Filed 3/30/16 P. v. Ward CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041827
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC617275)

         v.

MICHAEL WAYNE WARD,

         Defendant and Appellant.


         Defendant Michael Wayne Ward appeals from an order denying his petition for
resentencing under Penal Code section 1170.126, a provision added by Proposition 36,
the Three Strikes Reform Act (Reform Act), in November 2012.1 Defendant challenges
the court’s finding that he was ineligible for resentencing because he was armed with a
firearm during the commission of the third-strike offense for which he sought reduction
of his sentence. He specifically contends: (1) The record of his conviction for that
offense contains insufficient evidence that he was “armed with a firearm”; (2) The
prosecution did not plead and prove the fact of arming in the trial leading to his
conviction; (3) The court engaged in improper judicial fact finding, in violation of his
rights to due process and trial by a jury; and (4) Exclusion of his weapon offense from
resentencing eligibility was improper without a separate “tethering” felony in which he
was armed. We find no error and therefore must affirm the order.


         1
        All further statutory references are to the Penal Code except as otherwise
specified.
                                        Background
       In January 2007 a jury found defendant guilty of the following felonies:
possession of a firearm by a person convicted of a violent felony (former § 12021.1,
subdivision (a)); possession of ammunition by a person prohibited from possessing a
firearm (former § 12316, subd. (b)); and possession of marijuana for sale (Health & Saf.
Code, § 11359). In a bifurcated trial, the court found true the allegations that he had
suffered three prior strike convictions (§ 667, subds. (b)-(i)) and that he had served two
prior prison terms within the meaning of section 667.5, subd. (b)). On August 31, 2007,
the court sentenced defendant to prison for 52 years to life.
       Defendant’s offenses arose from a police search of a San Jose motel room
occupied by defendant. Inside a duffel bag found in a closet, Officer Mario Brasil
discovered a digital scale, approximately 35 small plastic baggies of a type commonly
used to package controlled substances, a radio scanner, a ski mask, and two pieces of
paper with defendant’s name on them. Officer Stephen Corbin also found part of a
plastic baggie in the toilet. Upon searching a black plastic garbage bag that defendant
had been carrying when the officers saw him outside the motel room, Officer Brasil
found 86 rounds of .22-caliber ammunition inside a wet sock.
       Inside a vent above the shower in the bathroom, Officer Corbin found a black
plastic bag containing approximately seven grams of marijuana. When he pulled the bag
through the vent, he spotted a .22-caliber semi-automatic handgun with two rounds of
ammunition in the magazine.
       At trial, Officer Brasil opined that the quantity of marijuana found was possessed
for sale based on the quantity found and the presence of the scale, the baggies, the
scanner, and the cell phone. Altogether there was a sufficient quantity of marijuana and
drug paraphernalia in the motel room to convince the jury that the marijuana was
possessed for sale. This court affirmed defendant’s conviction on February 6, 2009.
People v. Ward (Feb. 6, 2009, H032038) [nonpub. opn.] (H032038).

                                             2
       On January 17, 2013, following the passage of Proposition 36 in the November
2012 election, defendant filed a petition requesting a finding that he was eligible for
resentencing pursuant to section 1170.126. The People opposed the petition, asserting
that an exception to resentencing eligibility applied here under section 1170.126,
subdivision (e)(2) and section 1170.12, subdivision (c)(2)(C)(iii), because defendant was
armed during the section 12021.1 offense, possession of a firearm.
       The superior court initially found defendant eligible, reasoning, “A conviction for
violation of § 12021 does not, in and of itself, establish that a petitioner was ‘armed
during the commission’ of an offense. The arming circumstance or allegation will
disqualify a petitioner from resentencing under § 1170.126(e) only if it has been
plead[ed] and prove[d] and is thus reflected in the record of conviction.” Accordingly,
the court directed resentencing of petitioner “unless the court, in its discretion, determines
that resentencing the petitioner would pose an unreasonable risk of danger to public
safety.”
       On July 31, 2013, defendant asked the court to take the matter off calendar. Over
the People’s objection, the court deemed the request a motion to withdraw the petition
and granted it. But on October 28, 2014, defendant filed another section 1170.126
petition. This time the superior court, recognizing a large body of law that had developed
since the earlier petition, found defendant ineligible and denied the petition.
                                         Discussion
1. Eligibility for Resentencing under section 1170.126
       Subdivision (e) of section 1170.126 provides that an inmate is “eligible for
resentencing” if (1) he or she is “serving an indeterminate term of life imprisonment”
imposed under the Three Strikes law “for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies” and (2) his or her current and prior convictions
are not for certain designated offenses. (§ 1170.126, subd. (e)(1); Teal v. Superior Court
(2014) 60 Cal.4th 595, 600.) (2) Among those offenses are those appearing in clauses

                                              3
(i) through (iii) 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. The inmate must also have “no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12.” (§ 1170.126, subd. (e).) At issue here is the exception for eligibility
which applies if the defendant was “armed with a firearm or deadly weapon” “[d]uring
the commission of the current offense.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12,
subd. (c)(2)(C)(iii).)
2. Sufficiency of the Evidence of Arming During Drug Possession
       Defendant first argues that the record establishes only possession of a weapon, but
does not support the conclusion that he was armed with a firearm within the meaning of
the statutory exception to resentencing eligibility. (§§ 1170.126, subd. (e)(2); 667,
subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii).). We disagree.
       “[A]rming . . . does not require that a defendant utilize a firearm or even carry one
on the body. A defendant is armed if the defendant has the specified weapon available
for use, either offensively or defensively. . . . ‘[I]t is the availability—the ready access—
of the weapon that constitutes arming.’ [Citation.]” (People v. Bland (1995) 10 Cal.4th
991, 997 (Bland).) In People v. Osuna (2014) 225 Cal.App.4th 1020, 1032, the court
explained: “[U]nlike 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 ‘during 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.’ [Citation.] 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. . . . Since the
Act uses the phrase ‘[d]uring the commission of the current offense,’ and not in the

                                              4
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
[Reform] Act disqualifies an inmate from resentencing if he or she was armed with a
firearm during the unlawful possession of that firearm.” (Ibid.; accord, People v. Brimmer
(2014) 230 Cal.App.4th 782, 798-799 (Brimmer); see, e.g., People v. Blakely (2014) 225
Cal.App.4th 1042, 1054 (Blakely) [while inmate’s possession conviction alone
insufficient for ineligibility finding under section 1170.126, resentencing foreclosed upon
finding, based on the record of conviction, that the weapon was available for use during
commission of the possession offense].)
       The Second Appellate District, Division Three recently held that in determining a
defendant’s ineligibility for resentencing under section 1170.126 the appropriate standard
of proof is beyond a reasonable doubt. (People v. Arevalo (2016) 244 Cal.App.4th 836,
852-853.) “Under a lesser standard of proof, nothing would prevent the trial court from
disqualifying a defendant from resentencing eligibility consideration by completely
revisiting an earlier trial, and turning acquittals and not-true enhancement findings into
their opposites.” (Id. at p. 853.) Defendant contends that under this standard, there was
insufficient proof that he was armed with a firearm while possessing the drugs,
ammunition, and weapon.
       In support of this position defendant points to the testimony of Stephen Corbin, the
police officer who recovered the gun from the vent above the shower. Officer Corbin
retrieved the gun by entering the attic through a crawl space in a closet. When asked
whether the opening in the vent slat above him was wide enough to have allowed him to
pull the gun out, the officer said, “I believe it was. I never tried that.” He did not
attempt to pull the gun through, he explained, because the gun might have discharged and
to bring it down safely, he would have had to remove the entire vent, damaging it in the
process. In defendant’s view, the evidence permits only speculation, not a finding

                                              5
beyond a reasonable doubt, that he had ready access to the gun during the possession
offenses.
       The trial court had no difficulty concluding that defendant was armed during the
commission of his 2007 crimes. It found that “[o]n these facts, there is no question that
Defendant was ‘armed’ [with] the firearm during the commission of the possession for
sales of marijuana.” The court compared this case to that of Bland, supra, 10 Cal.4th at
p. 997, where the Supreme Court stated that a defendant is “armed with a firearm” if “at
any time during the commission of the felony drug possession, the defendant can resort to
a firearm to further that offense.” (Id. at p. 999.) In the trial court’s view, “[t]he record
here clearly establishes that, at some point during the felony possession, Defendant could
‘resort to [the] firearm to further that offense’ and thus was armed during the commission
of that offense.”
       Whether the trial court made this finding “beyond a reasonable doubt” or by a
preponderance of the evidence makes no difference to the outcome of this appeal. We
agree with the court that the location of the firearm in the vent above the shower does not
preclude a finding—even under a beyond a reasonable doubt standard—that defendant
was armed with a firearm during the commission of his drug and weapon-related
offenses. The fact that the officer retrieved the gun by climbing through a crawl space in
the attic does not mean that it was inaccessible and unavailable for defendant’s use at
some point during his possession. The marijuana was found in the same place as the gun,
the gun was loaded, and the ammunition was nearby in the motel room itself, which had
been rented to defendant and another individual.2 In the closet was a black duffel bag
with indicia of drug sales, a scanner, and a digital scale. Possession being a continuing



  2
     Initially defendant had rented room 29. A notation on the registration card indicated
that the occupants had moved to room 28, where the evidence was found. Both rooms
had access to the bathroom.

                                               6
offense, a fair inference from the location of all the evidence seized in the search is that
defendant had ready access to the weapon at some time during the commission of his
crimes. (Cf. People v. Searle (1989) 213 Cal.App.3d 1091, 1099 [gun in unlocked
compartment in the back of the car was “available for use” during sale of drugs from car],
cited with approval in Bland, supra,10 Cal.4th at p. 997; cf. People v. Delgadillo (2005)
132 Cal.App.4th 1570, 1575 [firearms were available for use in continuing crime of
methamphetamine manufacturing despite their being in different locations from
manufacturing ingredients and equipment].) Thus, substantial evidence in the record of
conviction, including the officers’ trial testimony as well as this court’s opinion in
H032038 (see Brimmer, supra, 230 Cal.App.4th at p. 800 [prior unpublished appellate
opinion sufficient evidence of record of conviction],) supports the superior court’s
finding that defendant was “armed with a firearm” at some point during the commission
of the possession offenses.
3. Pleading and Proof Requirement
       Defendant observes that his “current offenses, possession of marijuana for sale,
felon in possession of a firearm and [possession of] ammunition, are not strikes, and
plainly can be committed without being armed with a firearm.” In his view, these
offenses therefore cannot be considered strikes and qualify for resentencing under the
Reform Act unless the prosecution has pleaded and proved one of the disqualifying
factors listed in section1170.12, subd. (c)(2)(C)(iii). Defendant acknowledges that this
argument has not been successful in the appellate courts of this state, including this one.
The defendant in People v. Chubbuck (2014) 231 Cal.App.4th 737 (Chubbuck) likewise
argued that “ ‘a fair reading’ ” of the Reform Act “ ‘compels a conclusion’ that the
pleading and proof language of section 1170.12, subdivision (c)(2)(C) applies to the
disqualifying factors referenced in section 1170.126, subdivision (e)(2).” (Chubbuck,
supra, at p. 746.) In other words, because the Reform Act expressly requires the
prosecution to plead and prove the disqualifying factors at the initial sentencing of a

                                              7
potential third strike defendant, the prosecution must also plead and prove the
disqualifying factors for anyone seeking resentencing under the Reform Act.
       This court expressly rejected Chubbuck’s argument, pointing out that the Reform
Act “explicitly distinguishes between the procedures applicable to resentencing and the
procedures applicable prospectively, to defendants who are being sentenced for a new
offense.” (Chubbuck, supra, 231 Cal.App.4th at p. 746.) We further noted, “Several
published cases have held that the Reform Act does not contain a pleading and proof
requirement with respect to factors that disqualify defendants from resentencing,
including People v. White (2014) 223 Cal.App.4th 512 (White ) (Ct. App., Fourth Dist.,
Div. One), People v. Osuna (2014) 225 Cal.App.4th 1020 (Osuna) (Ct. App., Fifth Dist.),
People v. Blakely (2014) 225 Cal.App.4th 1042 (Ct. App., Fifth Dist.), People v. Elder
(2014) 227 Cal.App.4th 1308 (Ct. App., Third Dist.), and People v. Brimmer (2014) 230
Cal.App.4th 782 (Ct. App., Fourth Dist., Div. Two). We agree with the analysis in these
cases.” (Id. at p. 745.) We continue to follow the reasoning and holdings of those cases
and therefore reject defendant’s claim.
       Nor can we agree with defendant’s suggestion that the court engaged in improper
judicial fact finding, contrary to Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
Shepard v. United States (2005) 544 U.S. 13, and Descamps v. United States (2013) 570
U.S. ___, 133 S.Ct. 2276. As several courts in this state have concluded, “[Apprendi] and
its progeny do not apply to a determination of eligibility for resentencing under section
1170.126.” (People v. Johnson (2016) 244 Cal.App.4th 384, 390, fn. 6; Osuna, supra,
225 Cal.App.4th at pp. 1039-1040; see also People v. Berry (2015) 235 Cal.App.4th
1417, 1428 [finding of ineligibility for resentencing does not expose defendant to any
potential increase in his sentence]; Blakely, supra, 225 Cal.App.4th at p. 1060, quoting
People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304-1305 [“[U.S.
Supreme Court] 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

                                             8
downward sentence modifications due to intervening law” such as proceedings to
determine whether the petitioner satisfies the criteria in section 1170.126,
subdivision (e)]; cf. Dillon v. United States (2010) 560 U.S. 817, 828-829 [no Sixth
Amendment right to jury in downward sentence modification proceeding].)3 Defendant’s
eligibility determination does not implicate the holding of Apprendi.
       We must also reject defendant’s argument that “the rule of lenity” compels an
application of section 1170.12(c)(2)(C) to eligibility determinations under section
1170.126, subdivision (e)(2). In Chubbuck, supra, 231 Cal.App.4th at p. 747, we found
“no ambiguity as to whether section 1170.126, subdivision (e)(2) incorporates the
pleading and proof requirements of section 1170.12, subdivision (c)(2)(C).” We pointed
out that “the rule of lenity ‘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.]’ ” (Id. at p. 748.) We adhere to this reasoning in
the present case.
4. Tethering Requirement
       Defendant’s last contention is directed at the firearm and ammunition offenses.
He maintains that he should not have been found ineligible for resentencing because
ineligibility based on arming may be found “only where there is a separate, ‘tethering’
felony in which the defendant is armed with a firearm.” This contention has been
rejected multiple times by our colleagues in other districts. (See, e.g., Osuna, supra, 225
Cal.App.4th 1020; Brimmer, supra, 230 Cal.App.4th 782.) Distinguishing the same
statutes defendant compares to section 1170.12, subdivision (c)(2)(C)(iii), the Osuna


       3
        People v. Wilson (2013) 219 Cal.App.4th 500 also does not help defendant. In
Wilson, this court held that a trial court’s resolution of a factual issue, whether the offense
involved personal infliction of great bodily injury, violated the defendant’s Sixth
Amendment rights under Apprendi. In that situation, however, the trial court’s finding
was used to increase the defendant’s sentence

                                              9
court observed, “[U]nlike section 12022, which requires that a defendant be armed ‘in the
commission of’ a felony for additional punishment to be imposed (italics added), the
[Reform] Act disqualifies an inmate from eligibility for lesser punishment if he or she
was armed with a firearm ‘during 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.’ [Citation.] 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. . . . 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 [that] 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.” (Osuna, supra, at p. 1032; accord,
People v. Hicks (2014) 231 Cal.App.4th 275, 283-284; Brimmer, supra, at pp. 798-799.)
We find no fault with the analysis in Osuna and therefore conclude that the Reform Act
does not mandate exclusion from resentencing only where there is a separate tethering
felony in which the defendant is armed with a deadly weapon.
                                        Disposition
       The order is affirmed.




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                                  _________________________________
                                  ELIA, ACTING P.J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.




The People v. Ward
H041827
