Filed 9/23/15 P. v. Gonsalves CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067071

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD107521)

ANTHONY GONSALVES,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

         Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M.

Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
       In 1996 Anthony Gonsalves was convicted of possession of a firearm by a felon

(Pen. Code, former § 12021, subd. (a).)1 Because the court found true the allegations

that Gonsalves had been convicted of three prior offenses that were serious or violent

felonies within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, it

sentenced him to an indeterminate term of 25 years to life, plus additional time for other

offenses, for a total sentence of 32 years to life. In 2013, Gonsalves petitioned to recall

his sentence pursuant to the Three Strikes Reform Act of 2012 (§ 1170.126 et seq.,

hereafter TSRA or Act). The court denied his petition, and this appeal followed.

                                              I

                  FACTUAL AND PROCEDURAL BACKGROUND2

       A. The Current Offense and Sentence

       On October 24, 1994, the police arrested Gonsalves following his sale of a

substance in lieu of narcotics to an undercover police officer. On October 26, 1994,

while awaiting arraignment at San Diego Municipal Court, Gonsalves was seated in a

chair located near the deputy marshal's gun locker. A deputy observed Gonsalves reach



1      "Effective January 1, 2012, former section 12021(a), was repealed and reenacted
without substantive change as section 29800, subdivision (a)." (People v. White (2014)
223 Cal.App.4th 512, 518, fn. 2 (White).) For ease of reference, we hereafter refer to a
conviction for felon in possession of a firearm as a conviction under section 12021,
subdivision (a). All further statutory references are to the Penal Code unless otherwise
specified.

2      The court relies in part on this court's unpublished opinion in People v. Gonsalves
(March 13, 1998, D026965) for the facts of Gonsalves's current offense and portions of
the procedural history.
                                             2
into the gun locker, retrieve a pistol, bring it out of the locker, and place his finger on the

trigger.

       In 1996 Gonsalves was convicted of one count of being a felon in possession of a

firearm (§ 12021, subd. (a).) The court found true three allegations of prison priors

within the meaning of section 667.5, subdivision (b), and three serious/violent felony

prior convictions within the meaning of section 667, subdivisions (b) through (i). The

court sentenced Gonsalves to an indeterminate term of 25 years to life for the possession

count, a consecutive four-year term for the sale in lieu of narcotics offense, and three

consecutive one-year terms for the prison priors.

       B. The Recall Petition

       In 2013, Gonsalves filed a petition under the TSRA to recall his sentence. He

submitted a letter in connection with his petition that stated, in part: "Im [sic] really sorry

i [sic] pulled the gun out of the gun locker!" The trial court issued an order to show cause

why the petition should not be denied based on the nature of his commitment offense,

explaining that the statute excludes recall for felonies during the commitment of which

the defendant was armed with a firearm or deadly weapon and citing the events of

October 26, 1994. Following a hearing on the order to show cause, the trial court denied

the petition. Gonsalves timely appealed.

       C. Arguments on Appeal

       On appeal, Gonsalves contends (i) he was entitled to a hearing on resentencing

eligibility during which the People bear the burden of proof, (ii) section 1170.126 should


                                               3
be construed to require pleading and proof of being armed, and (iii) nothing in the record

of conviction established he was armed during commission of the possession offense, as

well as various ancillary claims. The People argue the TSRA does not require either a

hearing or that the prosecution plead and prove the defendant was armed, and the record

of his conviction reflects that Gonsalves was armed.3

                                             II

                                       ANALYSIS

       A. The TSRA Framework

       The TSRA "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." (People v. Yearwood (2013) 213

Cal.App.4th 161, 167.)

       The TSRA also added section 1170.126, the retroactive part of the Act, to permit

recall and resentencing for certain three strikes sentences imposed before the TSRA.

Section 1170.126 "provides a means whereby, . . . subject to certain disqualifying

exceptions or exclusions, a prisoner currently serving a sentence of 25 years to life under


3       In his reply brief, Gonsalves additionally contends de novo review applies and he
should have received a determination as to whether he would pose an unreasonable risk
of danger. We will not consider arguments raised for the first time on reply. (People v.
Zamudio (2008) 43 Cal.4th 327, 353 [" 'Normally, a contention may not be raised for the
first time in a reply brief.' "].) We note, however, that we apply de novo review with
respect to the TSRA's legal requirements, but review for substantial evidence the
sufficiency of the record of conviction to support the petition's denial. (People v.
Bradford (2014) 227 Cal.App.4th 1322, 1332 (Bradford); People v. Guilford (2014) 228
Cal.App.4th 651, 661 (Guilford).)
                                             4
the pre-Proposition 36 version of the Three Strikes law for a third felony conviction that

was not a serious or violent felony may be eligible for resentencing . . . ." (White, supra,

223 Cal.App.4th at p. 517.)

       The inmate's TSRA petition must show, among other things, that the current

sentence was not imposed for any offense set forth in section 667, subdivision

(e)(2)(C)(i) through (iii), or section 1170.12, subdivision (c)(2)(C)(i) through (iii).

(§ 1170.126, subd. (e).) Pursuant to this provision, an inmate is statutorily ineligible for

resentencing if he or she was "armed with a firearm" when the inmate committed the

current offense. (§ 667, subd. (e)(2)(C)(iii); § 1170.12, subd. (c)(2)(C)(iii).) Even if the

inmate otherwise demonstrates eligibility for resentencing, the court may, in its

discretion, deny the petition if it concludes resentencing "would pose an unreasonable

risk of danger to public safety." (§ 1170.126, subd. (f).)

       It is reversible error for a trial court to grant a TSRA petition and resentence an

inmate when the record of conviction demonstrates, as a matter of law, that the inmate is

statutorily ineligible for resentencing. (See, e.g., People v. Brimmer (2014) 230

Cal.App.4th 782, 797-801, 805-806 (Brimmer); accord, People v. Superior Court

(Martinez) (2014) 225 Cal.App.4th 979, 989.)

       B. Gonsalves's Claims

       1. The Hearing Claim

       Gonsalves contends that he was entitled to an eligibility hearing at which the

People bear the burden of proof.


                                               5
       Under Section 1170.126, the trial court makes the eligibility determination, based

on the record of conviction. (§ 1170.126, subd. (f); Bradford, supra, 227 Cal.App.4th at

p. 1338.) The eligibility determination provisions in section 1170.126 do not provide for

a hearing, and the People, in turn, bear no burden.

       Indeed, there is a dichotomy between the eligibility determination provisions

under section 1170.126, subdivision (f) (indicating the trial court "shall determine"

eligibility, with no reference to evidence), which do not imply use of a hearing, and the

resentencing provisions under section 1170.126, subdivision (g) (identifying factors for

consideration, and referencing evidence), subdivision (i) (permitting a waiver of

appearance, implying a hearing), and subdivision (m) (referencing "a resentencing

hearing"), which do contemplate a hearing. (People v. Oehmigen (2014) 232 Cal.App.4th

1, 6-7; see Bradford, 227 Cal.App.4th at p. 1337.)

       Additionally, the eligibility determination is a question of law. (People v.

Oehmigen, supra, 232 Cal.App.4th at p. 7.) The only facts at issue are those already

contained in the record of conviction, so there are no factual questions warranting

resolution in an evidentiary hearing. (Ibid.; Bradford, supra, 227 Cal.App.4th at

p. 1339.)

       Finally, Gonsalves's suggestion that due process warrants an eligibility hearing is

unpersuasive. The due process concerns implicated by sentence enhancement do not

arise in connection with TSRA resentencing. (Apprendi v. New Jersey (2000) 530 U.S.

466, 490 [holding, with respect to sentencing enhancements, that any fact increasing the


                                             6
penalty beyond the statutory maximum must be proved to a jury]; People v. Osuna

(2014) 225 Cal.App.4th 1020, 1039 ["Apprendi and its progeny do not apply to a

determination of eligibility for resentencing under the Act."] (Osuna).) The court finds

that Gonsalves was not entitled to an eligibility hearing.

         2. The Pleading and Proof Claim

         Gonsalves also contends that section 1170.126 should be read to require pleading

and proof of being armed. The court finds nothing in the statute or case law to support

this argument. As this court noted in White, "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.)4

         Here, too, there is a relevant dichotomy, this time between the TSRA's prospective

and retrospective provisions. "[T]he pleading and proof requirement plainly is a part of

only the prospective part of the Reform Act . . . ; it is not a part of section 1170.126, the

retrospective part of the Reform Act . . . ." (White, supra, 223 Cal.App.4th at p. 527; see

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292 [describing


4     People v. Berry (2015) 235 Cal.App.4th 1417, cited by Gonsalves, does not
suggest otherwise. Berry found that the trial court could not rely on dismissed claims in
making a TSRA eligibility determination. (Id. at pp. 1425-1426.)
                                               7
retroactive part as "providing similar, but not identical, relief"].) The Third Appellate

District has explained the differing treatment: "The differences in approach make sense.

Prospectively, the prosecution is seeking, in the case of nonserious or nonviolent third

strikes, to impose a life term, which would not be possible without the added factors. But

in a retrospective analysis of sentences, the increased punishment has already been

lawfully imposed. [¶] . . . [¶] . . . The requirement of pleading and proof for prospective

application of the Act, and the absence of such requirement for retrospective application,

indicates that pleading and proof is not a requirement for the latter." (Guilford, supra,

228 Cal.App.4th at p. 659 (citing Kaulick and White); accord People v. Elder (2014) 227

Cal.App.4th 1308, 1314-15, Brimmer, supra, 230 Cal.App.4th at pp. 801-802, Osuna,

supra, 225 Cal.App.4th at p. 1033.) The court finds this reasoning persuasive. For the

foregoing reasons, Gonsalves likewise cannot rely on other enhancement regimes and

related case law (e.g., Descamps v. United States (2013) __ U.S. ___ [133 S.Ct. 2276].)

       3. The Record of Conviction Claim

       Gonsalves indicates that a person is armed during the commission of a felony if

the person carries the firearm or has it available for use, as reflected in the record of

conviction, which is consistent with the case law. (White, supra, 223 Cal.App.4th at

p. 525 [finding inmate ineligible for resentencing where the record of conviction showed

the inmate "not only had a firearm 'in [his] possession or under [his] custody or control,' "

but that "he also was personally armed with the firearm on that date because he was

carrying—and, thus, had ' "ready access" ' [citation] to—that firearm"]; see Osuna, supra,


                                               8
225 Cal.App.4th at pp. 1030, 1040 [considering prior opinion affirming conviction, and

concluding the record demonstrated defendant was armed during commission of his

current offense].) However, Gonsalves contends nothing in the record of conviction

establishes that he was armed, and the trial court relied on unidentified portions of the

record in finding him ineligible for resentencing.

       The record of conviction here, which includes this court's prior unpublished

opinion regarding Gonsalves's conviction, supports the ruling that he was ineligible for

resentencing. (See, e.g., Brimmer, supra, 230 Cal.App.4th at p. 800 [finding "court's

unpublished opinion in defendant's prior underlying appeal is sufficient evidence of the

record of conviction"]; Guilford, supra, 228 Cal.App.4th at pp. 659-662 [court may use

prior opinion to show facts of underlying conviction establishes ineligibility under

TSRA].)5 The prior opinion shows Gonsalves retrieved the firearm from the locker,

establishing his physical possession of the gun during commission of the possession

offense. Gonsalves does not dispute the accuracy of the facts in the prior opinion.

(Guilford, supra, 228 Cal.App.4th at p. 660.)




5       The People identified the prior opinion as part of the record of conviction in their
brief, cited authority supporting such inclusion, and attached a copy thereto. On reply,
Gonsalves provided no substantive response to the People's contention that the opinion
properly was part of the record of conviction and identified no contrary authorities.
Given the parties had an opportunity to brief the inclusion of the prior opinion in the
record of conviction, the court takes judicial notice of the prior opinion without further
briefing by the parties. (Evid. Code, §§ 452, subd. (a), 459, subds. (a), (d).)

                                              9
       Moreover, Gonsalves's letter supporting his petition for recall indicated he pulled

the gun out of the gun locker. The probation officer's report likewise reflects such

retrieval. Gonsalves does not dispute the accuracy of either his letter or the report.6

       Thus, the record of conviction shows Gonsalves was armed during his possession

offense, because "he was carrying—and, thus, had ' "ready access" ' " to the gun. (White,

supra, 223 Cal.App.4th at p. 525.) Gonsalves's effort to distinguish White on the grounds

that defendant's attorney in White conceded the defendant was armed is unsuccessful; the

record of conviction here establishes that Gonsalves too was armed.

       As for the trial court's findings, the trial court found the record of conviction

reflected Gonsalves was armed. Although the court does not identify the portion of the

record of conviction on which it relied, "we review the correctness of the trial court's

ruling, not the reasons underlying it" (People v. Koontz (2002) 27 Cal.4th 1041, 1075-

1076, fn. 4; accord, Punsly v. Ho (2003) 105 Cal.App.4th 102, 113). We are satisfied that

the trial court, reviewing the record of conviction, had substantial evidence to conclude

Gonsalves was armed during commission of the firearm possession.

       4. Other Claims

       Gonsalves suggests that section 1170.126 is ambiguous, both as to issues

addressed above and other matters (including whether arming must be tethered to a

felony other than possession, whether voters intended disqualification for offenses not


6       In his opening brief, Gonsalves notes that the source of the facts he states therein
is the probation report and that he does not concede their accuracy. The court does not
view Gonsalves's caveat as disputing such facts.
                                              10
enumerated in sections 667 or 1170.12, and whether the unreasonable risk provision

supports narrow construction of the eligibility exclusions), and suggests the rule of lenity

should apply. The court does not find these matters ambiguous, but even if they were,

there is no basis for applying the rule of lenity. (People v. Nuckles (2013) 56 Cal.4th

601, 611 [rule applies only if " ' " 'the court can do no more than guess what the

legislative body intended; there must be an egregious ambiguity and uncertainty to justify

invoking the rule.' " [Citation.]' "].) The court briefly addresses the additional matters

Gonsalves raises.

       First, section 1170.126 does not require that arming be related to an offense

separate from possession. (See White, supra, 223 Cal.App.4th at p. 526; accord Brimmer,

supra, 230 Cal.App.4th at p. 797, Osuna, supra, 225 Cal.App.4th at p. 1032.)

       Second, although the court agrees that ballot propositions should be interpreted

consistent with voter intent, disqualifying individuals armed during the commission of

felonies, including possession offenses, is consistent with such intent. (See White, supra,

223 Cal.App.4th at p. 526 ["White's current offense of being a felon in possession of a

firearm—when viewed in light of the fact that he was armed with the firearm during the

commission of that offense—cannot be deemed a petty or minor crime for purposes of

the Reform Act."].)

       Finally, nothing in section 1170.126 suggests that its eligibility exclusion

provisions should be narrowly construed. Regardless, Gonsalves fails to explain how

narrow construction could avoid exclusion in his case.


                                             11
      We conclude the trial court correctly ruled Gonsalves was statutorily ineligible for

a recall of his sentence under the TSRA.

                                    DISPOSITION

      The order is affirmed.




                                                                         McDONALD, J.

WE CONCUR:


McCONNELL, P. J.


McINTYRE, J.




                                           12
