Filed 10/27/15 P. v. Gutierrez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067194

         Plaintiff and Respondent,

         v.

ARTURO GUTIERREZ,                                                   (Super. Ct. No. SF94332)

         Defendant and Appellant.


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

Danielsen, Judge. Affirmed.

         Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Marilyn L. George and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.
          Arturo Gutierrez appeals from the denial of his petition for recall of sentence

under the Three Strikes Reform Act (the Act). (Pen. Code, § 1170.126.)1 He contends

the trial court erred in determining that he was armed with a firearm during his third

strike prior and was therefore ineligible for resentencing under the Act. We disagree and

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

          On April 1, 1995, two police officers encountered Gutierrez resting in an eight

foot by ten foot makeshift encampment in a canyon. Upon request by the officers,

Gutierrez stepped out and stood 10 to 15 feet away while one officer searched the

encampment. One of the officers found a nine-millimeter handgun sitting on top of a

knapsack that was approximately 12 to 18 inches from where Gutierrez had been

resting.2 The gun had one bullet in the chamber and a loaded magazine next to it.

          Gutierrez was arrested, charged and ultimately convicted of possession of a

firearm by a felon.3 Because Gutierrez had nine strike prior convictions, the court




1         All further statutory references are to the Penal Code.

2       In an opinion affirming Gutierrez's conviction, this court described the gun as
within reach and stated that Gutierrez acknowledged handling the gun on the day of his
arrest, prior to the officers' arrival at the encampment. (People v. Gutierrez (Jun. 8, 2000,
D034199) [nonpub. opn.].)

3      This conviction resulted from a retrial after this court reversed and remanded
Gutierrez's original conviction for instructional error.
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sentenced him under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12) to a prison

term of 27 years to life. This court affirmed the conviction on direct appeal.

       In 2013, after the passage of the Act, Gutierrez filed a petition for recall of his

sentence. The trial court denied the petition, finding that Gutierrez was armed with a

firearm during the commission of his third strike offense and therefore, statutorily

ineligible for resentencing.

                                       DISCUSSION

       Gutierrez challenges the court's determination of ineligibility on two grounds. He

first contends he is eligible for relief because the language of the Act requires that he be

armed during the commission of a separate, tethering criminal offense to fall within its

armed-with-a-firearm exclusion. He further contends there is no substantial evidence to

support a finding that he was armed for purposes of this exclusion of the Act. We

address these issues in turn below.

               I. Application of the Act's Armed-with-a-Firearm Exclusion

       "Under the original version 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." (People v. Yearwood (2013) 213 Cal.App.4th 161, 167.) However, following

passage of the Act in 2012, the amended law now provides that an indeterminate life

sentence may only be imposed when a third strike is a serious or violent felony. (Teal v.

Superior Court (2014) 60 Cal.4th 595, 597.) The Act also established a process by which



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an inmate serving an indeterminate life sentence for a third strike conviction can petition

for recall of sentence and obtain resentencing relief. (§ 1170.126.)

       A defendant who files a petition for recall must satisfy certain criteria to be

eligible for resentencing. (People v. Yearwood, supra, 213 Cal.App.4th at p. 170.) As

relevant here, such a defendant must show in part that his indeterminate life sentence was

not imposed for an offense listed in section 667, subdivision (e)(2)(C), or section

1170.12, subdivision (c)(2)(C). (Yearwood, supra, at p. 170.) Pursuant to this criteria an

inmate is ineligible for resentencing if "[d]uring the commission of the current [third

strike] offense, the defendant . . . was armed with a firearm." (§§ 667, subd.

(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)

       Gutierrez contends that, as a matter of law, he was eligible for resentencing

because the armed-with-a-firearm exclusion must be tethered to a crime other than

possession of a firearm. He analogizes the statutory language of the armed-with-a-

firearm exclusion to that of arming enhancement provisions and argues that a third strike

offender cannot be denied resentencing relief based on this exclusion absent a separate

underlying offense.

       Reviewing this question of statutory interpretation de novo (People v. Bradford

(2014) 227 Cal.App.4th 1322, 1332; People v. Superior Court (2014) 225 Cal.App.4th

979, 990 (Martinez)), we reject Gutierrez's contention, as the law is settled that no

separate tethering offense is required under sections 667, subdivision (e)(2)(C), and

1170.12, subdivision (c)(2)(C). (People v. Osuna (2014) 225 Cal.App.4th 1020, 1032

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["the literal language of the Act disqualifies an inmate from resentencing if he or she was

armed with a firearm during the unlawful possession of that firearm"]; People v. Brimmer

(2014) 230 Cal.App.4th 782, 797-799 [holding that an inmate fell under the armed-with-

a-firearm exclusion and was ineligible for resentencing relief under the Act when he was

armed with a shotgun during the commission of the underlying offense of possession of a

firearm]; People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314.) In accordance with

these authorities, Gutierrez's statutory interpretation fails.

                                   II. Sufficiency of the Evidence

       Gutierrez next contends his record of conviction does not support a conclusion that

he was armed during his third strike offense. Whether evidence supports the conclusion

that a defendant was armed is a question of fact that we review under the substantial

evidence standard. (People v. Bradford, supra, 227 Cal.App.4th at p. 1331; People v.

Osuna, supra, 225 Cal.App.4th at p. 1040.)

       An individual can be in possession of a firearm without being armed with a

firearm and thus, a conviction for possession of a firearm by a felon, standing alone, is

insufficient to disqualify an individual for resentencing relief under the Act. (People v.

Blakely (2014) 225 Cal.App.4th 1042, 1048.) However, if the record establishes that a

defendant convicted of possession of a firearm by a felon was armed with the firearm

during the commission of that offense, the armed-with-a-firearm exclusion of the Act

applies and the defendant is not entitled to resentencing relief thereunder. (People v.

White (2014) 223 Cal.App.4th 512, 519.)

                                               5
       Being "armed" requires the defendant to have had a weapon physically available

for offensive or defensive use. (People v. Bland (1995) 10 Cal.4th 991, 997; People v.

Blakely, supra, 225 Cal.App.4th at pp. 1051-1052.) Actual physical possession of a

firearm is not required. (See Martinez, supra, 225 Cal.App.4th at pp. 985, 989-993, 995

[holding that an individual was armed within the meaning of the Act when a gun was

found in the same room or a separate room of the house where that individual was

arrested].)

       Gutierrez points to factual differences in the record and argues that he was outside

the encampment when he was actually detained by the officers and therefore the firearm

was not readily accessible for his offensive or defensive use. We disagree. Substantial

evidence supported the trial court's determination that Gutierrez was armed during

commission of the underlying offense. One of the arresting officers found a loaded,

ready-to-fire handgun approximately 12 to18 inches away from Gutierrez's initial resting

place and this court's opinion affirming the conviction noted that the gun was within his

reach and that he had acknowledged handling the gun.4 As such, the firearm was readily

accessible and immediately available for Gutierrez's offensive or defensive use. The trial




4      This court's earlier opinion is part of the record of conviction and was properly
relied on by the trial court. (See People v. Brimmer, supra, 230 Cal.App.4th at pp. 800-
801 ["[W]e find a trial court may rely on the record of conviction, including this court's
prior opinion in defendant's appeal from his original judgment and trial transcripts, as
evidence to determine eligibility under the Act"].)

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court properly determined Gutierrez was armed with the handgun and ineligible for

resentencing relief under the Act.


                                     DISPOSITION

       The order is affirmed.



                                                                            PRAGER, J.*

WE CONCUR:



             NARES, Acting P. J.



                  McDONALD, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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