Filed 4/24/14 P. v. Uribe CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067245
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF96555873)
                   v.

ALFONSO URIBE,                                                                            OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         John Hargreaves, under appointment by the Court of Appeal, for Defendant and
Appellant.




*        Before Levy, Acting P.J., Detjen, J. and LaPorte, J.†
†     Judge of the Superior Court of Kings County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
       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.
                                          -ooOoo-
                                    INTRODUCTION
       “On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added
[Penal Code] section 1170.126 (hereafter the Act [or Proposition 36]).[1] The Act
changes the requirements for sentencing a third strike offender to an indeterminate term
of 25 years to life imprisonment. Under the original version of the three strikes law a
recidivist with two or more prior strikes who is convicted of any new felony is subject to
an indeterminate life sentence. The Act diluted the three strikes law by reserving the life
sentence for cases where the current crime is a serious or violent felony or the
prosecution has pled and proved an enumerated disqualifying factor. In all other cases,
the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) 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.)
       Shortly after the Act went into effect, Alfonso Uribe (defendant), an inmate
serving a term of two years plus 25 years to life in prison following conviction of a
felony that was not violent (as defined by § 667.5, subd. (c)) or serious (as defined by
§ 1192.7, subd. (c)), filed a petition to recall sentence, seeking resentencing under the
1      Further statutory references are to the Penal Code unless otherwise stated.



                                             2.
Act. The trial court determined defendant did not qualify (was ineligible) for
resentencing and denied the petition. Defendant now appeals.
       We hold: (1) A trial court’s order finding a defendant not eligible for resentencing
is appealable; (2) A person convicted of being a violent offender in possession of a
firearm is not automatically disqualified from resentencing by virtue of that conviction;
rather, the record of conviction must be examined to ascertain the existence of a
disqualifying factor; and (3) Disqualifying factors need not be pled and proved to a jury
beyond a reasonable doubt. The trial court here erroneously found automatic
disqualification, but the record on appeal establishes defendant was armed during the
commission of his current offense. We affirm.
                      FACTS AND PROCEDURAL HISTORY2
       On August 17, 1995, officers served a search warrant at an apartment in Fresno.
When officers entered, they found Irma Garcia in the bathroom and defendant on a ladder
in Garcia’s bedroom, attempting to climb out a window. Officers took defendant into
custody and removed him from the scene.
       Garcia was detained in the kitchen. Asked by a parole officer whether there were
any guns in the apartment, Garcia stated either that when officers entered, defendant had
been sitting on the couch, holding a small handgun, or that defendant had placed
something under the couch where he was sitting. A handgun was found under a couch
cushion where Garcia said defendant had been seated.
       In Garcia’s bedroom, officers found men’s clothing and paperwork belonging to
defendant. Garcia said defendant had been living with her for two weeks. Garcia also
said the weapons found in the apartment belonged to defendant.


2      The facts of defendant’s current offense and portions of the procedural history are
taken from this court’s nonpublished opinion in People v. Uribe (Feb. 11, 1999,
F028340).



                                            3.
       One to two hours after officers arrived at the apartment, the telephone rang.
Garcia was allowed to answer it while an officer listened on another telephone. The
officer heard defendant ask Garcia whether anyone was listening. Defendant told Garcia
that if questioned, she should not say anything. He asked her twice if she knew what
time it was — a phrase that is an implied threat among parolees — and told her to
remember what happened to a female informant.
       At trial, Garcia testified all the weapons found in the apartment belonged to her.
She denied defendant had been staying with her. She claimed she told the officers the
gun found in the apartment belonged to her, but changed her story and said the gun was
defendant’s after, she claimed, she had been threatened with being arrested for child
endangerment.
       On April 9, 1997, a jury convicted defendant of being a violent offender in
possession of a firearm. (Former § 12021.1, subd. (a), see now § 29900, subd. (a)(1).)3
Defendant then admitted being previously convicted of a felony, and the court found true
two prior prison term enhancements (§ 667.5, subd. (b)) and allegations defendant had
two prior convictions within the meaning of the three strikes law (§§ 667, subds. (e)-(i),
1170.12). On May 9, 1997, the court sentenced defendant to two years plus 25 years to
life in prison.
3       The abstract of judgment shows defendant was convicted of being a felon in
possession of a firearm, in violation of former section 12021, subdivision (a)(1) (now
§ 29800, subd. (a)(1)). It is apparent from defendant’s petition for recall of sentence, the
first amended information, and the appellate opinion, that this statutory designation is in
error.
       Former section 12021.1, subdivision (a) was repealed as of January 1, 2012, but its
provisions were reenacted without substantive change as section 29900,
subdivision (a)(1). (People v. Sanders (2012) 55 Cal.4th 731, 734, fn. 2.) Because
defendant was convicted under the repealed statute, which was only renumbered without
substantive change, we refer to former section 12021.1, subdivision (a), throughout this
opinion for clarity and convenience. For brevity, we will not use the word “former” and
will sometimes omit the subdivision.


                                             4.
       On December 11, 2012, defendant filed a petition for recall of sentence pursuant
to section 1170.126. The trial court made a preliminary finding defendant was eligible
for resentencing, and ordered briefing on various issues. The People responded by
opposing the petition on the ground defendant was ineligible for resentencing because the
record of conviction showed he was armed with a firearm during commission of his
current offense.
       On May 10, 2013, the court ruled defendant was statutorily ineligible for
resentencing because of his offense of conviction. The court found that section 1170.126
was poorly drafted. In order to interpret inconsistent and ambiguous language therein,
the court considered the electorate’s intent and concluded that intent was to exclude from
consideration any individual petitioning for resentencing for any weapon-related felony.
                                        DISCUSSION
I.     The trial court’s ruling is appealable.
       Both parties say the trial court’s denial of defendant’s petition is appealable. We
agree.4 The right of appeal is statutory and “‘a judgment or order is not appealable unless
expressly made so by statute.’” (People v. Mazurette (2001) 24 Cal.4th 789, 792.)
Although section 1170.126 does not specifically authorize an appeal from the denial of a
petition or motion for resentencing, section 1237 provides that a defendant may appeal
“[f]rom a final judgment of conviction” (id., subd. (a)) or “[f]rom any order made after
judgment, affecting the substantial rights of the party” (id., subd. (b)). First, the trial

4      The appealability issue is currently pending before the state Supreme Court. (E.g.,
People v. Leggett (2013) 219 Cal.App.4th 846, review granted Dec. 18, 2013, S214264
[concluding denial is not appealable if petition was erroneously filed by individual whose
sentence is based on conviction for serious or violent felony, but is appealable in all other
instances]; Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31,
2013, S211708 [concluding denial is nonappealable because Act confers no substantial
rights on eligibility issue]; People v. Hurtado (2013) 216 Cal.App.4th 941, review
granted July 31, 2013, S212017 [concluding denial is appealable because Act confers
substantial right].)



                                               5.
court’s denial of defendant’s petition was an order made after judgment since, in a
criminal case, judgment is synonymous with the imposition of sentence. (Fadelli
Concrete Pumping, Inc. v. Appellate Department (1995) 34 Cal.App.4th 1194, 1200.)
Sentence was imposed for defendant’s current offense in 1997. Second, a finding of
eligibility is a prerequisite to the trial court having the power to exercise resentencing
discretion. If the trial court determines the inmate is ineligible, the inmate has no further
opportunity to be resentenced as a second strike offender. The eligibility finding,
therefore, affects the inmate’s substantial rights. (See People v. Totari (2002) 28 Cal.4th
876, 880-887 [although § 1016.5 (requiring a defendant to be advised of the potential
adverse immigration consequences resulting from his or her conviction before entering a
plea of guilty or nolo contendere) does not expressly authorize an appeal from a trial
court’s denial of motion to vacate a judgment for failure to so advise, such an order is
appealable].)
II.    Defendant was not automatically disqualified from resentencing by his
       current conviction for being a felon in possession of a firearm; rather, the
       record of conviction must be examined to determine whether defendant was
       “armed with a firearm” during commission of that offense.
       Insofar as is pertinent to this appeal, in order for an inmate to be eligible for
resentencing under the Act, his or her current sentence cannot have been “imposed for
any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126,
subd. (e)(2).) Thus, an inmate is disqualified from resentencing if, inter alia, “[d]uring
the commission of the current offense, 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), 1170.12, subd. (c)(2)(C)(iii).)
       “[A]rmed with a firearm” has been statutorily defined and judicially construed to
mean having a firearm available for use, either offensively or defensively. (E.g.,


                                              6.
§ 1203.06, subd. (b)(3); Health & Saf. Code, § 11370.1, subd. (a); People v. Bland (1995)
10 Cal.4th 991, 997 (Bland) [construing § 12022].) “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.]” (People v.
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.]” (People v. Weidert, supra, 39 Cal.3d at pp. 845-846.) 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.
       Defendant’s current conviction was for violating section 12021.1, subdivision (a),
which, at all times pertinent to this appeal, has made it a felony for a person previously
convicted of a “violent offense,” as enumerated in former section 12021.1,
subdivision (b) (see now § 29905) to own or have in his or her possession or under his or
her custody or control, any firearm. The elements of this offense are conviction of an
enumerated crime and ownership or knowing possession, custody, or control of a firearm.
(People v. Sanders, supra, 55 Cal.4th at p. 738, fn. 7; People v. Snyder (1982) 32 Cal.3d
590, 592; People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) “A defendant has actual
possession when the weapon is in his immediate possession or control. He has
constructive possession when the weapon, while not in his actual possession, is
nonetheless under his dominion and control, either directly or through others.
[Citations.]” (People v. Peña (1999) 74 Cal.App.4th 1078, 1083-1084.) “Implicitly, the



                                              7.
crime is committed the instant the [violent offender] in any way has a firearm within his
control.” (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410, italics omitted.)
       A firearm can be under a person’s dominion and control without it being available
for use. For example, suppose a parolee’s residence (in which only he lives) is searched
and a firearm is found next to his bed. The parolee is in possession of the firearm,
because it is under his dominion and control. If he is not home at the time, however, he is
not armed with the firearm, because it is not readily available to him for offensive or
defensive use. Accordingly, possessing a firearm does not necessarily constitute being
armed with a firearm.
       The trial court correctly noted that subdivision (e)(2) of section 1170.126 is not a
model of clarity, at least insofar as the disqualifying factors contained in sections 667,
subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) are concerned. Under
the literal language of section 1170.126, subdivision (e)(2), an inmate is disqualified from
resentencing if his or her current sentence was imposed for a specified offense. Yet,
again as the trial court observed, sections 667, subdivision (e)(2)(C)(iii) and 1170.12,
subdivision (c)(2)(C)(iii) do not contain actual offenses. Rather, the language of those
provisions is more akin to what is usually found in enhancements. In light of this
uncertainty and ambiguity, the court properly turned to the electorate’s intent to resolve
the eligibility question. We do likewise.
       “In interpreting a voter initiative like [the Act], we apply the same principles that
govern statutory construction. [Citation.]” (People v. Rizo (2000) 22 Cal.4th 681, 685.)
“‘The fundamental purpose of statutory construction is to ascertain the intent of the
lawmakers so as to effectuate the purpose of the law. [Citations.]’” (Horwich v. Superior
Court (1999) 21 Cal.4th 272, 276.) The issue, being one of the interpretation of a statute
and its applicability to a given situation, is a question of law we review independently.
(Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; Southern California Edison Co. v.



                                              8.
State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8; see People v. Cromer (2001)
24 Cal.4th 889, 894.)
       “In determining intent, we look first to the words themselves. [Citations.] When
the language is clear and unambiguous, there is no need for construction. [Citations.]
When the language is susceptible of more than one reasonable interpretation, however,
we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the
evils to be remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is a part.
[Citations.]” (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.) We also “‘refer
to other indicia of the voters’ intent, particularly the analyses and arguments contained in
the official ballot pamphlet.’ [Citation.]” (People v. Rizo, supra, 22 Cal.4th at p. 685.)
“Using these extrinsic aids, we ‘select the construction that comports most closely with
the apparent intent of the [electorate], with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 212.) “‘“The
meaning of a statute may not be determined from a single word or sentence; the words
must be construed in context, and provisions relating to the same subject matter must be
harmonized to the extent possible. [Citation.]”’” (People v. Mohammed (2008) 162
Cal.App.4th 920, 928.) “‘[W]e do not construe statutes in isolation, but rather read every
statute “with reference to the entire scheme of law of which it is part so that the whole
may be harmonized and retain effectiveness.” [Citation.]’ [Citation.]” (Horwich v.
Superior Court, supra, 21 Cal.4th at p. 276.)
       Finally, we take into account the rule of lenity. “‘That rule generally requires that
“ambiguity in a criminal statute should be resolved in favor of lenity, giving the
defendant the benefit of every reasonable doubt on questions of interpretation. But …
‘that rule applies “only if two reasonable interpretations of the statute stand in relative
equipoise.” [Citation.]’ [Citations.]” [Citations.]’ [Citation.] ‘The rule of lenity does

                                              9.
not apply every time there are two or more reasonable interpretations of a penal statute.
[Citation.] Rather, the 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.]’ [Citation.]” (People v. Nuckles (2013) 56 Cal.4th 601,
611.) “Further, ambiguities are not interpreted in the defendant’s favor if such an
interpretation would provide an absurd result, or a result inconsistent with apparent
legislative intent. [Citation.]” (People v. Cruz (1996) 13 Cal.4th 764, 783.)
       An examination of the statutory scheme as a whole supports the conclusion the
phrase “[d]uring the commission of the current offense, the defendant … was armed with
a firearm,” as used in sections 667, subdivision (e)(2)(C)(iii) and 1170.12,
subdivision (c)(2)(C)(iii), and as disqualifies an inmate from resentencing pursuant to
section 1170.126, subdivision (e)(2), extends to situations in which the defendant was
convicted of violating section 12021.1 if the defendant had the firearm he or she was
convicted of possessing available for use, either offensively or defensively. A conviction
for violating section 12021.1 is insufficient, standing alone, to disqualify a defendant.
Rather, the record of conviction must establish arming or one of the other disqualifying
factors.
       The purpose of the three strikes law has been variously stated as being “‘to ensure
longer prison sentences and greater punishment for those who commit a felony and have
been previously convicted of serious and/or violent felony offenses’” (In re Young (2004)
32 Cal.4th 900, 909) and “to promote the state’s compelling interest in the protection of
public safety and in punishing recidivism” (People v. Gipson (2004) 117 Cal.App.4th
1065, 1070). Although the Act “diluted” the three strikes law somewhat (People v.
Yearwood, supra, 213 Cal.App.4th at p. 167), “[e]nhancing public safety was a key
purpose of the Act” (id. at p. 175).
       In enacting section 1170.126 as part of Proposition 36, the issue before the voters
was not whether a defendant could or should be punished more harshly for a particular

                                             10.
aspect of his or her offense, but whether, having already been found to warrant an
indeterminate life sentence as a third strike offender, he or she should now be eligible for
a lesser term. By including as a disqualifying factor an inmate’s mere intent, during
commission of the current offense, to cause great bodily injury to another person, the
electorate signaled its own intent that disqualifying conduct not be limited to what is
specifically punishable as an offense or enhancement. Apparently recognizing the maxim
expressio unius est exclusio alterius — the expression of some things in a statute
necessarily means the exclusion of other things not expressed (Gikas v. Zolin (1993) 6
Cal.4th 841, 852) — voters rendered ineligible for resentencing not only narrowly drawn
categories of third strike offenders who committed particular, specified offenses or types
of offenses, but also broadly inclusive categories of offenders who, during commission of
their crimes — and regardless of those crimes’ basic statutory elements — used a
firearm, were armed with a firearm or deadly weapon, or intended to cause great bodily
injury to another person.
       That our construction of the pertinent statutes comports with voters’ intent is
supported by the ballot materials related to Proposition 36. We recognize the
“OFFICIAL TITLE AND SUMMARY” stated in part that the initiative “[c]ontinues to
impose life sentence penalty if third strike conviction was for certain nonserious, non-
violent sex or drug offenses or involved firearm possession.” (Voter Information Guide,
Gen. Elec. (Nov. 6, 2012) official title and summary, p. 48, italics added.) Other portions
of the materials retreated from such a sweeping pronouncement, however. In
summarizing then-existing law, the legislative analysis of Proposition 36 listed, as
examples of violent felonies, murder, robbery, and rape; as felonies that were serious but
not violent, assault with intent to commit robbery; and as felonies not classified as violent
or serious, grand theft (not involving a firearm) and possession of a controlled substance.
(Voter Information Guide, Gen. Elec., supra, analysis of Prop. 36 by Legis. Analyst,
p. 48.) In summarizing how the initiative measure would shorten sentences for some

                                            11.
third strikers, the Legislative Analyst explained there would be some exceptions to the
shorter sentence: “Specifically, the measure requires that if the offender has committed
certain new or prior offenses, including some drug-, sex-, and gun-related felonies, he or
she would still be subject to a life sentence under the three strikes law.” (Id. at p. 49,
italics added.) The legislative analysis further described how certain current third strikers
would be resentenced, but explained that Proposition 36 “limits eligibility for
resentencing to third strikers whose current offense is nonserious, non-violent, and who
have not committed specified current and prior offenses, such as certain drug-, sex-, and
gun-related felonies.” (Voter Information Guide, Gen. Elec., supra, at p. 50, italics
added.)
       In their “ARGUMENT IN FAVOR OF PROPOSITION 36,” the measure’s
proponents spoke in terms of making the punishment fit the crime, saving California
money, and making room in prison for dangerous felons. (Voter Information Guide,
Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) In their “REBUTTAL TO
ARGUMENT AGAINST PROPOSITION 36,” the proponents stated, in part: “Prop. 36
requires that murderers, rapists, child molesters, and other dangerous criminals serve
their full sentences. [¶] … [¶] Today, dangerous criminals are being released early from
prison because jails are overcrowded with nonviolent offenders who pose no risk to the
public. Prop. 36 prevents dangerous criminals from being released early. People
convicted of shoplifting a pair of socks, stealing bread or baby formula don’t deserve life
sentences.” (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against
Prop. 36, p. 53, original italics omitted, italics added.)
       Section 1 of the proposed law found and declared:

              “The People enact the Three Strikes Reform Act of 2012 to restore
       the original intent of California’s Three Strikes law — imposing life
       sentences for dangerous criminals like rapists, murderers, and child
       molesters.



                                              12.
              “This act will:

               “(1) Require that murderers, rapists, and child molesters serve their
       full sentences — they will receive life sentences, even if they are convicted
       of a new minor third strike crime.

             “(2) Restore the Three Strikes law to the public’s original
       understanding by requiring life sentences only when a defendant’s current
       conviction is for a violent or serious crime.

              “(3) Maintain that repeat offenders convicted of non-violent, non-
       serious crimes like shoplifting and simple drug possession will receive
       twice the normal sentence instead of a life sentence.

              “(4) Save hundreds of millions of taxpayer dollars every year for at
       least 10 years. The state will no longer pay for housing or long-term health
       care for elderly, low-risk, non-violent inmates serving life sentences for
       minor crimes.

              “(5) Prevent the early release of dangerous criminals who are
       currently being released early because jails and prisons are overcrowded
       with low-risk, non-violent inmates serving life sentences for petty crimes.”
       (Voter Information Guide, Gen. Elec., supra, text of proposed law, § 1,
       p. 105, italics added.)
       The foregoing materials expressly distinguished between dangerous criminals who
were deserving of life sentences, and petty criminals (such as shoplifters and those
convicted of simple drug possession) who posed little or no risk to the public and did not
deserve life sentences. Although arguably the materials implied virtually any level of
firearm involvement would subject a person to a life sentence, we cannot simply look to
these materials without taking into account the actual language of the enactment. To
conclude, based on the materials, that inmates convicted of offenses involving mere
possession of a firearm are ineligible for resentencing, would read out of existence
voters’ specification, in the statutory language itself, that disqualification under
section 1170.126, subdivision (e)(2) is limited to situations in which, “[d]uring the
commission of the current offense, the defendant used a firearm, was armed with a
firearm or deadly weapon, or intended to cause great bodily injury to another person.”


                                             13.
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Although the literal language
of a statute does not prevail if it conflicts with the lawmakers’ intent (Lungren v.
Deukmejian (1988) 45 Cal.3d 727, 735; People v. Belton (1979) 23 Cal.3d 516, 526), it is
nevertheless the most reliable indicator of that intent (City of Santa Monica v. Gonzalez
(2008) 43 Cal.4th 905, 919). It cannot be ignored. (See, e.g., Curle v. Superior Court
(2001) 24 Cal.4th 1057, 1063; Dyna-Med, Inc. v. Fair Employment & Housing Com.
(1987) 43 Cal.3d 1379, 1386-1387.)
       It is clear the electorate’s intent was not to throw open the prison doors to all third
strike offenders whose current convictions were not for serious or violent felonies, but
only to those who were perceived as posing little or no risk to the public. A felon who
has been convicted of two or more serious and/or violent felonies in the past, and most
recently had a firearm readily available for use, simply does not pose little or no risk to
the public. “[T]he threat presented by a firearm increases in direct proportion to its
accessibility. Obviously, a firearm that is available for use as a weapon creates the very
real danger it will be used.” (People v. Mendival (1992) 2 Cal.App.4th 562, 573.) The
same cannot necessarily be said about a firearm that is merely under the dominion and
control of a person previously convicted of a felony. For instance, a firearm passed down
through family members and currently kept in a safe deposit box by one previously
convicted of a violent offense would be under his or her dominion and control, but would
present little or no real danger. Thus, the trial court erred by concluding defendant’s
offense, for possessing a firearm as a violent offender, placed him within the meaning of
“armed” for purposes of section 1170.126.
       The People implicitly concede the trial court erred by suggesting all offenses
involving firearm possession disqualify an inmate from resentencing under the Act, but
argue reversal is not required because the facts underlying defendant’s conviction
demonstrate he was in fact armed with a firearm during commission of his current



                                             14.
offense. In support of this claim, the People rely on this court’s opinion in defendant’s
direct appeal.
       We agree that we (and trial courts) may examine the record of conviction to
determine the existence of disqualifying factors. We see no practical difference between
examining the entire record of conviction to ascertain whether, for example, an out-of-
state conviction qualifies as a prior serious felony conviction under California law, which
is permitted (People v. Woodell (1998) 17 Cal.4th 448, 450-451), and doing so to
determine whether an inmate is disqualified from resentencing under the Act.
       “[T]he record of the conviction is not limited to the trial court record but extends
to the appellate court record, including the appellate opinion.” (People v. Woodell, supra,
17 Cal.4th at p. 451, italics omitted.) The trial testimony recited in our opinion on
defendant’s direct appeal revealed that just before officers entered the apartment in which
defendant was located, defendant was sitting on the couch, holding a handgun. After
defendant was removed from the scene, a handgun was found under a couch cushion
where defendant had been sitting. Accordingly, the record established defendant had a
firearm available for offensive or defensive use.5
       Defendant does not dispute our factual reading of the record, but argues “arming”
requires an underlying felony other than mere possession, and the firearm possession
must be “tethered” or have a “facilitative nexus” to that offense. The problem with
defendant’s argument is that we are not concerned here with imposition of an arming
enhancement — an additional term of imprisonment added to the base term, which

5      We caution that here, the facts in the appellate opinion were derived from the
evidence presented at trial. Although part of the record of conviction, the appellate
opinion will not necessarily be relevant or admissible in its entirety. (People v. Woodell,
supra, 17 Cal.4th at pp. 457-460.) This may be especially true where the facts recited
therein have their source in the probation officer’s report rather than the trial evidence.
(See People v. Trujillo (2006) 40 Cal.4th 165, 180-181; People v. Reed (1996) 13 Cal.4th
217, 220, 230-231.)



                                            15.
cannot be imposed until and unless an accused is convicted of a related substantive
offense. (People v. Dennis (1998) 17 Cal.4th 468, 500; see People v. Izaguirre (2007) 42
Cal.4th 126, 134.)
      In Bland, supra, 10 Cal.4th 991, the California Supreme Court construed the
enhancement contained in section 12022, which imposes an additional term of
imprisonment for anyone “armed with a firearm in the commission of” a felony. The
court concluded that “a defendant convicted of a possessory drug offense [is] subject to
this ‘arming’ enhancement when the defendant possesses both drugs and a gun, and keeps
them together, but is not present when the police seize them from the defendant’s
house[.]” (Bland, supra, at p. 995.) The court elaborated:

              “[C]ontemporaneous possession of illegal drugs and a firearm will
      satisfy the statutory requirement of being ‘armed with a firearm in the
      commission’ of felony drug possession only if the evidence shows a nexus
      or link between the firearm and the drugs. The federal courts, in
      interpreting the federal counterpart to California’s weapons enhancement
      law [citation], have described this link as a ‘facilitative nexus’ between the
      drugs and the gun. [Citation.] Under federal law, which imposes specified
      prison terms for using or carrying a firearm ‘“during and in relation to”’ a
      crime of drug trafficking, ‘the firearm must have some purpose or effect
      with respect to the drug trafficking crime; its presence or involvement
      cannot be the result of accident or coincidence.’ [Citation.] So too in
      California.

              “… [F]or a defendant to be subject to additional punishment for
      being armed with a firearm, California law requires the ‘arming’ to be ‘in
      the commission or attempted commission’ of the underlying felony.
      (§ 12022, subd. (a)(1).) With respect to felony drug possession, a
      defendant is armed ‘in the commission’ of that crime so long as the
      defendant had the firearm available for use in furtherance of the drug
      offense at some point during the defendant’s possession of the drugs. Thus,
      by 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. Evidence
      that a firearm is kept in close proximity to illegal drugs satisfies this
      ‘facilitative nexus’ requirement: a firearm’s presence near a drug cache


                                           16.
       gives rise to the inference that the person in possession of the drugs kept the
       weapon close at hand for ‘ready access’ to aid in the drug offense.” (Bland,
       supra, 10 Cal.4th at p. 1002, original italics omitted, italics added; see also
       In re Tameka C. (2000) 22 Cal.4th 190, 197-198 [“in the commission of” a
       felony, as used in § 12022.5, means during and in furtherance of the
       felony].)
       As Bland makes clear, for a defendant to be “armed” for purposes of
section 12022’s additional penalties, he or she must have a firearm “available for use to
further the commission of the underlying felony.” (Bland, supra, 10 Cal.4th at p. 999,
italics added.) “[W]hen the underlying felony is a continuing offense, it is sufficient if
the defendant has a gun available at any time during the felony to aid in its commission.
[Citation.]” (People v. Becker (2000) 83 Cal.App.4th 294, 297, italics added.)
       Having a gun available does not further or aid in the commission of the crime of
possession of a firearm by a violent offender. Thus, a defendant convicted of violating
section 12021.1 does not, regardless of the facts of the offense, risk imposition of
additional punishment pursuant to section 12022, because there is no “facilitative nexus”
between the arming and the possession. 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 “[d]uring 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.” (Webster’s 3d New
Internat. Dict. (1986) p. 703.) 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.
(Bland, supra, 10 Cal.4th at p. 1002 [“‘in the commission’ of” requires both that
“‘arming’” occur during underlying crime and that it have facilitative nexus to offense].)
       In re Pritchett (1994) 26 Cal.App.4th 1754 illustrates the difference. Pritchett
struck his former girlfriend on the head with the barrel of a sawed-off shotgun. He was
convicted of possessing the gun under former section 12020, subdivision (a), and his


                                             17.
sentence was enhanced, pursuant to section 12022.5, subdivision (a), for use of the
firearm in commission of that offense. (Pritchett, supra, at pp. 1755-1756.) On appeal,
the People argued the enhancement was valid, because Pritchett used the shotgun to strike
the victim in the commission of possessing the gun. (Id. at p. 1757.) The Court of
Appeal disagreed, explaining: “Although Pritchett used the shotgun as a club during his
possession of it, he did not use it ‘in the commission’ of his crime of possession.
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.” (Ibid., fn.
omitted.)
       Following this reasoning, a defendant may be armed with a firearm during his or
her possession of the gun, but not “in the commission” of his or her crime of possession.
There is no facilitative nexus; having the firearm available for use does not further the
illegal possession of it. There is, however, a temporal nexus. 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
resentencing if he or she was armed with a firearm during the unlawful possession of that
firearm. Taking the literal language and electorate’s intent into consideration, no
tethering offense, enhancement, or facilitative nexus is required when the eligibility
determination is at issue.
III.   The prosecution’s failure to plead and prove “arming” as a disqualifying
       factor does not entitle defendant to resentencing.
       Defendant contends the statutory language contains pleading and proof
requirements that were not met in his case. As amended by the Act, the three strikes law
provides in pertinent part that “[i]f a defendant has two or more prior serious and/or
violent felony convictions as defined in subdivision (c) of Section 667.5 or


                                             18.
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 the three strikes law, the defendant shall
be sentenced as a second strike offender] unless the prosecution pleads and proves any of
the following: [¶] … [¶] (iii) During the commission of the current offense, 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), italics added,
1170.12, subd. (c)(2)(C), italics added.) Thus, when an initial sentencing for a current
offense is at issue, there is a clear statutory pleading and proof requirement with respect
to factors that disqualify a defendant with two or more prior strike convictions from being
sentenced as a second strike offender. (People v. Yearwood, supra, 213 Cal.App.4th at
p. 170; see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303,
fn. 26 (Kaulick).)
       Fairly read, however, section 1170.126 does not impose the same requirements in
connection with the determination whether an inmate already sentenced as a third strike
offender is eligible for resentencing as a second strike offender. (See Kaulick, supra, 215
Cal.App.4th at pp. 1298-1299, fn. 21.) Subdivision (e) of the statute provides: “An
inmate is eligible for resentencing if: [¶] … [¶] (2) The inmate’s current sentence was
not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii),
inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.”
(Italics added.) This language refers specifically and expressly to the disqualifying
factors, and does not incorporate the pleading and proof requirements contained in other
portions of sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C).
       Defendant claims, however, that an inmate seeking resentencing pursuant to
section 1170.126 has a Sixth Amendment right to a jury determination, beyond a
reasonable doubt, on the question of conduct constituting a disqualifying factor.
Subdivision (f) of section 1170.126 expressly provides that, “[u]pon receiving a petition

                                             19.
for recall of sentence under this section, the court shall determine whether the petitioner
satisfies the criteria in subdivision (e).” (Italics added.)
       Of course, constitutional requirements supersede statutory language. 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.) In addition, the United States Supreme Court has made clear 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 v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi).)6 This is so whether the fact increases the statutory maximum penalty or a
mandatory minimum penalty. (Alleyne v. United States (2013) 570 U.S. ___, ___ [133
S.Ct. 2151, 2160].) “Juries must find any facts that increase either the statutory
maximum or minimum because the Sixth Amendment applies where a finding of fact
both alters the legally prescribed range and does so in a way that aggravates the penalty.”
(Id. at p. 2161, fn. 2.) “When a finding of fact alters the legally prescribed punishment so
as to aggravate it, the fact necessarily forms a constituent part of a new offense and must
be submitted to the jury.” (Id. at p. 2162.)




6      “[T]he ‘statutory maximum’ for Apprendi purposes 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. [Citations.] In other words, the relevant ‘statutory maximum’ is not
the maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” (Blakely v. Washington
(2004) 542 U.S. 296, 303-304, italics omitted.)



                                               20.
      Apprendi and its progeny do not apply to a determination of eligibility for
resentencing under the Act. As the Court of Appeal explained in Kaulick, supra, 215
Cal.App.4th 1279:

              “The maximum sentence to which Kaulick, and those similarly
      situated to him, is subject was, and shall always be, the indeterminate life
      term to which he was originally sentenced. While Proposition 36 presents
      him with an opportunity to be resentenced to a lesser term, unless certain
      facts are established, he is nonetheless still subject to the third strike
      sentence based on the facts established at the time he was originally
      sentenced.…

              “Moreover, 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.
      (Dillon v. United States (2010) 560 U.S. 817, [828] (Dillon).) At issue in
      Dillon was a modification to the sentencing guideline range for the offense
      of which the defendant was convicted. The law provided that a prisoner’s
      sentence could be modified downward when the range had been lowered;
      however, the law provided that a sentence could only be lowered if
      consistent with applicable policy statements.… The Supreme Court had
      already held that, in order to avoid constitutional problems, the federal
      sentencing guidelines were advisory, rather than mandatory. The issue in
      Dillon was whether the policy statement, which did not permit reducing a
      sentence below the amended range except to the extent the original term
      was below the original range, must also be rendered advisory. (Id. at
      p. [819].) The Supreme Court concluded that it remained mandatory. This
      was so because the statute allowing resentencing when the sentencing range
      was lowered was, itself, not a plenary resentencing in the usual sense.
      Instead, the statute simply authorized a limited adjustment to an otherwise
      final sentence. (Id. at p. [826].) The court stated, ‘Notably, the sentence-
      modification proceedings authorized by [the statute] are not constitutionally
      compelled. We are aware of no constitutional requirement of retroactivity
      that entitles defendants sentenced to a term of imprisonment to the benefit
      of subsequent Guidelines amendments. Rather [the statute] represents a
      congressional act of lenity intended to give prisoners the benefit of later
      enacted adjustments to the judgments reflected in the Guidelines. [¶]
      Viewed that way, proceedings under [this statute] do not implicate the Sixth
      Amendment right to have essential facts found by a jury beyond a
      reasonable doubt. Taking the original sentence as given, any facts found by


                                           21.
       a judge at a [modification downward] proceeding do not serve to increase
       the prescribed range of punishment; instead, they affect only the judge’s
       exercise of discretion within that range.’ (Id. at p. [828].) Such decisions,
       stated the court, simply do not implicate Sixth Amendment rights. ([Id. at
       pp. 828-829.])

              “The language in Dillon is equally applicable here. 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 … do not implicate Sixth Amendment issues.”
       (Kaulick, supra, 215 Cal.App.4th at pp. 1303-1305.)
       We recognize that Kaulick was concerned with a trial court’s discretionary
determination whether an inmate who is eligible for resentencing nevertheless should not
be resentenced due to his or her dangerousness. Its reasoning applies with equal force to
the initial eligibility determination, however. 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. In the
case of a third strike offender such as defendant, that sentence is the indeterminate term
of 25 years to life in prison that the trial court permissibly imposed, at the time defendant
was convicted of his current offense, “solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. [Citations.]” (Blakely v. Washington, supra, 542
U.S. at p. 303, italics omitted.) A trial court’s determination in the section 1170.126
proceeding that a defendant was armed with a firearm during the commission of his or
her current offense does not increase the penalty to which the defendant is already
subject, but instead disqualifies the defendant from an act of lenity on the part of the
electorate to which the defendant is not constitutionally entitled.7


7      Defendant’s attempt to distinguish Dillon on the authority of Pepper v. United
States (2011) 562 U.S. ___ [131 S.Ct. 1229] fails. Pepper involved a plenary
resentencing after the defendant’s sentence had been set aside on appeal. (Id. at p. 1236.)



                                             22.
         Defendant contends that whether he was armed during commission of his current
offense constitutes criminal conduct, and, while the trial court determines aggravating
and mitigating circumstances for sentencing purposes, it is the jury’s function to
determine the wrongful conduct for which punishment is to be imposed. Thus, he says,
whether he was armed with a firearm had to be found true by a jury beyond a reasonable
doubt.
         If we were concerned with the propriety of the imposition of additional or
aggravated punishment based on the nature of defendant’s current conviction,
defendant’s argument would have merit. (See, e.g., People v. Wilson (2013) 219
Cal.App.4th 500, 503-504, 515-516 [trial court improperly sentenced defendant under
three strikes law; court could not have found prior offense constituted strike without
resolving factual dispute, and court may not impose sentence above statutory maximum
based on disputed facts about prior conduct not admitted by defendant or implied by
elements of offense]; People v. Bautista (2005) 125 Cal.App.4th 646, 654-655 [defendant
was entitled, under federal constitutional law, to jury determination whether current
offense included personal use of firearm so as to make it a serious felony for purposes of
imposition of § 667, subd. (a) enhancement]; People v. Taylor (2004) 118 Cal.App.4th
11, 22-23, 26-27 [for purposes of imposition of enhancement under § 667, subd. (a),
felony that does not qualify as serious felony as matter of law under § 1192.7, subd. (c)
may be found to constitute serious felony if prosecution pleads and proves fact necessary
to establish statutorily defined conduct; whether prior conviction qualifies as serious
felony is question of law for court to determine based on record of conviction, but
whether current offense is serious felony is question of fact for jury to decide based on
evidence presented at trial]; see also People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192-
1193 [because complete denial of opportunity for probation constitutes equivalent of
increase in penalty, prior convictions rendering defendant ineligible for probation with
respect to current offense must be pled and proved].)

                                             23.
       In the present case, however, we are not concerned with the initial imposition of
sentence. As we have explained, defendant has already had an indeterminate term of 25
years to life imposed. Although the Act refers to defendant’s “current” offense (e.g.,
§§ 667, subd. (e)(2)(C)(i)-(iii), 1170.12, subd. (c)(2)(C)(i)-(iii)), the offense is “current”
not because, as in the preceding cases, defendant is pending sentencing on it, but because
it is his most recent conviction and the offense for which he is presently serving a
sentence. Cases limiting consideration to the elements of the offense and facts proven to
the trier of fact beyond a reasonable doubt do not constrain a court where, as here, the
issue is eligibility for a lesser sentence than the one already properly imposed. Like facts
invoked to limit the ability to earn conduct credits, facts invoked to render an inmate
ineligible for downward resentencing do not increase the penalty for a crime beyond the
statutory maximum or alter the legally prescribed punishment so as to aggravate it, and so
need not be pled or proved. (See People v. Lara (2012) 54 Cal.4th 896, 901, 905-906.)8
                                       DISPOSITION
       The judgment is affirmed.




8      Defendant suggests such an interpretation would permit a trial court to find
arming, so as to disqualify an inmate from resentencing under the Act, even if an arming
enhancement was pled but found not true by a jury, thereby running afoul of
constitutional proscriptions against double jeopardy. As such a situation does not exist in
the present case, we decline to issue what would amount to an advisory opinion thereon.



                                              24.
