Filed 4/24/14 P. v. Smith 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F067404
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF94526645)
                   v.

ANTHONY LAMONT SMITH,                                                                     OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Carol Foster, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for
Plaintiff and Respondent.

*        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.
                                         -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, Anthony Lamont Smith (defendant), an
inmate serving a term of 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 Act. The
trial court determined defendant did not qualify (was ineligible) for resentencing and
denied the petition. Defendant now appeals.


1      Further statutory references are to the Penal Code unless otherwise stated.



                                             2.
       We hold that a person convicted of being a felon 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 determine the existence of a disqualifying
factor. The trial court here having found automatic disqualification, we reverse and
remand for further proceedings.
       We also hold that being armed with a firearm can disqualify an inmate, whose
current offense is felon in possession of a firearm, without a facilitative nexus between
the arming and the possession; that section 1170.126 does not impose a pleading and
proof requirement; and that a trial court’s order finding a defendant not eligible for
resentencing is appealable.
                        FACTS AND PROCEDURAL HISTORY
       On April 3, 1995, a jury convicted defendant of being a felon in possession of a
firearm. (Former § 12021, subd. (a), see now § 29800, subd. (a).)2 The court found
defendant had suffered two prior “strike” convictions and, on June 7, 1995, sentenced
him to 25 years to life in prison.
       On March 25, 2013, defendant petitioned the trial court for a recall of sentence
pursuant to section 1170.126.3 The trial court made a preliminary finding defendant was
eligible for resentencing. On May 16, 2013, however, it issued a written order denying



2      The facts underlying the offense are not contained in the record on this appeal.
        Former section 12021, subdivision (a) was repealed as of January 1, 2012, but its
provisions were reenacted without substantive change as section 29800, subdivision (a).
(People v. Correa (2012) 54 Cal.4th 331, 334, fn. 1.) Because defendant was convicted
under the repealed statute, which was only renumbered without substantive change, we
refer to former section 12021 throughout this opinion for clarity and convenience. For
brevity, we will not use the word “former” and will sometimes omit the subdivision.
3     The Fresno County Public Defender filed the petition on defendant’s behalf.
Defendant also filed his own petition.



                                             3.
the request for recall of sentence, on the ground defendant was statutorily ineligible
therefor. In part, the court found:

              “[The] language of Section 1170.126(e)(2) is less than clear
       concerning whether mere possession of a firearm or deadly weapon will
       exclude a petitioner from consideration of resentencing. For instance, that
       section forbids consideration of resentencing if the current sentence was
       imposed for an ‘offense’ appearing in the designated sections of
       667(e)(2)(C)(iii) or 1170.12(c)(2)(C)(iii). A careful reading of those
       sections, however, reveals that no actual ‘offense’ appears in the designated
       clauses of those operative sections. Rather, each of those subsections set
       out enhancements to actual offenses. Significantly, there were no
       enhancements found true in petitioner Smith’s offense of conviction.

               “In order to resolve this, and other, inconsistent language within the
       statute, the court must consider the intent of the electorate. [¶] … [¶]

              “There is language in the official ballot pamphlet that sets out the
       intent of the electorate regarding gun related felonies committed by ‘three-
       strikes’ defendants.

             “‘The measure limits eligibility for resentencing to third strikers
       whose current offense is non-serious, non-violent and who have not
       committed specified current and prior offenses, such as certain drug-, sex-,
       and gun-related felonies.[’] ([E]mphasis added.)

              “Read in context of the entire statute, this language clarifies that the
       voters were informed that third strikers with gun related felonies would not
       be eligible for resentencing .… Considering that clarifying language, this
       court concludes that those individuals convicted of offenses involving the
       possession of firearms are not eligible for resentencing. Defendant Smith’s
       current offense (third strike) is for a violation of Penal Code Section
       12021(a), commonly referred to as felon in possession of a firearm. Given
       that conviction, which establishes that the defendant was convicted of an
       offense involving the possession of a firearm, this court concludes he is
       statutorily ineligible for resentencing. Without considering the underlying
       issue of ‘unreasonable risk of danger to the community,’ this petition for
       resentencing is DENIED.”

       Defendant filed a timely notice of appeal.




                                             4.
                                        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
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 1995. 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

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 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; on remand, the
       court must examine the record of conviction 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.,
§ 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


                                              6.
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, subdivision (a),
which, at all times pertinent to this appeal, has made it a felony for a person previously
convicted of a felony 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 a felony and
ownership or knowing possession, custody, or control of a firearm. (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 crime is committed the instant the felon 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,

                                              7.
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 the
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 is one of the interpretation of a statute and
its applicability to a given situation, a question of law we review independently.
(Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; Southern California Edison Co. v.
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

                                             8.
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
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 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 is insufficient, standing alone, to disqualify a defendant.

                                              9.
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
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. Significantly, however, those categories, while broad, are not
unlimited. Voters easily could have expressly disqualified any defendant who committed

                                            10.
a gun-related felony or who possessed a firearm, had they wanted to do so. This is not
what voters did, however.
       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
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

                                             11.
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.

              “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

                                              12.
       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.”
(§§ 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


                                             13.
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 a convicted felon
would be under his or her dominion and control, but would present little or no real
danger. Thus, we reject the People’s assertion defendant’s offense, for possessing a
firearm as a felon, in and of itself, placed him within the meaning of “armed” for
purposes of section 1170.126.
       Since the trial court found defendant disqualified from resentencing based solely
on the fact his current conviction was for being a felon in possession of a firearm, the
order denying the petition for recall of sentence must be reversed and the matter
remanded for a new eligibility determination and, if defendant is eligible for
resentencing, further proceeding as specified in section 1170.126, subdivision (f).
       In a supplemental brief, the People contend that, assuming the dominion and
control over a firearm required to support a conviction for violating section 12021 is not
alone sufficient to disqualify an inmate from resentencing under section 1170.126,
subdivision (e)(2), a trial court should be permitted to examine the record of conviction to
determine the existence of disqualifying factors. We agree. 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. Accordingly, upon remand in the present case, the trial court should examine the
entire record of defendant’s current conviction to determine whether it establishes the




                                            14.
existence of a disqualifying factor, and, if it does not, proceed as directed in
subdivision (f) of section 1170.126.5
III.   A conclusion defendant may be disqualified from resentencing for being
       “armed with a firearm” within the meaning of the Act, though he was only
       convicted of possessing a firearm, does not run afoul of the Act’s language, or
       violate pleading and proof requirements or rules of statutory construction.
       Defendant says he can only be found eligible for resentencing, so the sole question
remaining is whether resentencing him would pose an unreasonable risk of danger to
public safety. We are not persuaded.
       Defendant first 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
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

5       “[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.) However, the appellate opinion will not necessarily
be relevant or admissible in its entirety. (Id. at pp. 457-460.) This may be especially true
where the facts recited in the appellate opinion have their source not in the evidence
adduced at trial, but rather in the probation officer’s report. (See People v. Trujillo
(2006) 40 Cal.4th 165, 180-181; People v. Reed (1996) 13 Cal.4th 217, 220, 230-231.)



                                             15.
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).
Contrary to defendant’s assertion, such a construction does not render the pleading and
proof language mere surplusage.
       Defendant points out that his current sentence was not imposed for being armed
during the commission of his current offense, and so was “not imposed for any of the
offenses appearing” in section 667, subdivision (e)(2)(C)(i) through (iii) or
section 1170.12, subdivision (c)(2)(C)(i) through (iii), as required by the literal language
of section 1170.126, subdivision (e)(2). As we have said, however, the literal language
of a statute does not prevail if it conflicts with the lawmakers’ intent. (Lungren v.
Deukmejian, supra, 45 Cal.3d at p. 735; People v. Belton, supra, 23 Cal.3d at p. 526.)
We do not regard the language of section 1170.126, subdivision (e)(2) as indicating an
intent to require a tethering offense, or the pleading and proof of an enhancement (which,
as stated in People v. Izaguirre (2007) 42 Cal.4th 126, 134, “cannot be equated with an
offense”), in order to trigger the disqualifying factors contained in

                                             16.
subdivision (e)(2)(C)(iii) of section 667 and subdivision (c)(2)(C)(iii) of section 1170.12.
We are aware of no provision criminalizing, or permitting imposition of an enhancement
for, the mere intent to cause great bodily injury to another person. Moreover, the drafters
of the initiative knew how to require a tethering offense/enhancement if desired. (See
§§ 667, subd. (e)(2)(C)(i) [disqualifying inmate if current offense is controlled substance
charge in which enumerated enhancement allegation was admitted or found true],
1170.12, subd. (c)(2)(C)(i) [same].) Thus, in order to effectuate the electorate’s intent,
section 1170.126, subdivision (e)(2) must be read as disqualifying an inmate whose
current sentence was imposed for an offense during the commission of which — whether
through a formal element of the offense or enhancement, or mere conduct or other means
— he or she used a firearm, was armed with a firearm or deadly weapon, or intended to
cause great bodily injury to another person.
       Defendant says, however, that “being armed in the context of determining
eligibility under section 1170.126 requires the commission of a separate criminal act.”
He also says one cannot be armed with a firearm during the commission of possession of
the same firearm.
       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, for which a defendant cannot be punished until and unless convicted of a
related substantive offense. (People v. Dennis (1998) 17 Cal.4th 468, 500; see People v.
Izaguirre, supra, 42 Cal.4th at p. 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:

                                               17.
               “[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
       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.)



                                             18.
       Having a gun available does not further or aid in the commission of the crime of
possession of a firearm by a felon. Thus, a defendant convicted of violating
section 12021 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
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.)



                                             19.
         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 or enhancement is required when the eligibility determination is at
issue.
                                      DISPOSITION
         The judgment (order denying petition for recall of sentence) is reversed. The
matter is remanded to the trial court for further proceedings in accord with the views
expressed in this opinion.




                                             20.
