of the entire record of the conviction. (People v. Guerrero (1988)
44 Cal.3d 343, 345, 348, 355, overruling People v. Alfaro (1986) 42 Cal.3d 627; accord,
People v. Myers (1993) 5 Cal.4th 1193, 1201 [applying rule to prior out-of-state felony
convictions].) Indeed, People v. Woodell (1998) 17 Cal.4th 448 (Woodell) to a certain
extent refutes defendant’s exact contention. It notes that an appellate opinion might not
be an entirely accurate reflection of the facts in the record because some of the facts
might not have been of importance to the author on issues pertinent to the appeal.
However, that “some opinions might not be probative on a given question is [not a]
reason to exclude all opinions,” particularly because a defendant is able to raise issues of
material factual omissions or misstatements in an appellate opinion. (Woodell, at p. 457;
cf. People v. Garcia (2002) 97 Cal.App.4th 847, 854-855 [may petition for rehearing on
this basis, thus use of memorandum decision not improper]; Cal. Rules of Court, rule
8.500(c)(2) [failure to petition for rehearing on this basis generally forfeits factual
challenges in petition for review].) As with plea agreements that become part of the
record of conviction, “both parties . . . are expected to pay careful attention . . . . The
possibility of future consequences, including the application of habitual offender statutes,
further necessitates [that] the parties ensure the record accurately reflects the factual basis
for the plea. Therefore . . . , a defendant would normally and reasonably be expected to
object to . . . the factual recital if [it] did not accurately reflect the circumstances of the
offense . . . .” (People v. Sample (2011) 200 Cal.App.4th 1253, 1265, italics added.) In
any event, when pressed at oral argument, defendant was unable to identify facts that
might be pertinent to being armed that would not otherwise arise in litigating the issue of
possession, nor can we discern any.




                                                9
                   III. The Record of the Prior Conviction Supports
                              the Finding of Ineligibility

       We come to the gist of the case. The trial court, apparently on its own motion,
cited from our summary of the evidence in defendant’s direct appeal from his conviction
for his commitment offense.10 We had noted that in the course of executing a search
warrant on a Wednesday in June 1994 for an apartment, the members of a multiagency
task force found defendant outside the front door. He admitted living there. Among the
occupants was defendant’s young child. Inside the apartment was a loaded gun on a shelf
of an entertainment center. Another gun was in an unlocked safe in a bedroom. Police
also found a photograph of defendant (on film manufactured in March 1994) holding a
gun identical in appearance to the gun on the entertainment center shelf. At trial,
defendant contended the guns belonged to another occupant of the apartment (whom he
later married), and that he was actually only a weekend visitor in general to her apartment
rather than another occupant. (People v. Elder, supra, C020780, slip opn. at pp. 2-3 &
fn. 2.)11 The present trial court concluded this established beyond a reasonable doubt
that defendant either actually possessed the guns or had at least joint dominion and
control over them, under conditions in which the guns were readily available for his use.
Therefore, his commitment offense involved being armed during the commission of
unlawful gun possession as a felon, and was not an eligible offense for resentencing.

       Other than citing to the reporter’s transcript of his trial for testimony in support of
his defense and for a couple of quotes from closing argument—none of which adds to or
detracts from the summary in the opinion—defendant does not address whether this is a



10 It is not clear whether the trial court admitted it as an exhibit or took judicial notice.

11 We also note that the opinion later cites evidence (in refuting a claim of insufficient
evidence) that the owners referred to defendant as their tenant, who paid the rent and
negotiated with them about improvements. (People v. Elder, supra, C020780, slip opn.
at pp. 1, 18-19.)


                                              10
sufficient basis for a finding of ineligibility. Thus, he does not contend our summary of
the evidence in the official transcript of the trial was inaccurate (and in any event our
docket does not indicate he either petitioned for rehearing or review on this basis, despite
having raised sufficiency of the evidence as an issue on appeal). The facts relevant to the
claim of insufficiency of the evidence of possession are coextensive with those
establishing whether or not he was armed with the guns. In these circumstances, the
recitation of these facts in the opinion on defendant’s direct appeal are probative of the
facts underlying the conviction. (Woodell, supra, 17 Cal.4th at pp. 460, 461.) The trial
court thus properly found defendant ineligible for resentencing.

                                      DISPOSITION

       We assume the order is appealable, regardless of defendant’s eligibility for
resentencing, and affirm it. (Alternately, we treat the appeal as a petition for a writ of
habeas corpus and deny the petition.) (CERTIFIED FOR PUBLICATION)




                                                              BUTZ             , J.



We concur:



      HULL                   , Acting P. J.



      ROBIE                  , J.




                                              11
BUTZ, J., Concurring and Dissenting.

       “Naturally, I concur in the majority opinion I have prepared for the court” (People
v. Jones (1998) 17 Cal.4th 279, 319 (conc. opn. of Mosk, J.)); “[o]bviously, I concur fully
in the majority opinion I have authored” (Cowan v. Superior Court (1996) 14 Cal.4th
367, 378 (conc. opn. of Chin, J.)).

       I write separately to explain my disagreement with the chosen disposition that my
colleagues favor. Upon determining on the merits that a defendant is not eligible for
relief under section 1170.126, the proper disposition should be to dismiss the matter
because denial of the petition accordingly did not affect any substantial right of the
defendant.
Defendant’s Appeal Must be Dismissed

       Section 1237 authorizes an appeal from any order made after judgment “affecting
the substantial rights of the party.” (§ 1237, subd. (b).) Therefore, an untimely motion to
recall a sentence under the general provision (§ 1170, subd. (d)(1)) is not appealable
because a trial court has no jurisdiction to entertain such a motion in the first place, and
its denial of the motion accordingly could not affect a substantial right of the defendant.
(People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) Similarly, a petition for a writ of
coram nobis that is facially insufficient does not vest a trial court with jurisdiction to
grant relief; the denial of such a deficient petition as a result cannot affect the petitioner’s
substantial rights, and the order is not appealable. (People v. Thornton (1965)
233 Cal.App.2d 1, 2.)

       As we have concluded above, section 1170.126 confers the right to file a recall
petition only on those who are not presently serving an indeterminate term of life
imprisonment for a commitment conviction during the commission of which they were




                                               1
armed with a gun. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii).) The trial court
does not have jurisdiction otherwise to entertain a petition.1

       Whether or not we summarily dismiss an appeal at the outset without an opinion,
however, has no bearing on our disposition of an appeal after taking its merits under
consideration. As in the analogous circumstance of determining whether a claim of
instructional error raised initially on appeal affected the substantial rights of a defendant
(§ 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [must initially determine
if instructional error prejudicial, which then allows consideration of merits and reversal
of conviction]), we have at least the appellate jurisdiction to ascertain whether the trial
court properly denied a recall petition under section 1170.126 in order to determine
whether the denial affected a defendant’s substantial rights. Another analogous
circumstance arises where either a trial court has improvidently issued a certificate of
probable cause for a noncognizable issue or a defendant has appealed what is in fact an
issue requiring a certificate of probable cause; an appellate court addresses the merits of
whether the issue requires a certificate, and then dismisses the appeal rather than affirms
the judgment. (People v. Mendez (1999) 19 Cal.4th 1084, 1099-1100 (Mendez); People
v. Panizzon (1996) 13 Cal.4th 68, 89 [both dismissing appeal for failure to comply with


1 There is presently a debate whether the accurate determination that a petition is facially
insufficient under section 1170.126 is appealable and therefore subject to summary
dismissal without consideration of the merits of the appeal (People v. Wortham (2013)
220 Cal.App.4th 1018 [appealable, but affirms because commitment offense is serious
felony], review granted Jan. 15, 2014, S214844; People v. Leggett (2013)
219 Cal.App.4th 846 [nonappealable where petition on face demonstrates commitment
offense is for serious felony; appeal dismissed], review granted Dec. 18, 2013, S214264;
Teal v. Superior Court (2013) 217 Cal.App.4th 308 [nonappealable; treating appeal as
petition for writ of habeas corpus, denying relief after determining that prior conviction
rendered defendant ineligible under § 1170.126, subd. (e)(3)], review granted July 31,
2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941 [appealable, but affirms
because commitment offense was serious felony], review granted July 31, 2013,
S212017).

                                              2
§ 1237.5 after determining that challenge to negotiated sentence is in fact a challenge to
the plea]; People v Hernandez (1992) 6 Cal.App.4th 1355, 1361 [dismissal of appeal after
determining on merits that trial court erroneously issued certificate].)

       Yet in the context of section 1170.126, the “crowdsourced” approach to this issue
of substantial rights/appealability in the published, formerly published, and nonpublished
cases is in accordance with that my colleagues embrace: the assumption that the denial
of a petition is appealable regardless of a defendant’s eligibility, or the declaration that
the appeal should be deemed a petition for a writ of habeas corpus. At the risk of taking
on the role of a Victorian governess harrumphing over the enforcement of standards, I
must take issue with this disregard of the fundamental principles of appellate jurisdiction.

       Driving this approach seems to be a concern that defendants are entitled to an
accurate determination of their eligibility. But declaring the denial of a petition after
review of the merits to be a nonappealable order subject to dismissal does not preclude
relief for such defendants. Under the celebrated jurisdictional truism, an appellate court
always has jurisdiction to determine its appellate jurisdiction. (Rescue Army v. Municipal
Court (1946) 28 Cal.2d 460, 464 [cited in People v. Zarazua (2009) 179 Cal.App.4th
1054, 1062]; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302.) As this
principle is explained, “[A] tribunal has the duty, and therefore the . . . power
(jurisdiction), to decide in the first instance whether it has jurisdiction of the subject
matter . . . . This process may involve the determination of jurisdictional questions of
law.” (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 339, p. 963, italics added
(Witkin).) Thus, except in the presumably narrow class of cases in which a trial court
accurately determines that a petition on its face renders a defendant ineligible, we will
always have jurisdiction to consider whether the law and facts properly support the denial
of the petition.




                                               3
       Nor is it improper to issue an opinion after concluding we do not have jurisdiction
over the appeal. While “the [appellate] court should always dismiss an appeal from a
nonappealable order, on its own motion, without determining the merits, for lack of
appellate jurisdiction . . . it does not always do so. Sometimes the court first determines
the merits in an advisory opinion [as] a precedent, then dismisses the appeal.” (9 Witkin,
supra, Appeal, § 87, p. 147, italics added; id. at § 345, p. 396 [as matter of policy, it has
become an established practice to offer advisory opinion on important matter “where the
appeal itself was improperly taken and is dismissed, but the reviewing court, lacking
appellate jurisdiction to decide the merits of the particular proceeding, nevertheless
renders what is in effect an advisory opinion to serve as a precedent” (italics added)].)

       Both of the crowdsourced solutions have been severely criticized in the past. In
the context of section 1237.5, the Supreme Court has condemned as lax the practice of
entertaining appeals without certificates to further “judicial economy” in order to forestall
petitions for writs of habeas corpus, declaring that this does not further judicial economy
of the appellate system as a whole, which as a result is asked to review nonappealable
orders and judgments. (Mendez, supra, 19 Cal.4th at pp. 1097-1098.) And Witkin gives
a lengthy criticism of courts that “assume” jurisdiction without resolving the issue.
(9 Witkin, supra, Appeal, § 87, p. 148.) As for treating the appeal as a writ petition, this
runs afoul of the risk of creating the same dysfunction in the system as a whole, because
every litigant with a nonappealable order can make such a request. For this reason, a
court should undertake this fiction only under a compelling showing of exceptional
circumstances. (9 Witkin, supra, § 130, pp. 200-202 [to engage in the fiction “ ‘would
obliterate the bright line and encourage parties to [appeal knowingly] from nonappealable
orders’ ” (quoting Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1456,
italics added)]; accord, San Joaquin County Dept. of Child Support Services v. Winn
(2008) 163 Cal.App.4th 296, 300-301 [noting need for unusual circumstances, and a need



                                               4
to provide guidance on issue of general importance; “ ‘Routine granting of requests to
treat improper appeals as writs where there are no exigent reasons for doing so would
only encourage parties to burden appellate courts’ ”].)

       Our opinion having resolved adversely to defendant the statutory interpretation
issue that possession of a gun includes being armed with a gun, and the legal issue of the
proper scope of the record of conviction, defendant was ineligible for resentencing on the
facts present in his record of conviction, and the denial of his petition could not as a result
have affected his substantial rights. As in People v. Turrin, supra, 176 Cal.App.4th 1200,
our selection of disposition here should be dismissal of the appeal. (CERTIFIED FOR
PUBLICATION)


                                                          BUTZ                  , J.




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