Filed 7/23/15 P. v. Rankin 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                         D067205

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD108327)

JOHNNY RANKIN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.



         Patrick J. Hennessey, Jr., 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, Eric A. Swenson, and Felicity

Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
                                     BACKGROUND

       In September of 1994, San Diego police initiated a traffic stop. Defendant, a Crip

gang member, was in the backseat. He left the car and attempted to leave but was

instructed by an officer to remain in the area. He complied, but engaged in a struggle

with the officer when he started to move away from the vehicle. Defendant was placed in

a patrol car and the driver and front seat passenger were detained. Defendant and the

front seat passenger were Crip gang members.

       An officer looked into the vehicle and in plain view saw a sawed-off 22-gauge

shotgun on the rear passenger floorboard. It was loaded with a yellow 20-gauge shotgun

shell. From where he was in the patrol car, defendant yelled to the officers that "the

shotgun was mine. They had no idea it was there. I put it in the back. I don't want them

in trouble. Now I have nothing else to say except I want a lawyer." Thereafter the driver

and front seat passenger were placed in the patrol car with defendant. After being told

they were being recorded, defendant repeatedly stated he did not want to get the others in

trouble and that he told the police the shotgun belonged to him.

       Defendant was arrested and when searched, officers found a yellow 20-gauge

shotgun shell in his pocket.

       On April 28, 1995, a jury convicted defendant of possession of a firearm by a

felon, in violation of former Penal Code section 12021, subd (a) (renumbered § 29800,

subd. (a)(1))1, and possession of a deadly weapon, a sawed-off shotgun, in violation of



1      All further statutory references are to the Penal Code unless otherwise indicated.
                                             2
former section 12020, subd. (a)(1) (renumbered § 33215). In addition the court found

three prior "strike" convictions and three prior prison allegations to be true.

       On June 6, 1995, defendant was sentenced to 25 years to life under the pre-

Proposition 36 version of the "Three-Strikes" law. On appeal this court remanded the

case for the trial court to exercise the discretion vested in it by People v. Superior Court

(Romero) (1996) 13 Cal.4th 497. Following remand the trial court again imposed the 25-

year-to-life sentence under the Three Strikes Law.

       On November 7, 2012, the Three Strikes Reform Act became effective. That Act

added section 1170.126, which provides for a resentencing option for "persons presently

serving an indeterminate term of imprisonment pursuant to" the Three Strikes Law.

(Reform Act § 6).

       On January 14, 2014, defendant filed a petition in the trial court under section

1170.126 requesting a recall of his life sentence and further requesting resentencing to a

determinate term. He argued the life sentences for violation of sections 12021 subd. (a)

and 12020 subd. (a), were not serious or violent felonies, nor were they enumerated in

section 667, subd. (e)(2)(C)(i-iii).

       On November 12, 2014, the trial court issued an order to show cause why it should

not deny the petition for resentencing on the ground defendant was ineligible for relief

under section 1170.126, subd. (e)(2); because of the nature of the commitment offense in

felon in possession of a firearm (§ 12021, subd. (a)). The trial court noted that because

ineligibility requires a finding the defendant was "armed with a firearm," the issue before

the court was whether possession of a firearm can constitute being armed. The court

                                              3
further stated the record reflected defendant had possession of the gun, "under conditions

in which the gun was readily available for his use," specifically before his detention on

the traffic stop, defendant was seated in the rear passenger compartment of a vehicle

where a loaded sawed-off shotgun was subsequently discovered on the floorboard.

       In response to the court's inquiry issue, defendant argued the prosecution must

prove to a jury beyond a reasonable doubt that he was ineligible for resentencing and that

the prosecution needed to show a "tethering" felony. The People responded that based on

this court's decision in People v. White (2014) 223 Cal.App.4th 512, defendant was

armed with the shotgun because he had ready access to it in the backseat where he was

sitting; moreover he had a matching shotgun shell in his pocket and admitted the shotgun

belonged to him. Defendant, in response, urged he was in no more than constructive

possession of the gun.

       The trial court rejected defendant's arguments, finding the record supports a

finding defendant was armed with a firearm and thus was ineligible for the relief he was

requesting.

       Defendant filed a timely notice of appeal.

                                      DISCUSSION

       Defendant presents a twofold argument. First, he urges the trial court was

required to make its findings under the clear and convincing evidence standard of proof

and failed to do so. He further urges the facts of this case do not support a finding he was

"armed" with a firearm, thus making him ineligible for relief under section 1170.126.

We reject both contentions.

                                             4
       Defendant urges a disqualifying factor must be proved by clear and convincing

evidence. For this proposition he relies primarily on Justice Raye's concurring opinion in

People v. Bradford (2014) 227 Cal.App.4th 1322, 1350-1351. As defendant notes,

however, the weight of authority is to the contrary. In People v. Osuna (2014) 225 Cal.

App.4th 1020, 1040 (Osuna) the court holds that because a trial court's determination that

a defendant is ineligible for resentencing pursuant to section 1170.126 does not increase

the penalty to which the defendant is already subjected, but rather disqualifies a

defendant from an act of lenity on the part of the electorate to which a defendant is not

constitutionally entitled, a trial court need only find a disqualifying factor by a

preponderance of the evidence. We agree with the holding of Osuna.

       Among the disqualifying factors enumerated in the Three Strikes Reform Act of

2012 is if, "[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), emphasis

added; see §1170.126, subd.(e)(2).) The question remains whether a preponderance of

the evidence supports the conclusion defendant was armed with a firearm such that he

would be found ineligible. We conclude the evidence supports a conclusion he is

ineligible.

       Citing People v. Bland (1995) 10 Cal.4th 991, 997, this court noted in People v.

White (2014) 223 Cal.App.4th 512, 525, that a person is "armed" when they have ready

access to the weapon that constitutes the arming. (See Health and Safety Code § 11370.1

and People v. Gonzales (1992) 8 Cal.App.4th 1658, 1662-1663.)

                                               5
      Here, although defendant was not specifically charged with being armed with a

firearm, he had immediate access to the loaded shotgun. It was on the floorboard in the

backseat where he alone was seated. He repeatedly admitted the shotgun was his.

People v. White, supra, p. 525. Thus we conclude defendant is ineligible for the relief

allowed in the Three Strikes Reform Act.

                                     DISPOSITION

      The judgment is affirmed.



                                                                               BENKE, J.

WE CONCUR:



MCCONNELL, P. J.



MCDONALD, J.




                                            6
