Filed 8/4/14 P. v. Michael M. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059216

v.                                                                       (Super.Ct.No. INF040548)

MICHAEL M.,                                                              OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Charles Everett Stafford,

Jr., Judge. Affirmed.

         Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
          This is an appeal by defendant and appellant Michael M. following the trial court’s

order denying defendant’s petition to recall his sentence under the Three Strikes Reform

Act of 2012, added by Proposition 36 (the Reform Act). (Pen. Code, § 1170.126.)1

On appeal, defendant argues that (1) the trial court denied his due process rights by

finding him ineligible for resentencing under the Reform Act because the crime of

possession of a firearm by a felon is not a disqualifying offense under section 667,

subdivision (e)(2)(C)(iii); (2) the trial court abused its discretion in finding he posed an

unreasonable risk of danger to public safety without allowing defense counsel a

reasonable opportunity to prepare; and (3) he was denied effective assistance of counsel.

For the reasons explained below, we will affirm the trial court’s order.

                                                  I

                       FACTUAL AND PROCEDURAL BACKGROUND2

          On May 5, 2002, a patrol officer initiated a traffic stop on a vehicle for

excessive speed. Upon contacting the four occupants of the vehicle, one of the

passengers, seated in the right rear seat and identified as defendant, informed the officer

that he had an outstanding warrant. A computer check revealed that defendant was a

parolee at large with a warrant. The officer searched defendant and found a “‘Speedy




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

          2   The factual background of the underlying offense is taken from the probation
report.


                                                  2
Loader’” containing six rounds of .45-caliber ammunition, as well as four other rounds of

the same ammunition.

       A search of the vehicle revealed a loaded .25-caliber semiautomatic handgun with

one bullet in the chamber and seven in the magazine clip under the right front passenger’s

seat; and a loaded .45-caliber revolver in a pouch attached to the back of the right front

passenger’s seat (this pouch was directly in front of defendant’s rear passenger seat). The

revolver contained six rounds of the same ammunition as found in defendant’s pocket.

Another passenger was found in possession of a large amount of .25-caliber ammunition

and 1.5 grams of methamphetamine. A police scanner was also found in the vehicle and

was set on the Palm Springs frequency.

       The four occupants of the vehicle were arrested and transported to the police

station. Defendant was unable to be interviewed as he had consumed a large amount of

methamphetamine when the vehicle was pulled over. Defendant was subsequently

transported to a hospital for treatment of possible overdose.

       On January 22, 2003, an information was filed charging defendant with possession

of ammunition by a felon (Welf. & Inst. Code, §§ 8100 & 8103); possession of a firearm

by a felon (former §§ 12021/12021.1);3 and possession of methamphetamine (Health &

       3   Effective January 1, 2012, former section 12021(a) was repealed and reenacted
without substantive change as section 29800, subdivision (a). (See Cal. Law Revision
Com. com. & Historical and Statutory Notes, 51D Pt. 4 West’s Ann. Pen. Code (2012
ed.) foll. § 29800, p. 194.) All further references to section 12021 are to the former
version.




                                             3
Saf. Code, § 11377, subd. (a)). The information further alleged that defendant had

sustained three prior serious and violent felony convictions (§§ 667, subds. (c) & (e),

1170.12, subd. (c)) for felon in possession of a firearm (§ 12021.1), assault with a deadly

weapon (§ 245, subd. (a)(1)), and robbery (§ 211). The information also alleged that

defendant had served three prior prison terms (§ 667.5, subd. (b)).4

       On November 18, 2003, defendant was convicted of possession of ammunition by

a felon and possession of a firearm by a felon. It was also found true that defendant had

suffered three prior strike convictions and three prior prison terms. Defendant was

subsequently sentenced to 28 years to life in state prison with credit for time served.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Reform Act. Among other things, this ballot measure enacted section 1170.126, which

permits persons currently serving an indeterminate life term under the “Three Strikes”

law to file a petition in the sentencing court seeking to be resentenced to a determinate

term as a second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its

discretion, that the defendant meets the criteria of section 1170.126, subdivision (e), the

court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

       Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is

eligible for resentencing if he or she is serving an indeterminate term of life

imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or

       4 Although not part of the record, the information was apparently amended on
June 23, 2003. The amended information deleted the drug offense charge, but otherwise
contained the same allegations.


                                              4
subdivision (c) of section 1170.12 “for a conviction of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of [s]ection 667.5 or

subdivision (c) of [s]ection 1192.7.” (§ 1170.126, subd. (e)(1).)

       On January 29, 2013, defendant filed a petition for resentencing under

section 1170.126. The People opposed the petition on the grounds that defendant was

statutorily ineligible under the Reform Act because he was armed with a firearm during

the commission of the commitment offenses and because he posed an unreasonable risk

of danger to public safety.

       The trial court heard the petition on July 16, 2013. Following argument from the

parties, the trial court denied the petition, finding defendant ineligible for resentencing

because defendant was armed with a firearm within the meaning of the armed-with-a-

firearm exclusion when he committed his current offense. The court also found

defendant was not eligible for resentencing because defendant posed an unreasonable risk

of danger to public safety.

       On July 17, 2013, defendant filed a notice of appeal.5


       5  The appealability of the denial of a section 1170.126 petition is currently being
considered by the Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217
Cal.App.4th 308, review granted July 31, 2013, S211708 [court held it was not
appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31,
2013, S212017 [court held it was appealable].) Even if we were to conclude it was a
nonappealable order, we could, in the interest of judicial economy and because of
uncertainty in the law, treat defendant’s appeal as a petition for writ of habeas corpus or
petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4
[treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v.
Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating
                                                                   [footnote continued on next page]


                                              5
                                              II

                                          DISCUSSION

        Defendant argues that the trial court denied his due process rights by

finding him ineligible for resentencing under the Reform Act because the crime of

possession of a firearm by a felon is not a disqualifying offense under section 667,

subdivision (e)(2)(C)(iii). Specifically, defendant argues that he was statutorily eligible

under the plain language of the Reform Act, because the statute does not “encompass the

independent offense of possession,” instead the prosecution must plead and prove

defendant was “armed” during the commission of a separate, tethering felony. Defendant

further claims that using a disqualifying factor not pled and proved to the jury would

violate his constitutional rights to due process and a jury trial under Apprendi v. New

Jersey (2000) 530 U.S. 466 (Apprendi), and that the trial court’s “literal, but implausible,

interpretation of [the Reform Act] . . . produce[d] an absurd, unjust, and unconstitutional

result.”

        Defendant also asserts that, assuming he was eligible for resentencing, the matter

should be remanded because the trial court abused its discretion by making a dangerous

finding without allowing counsel a reasonable opportunity to prepare, and because the

trial court stated that if defendant was eligible, defendant would have an opportunity to



[footnote continued from previous page]
appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we
will review defendant’s appeal.



                                              6
put forth evidence.6 In the alternative, defendant claims that he was denied effective

assistance of counsel when counsel was not prepared to put forth evidence concerning the

dangerousness issue and for counsel’s failure to object on Apprendi grounds.

       A.     Principles of Statutory Interpretation

       Statutory interpretation is a question of law. (Reno v. Baird (1998) 18 Cal.4th

640, 660.) Consequently, appellate courts apply their independent judgment when

interpreting a legislative act. (California Teachers Assn. v. San Diego Community

College Dist. (1981) 28 Cal.3d 692, 699.)

       “Thus, the first step in statutory construction is to examine the statutory language

and give it a plain and commonsense meaning.” (People v. Verduzco (2012) 210

Cal.App.4th 1406, 1414.) In other words, “We must give the statutory provisions at issue

a reasonable and common sense interpretation, consistent with the apparent purpose and

intention of the Legislature. If possible, we will give significance to the plain meaning of

every word, phrase, and sentence of a statute in pursuance of the legislative purpose,

harmonizing the various parts of an enactment by considering each particular clause or

section in the context of the statutory framework as a whole. In this process, we must

take into account the context, object, and history of the legislation, as well as public

policy and contemporaneous construction in our attempt to arrive at a construction that is




       6The trial court appeared to suggest that if defendant was statutorily eligible, the
court would allow further evidence.


                                              7
practical rather than technical in nature. [Citations.]” (In re Rochelle B. (1996) 49

Cal.App.4th 1212, 1216; see also People v. Zambia (2011) 51 Cal.4th 965, 972.)

       “If the meaning of the statute remains unclear after examination of both the

statute’s plain language and its legislative history, then we proceed to the third and final

step of the interpretive process. We apply ‘reason, practicality, and common sense to the

language at hand.’ [Citation.] The words of the statute should be interpreted ‘to make

them workable and reasonable.’ [Citation.]” (People v. Verduzco, supra, 210

Cal.App.4th at p. 1414.)

       B.     The Reform Act

       In approving the Reform Act, the voters found and declared that its purpose was to

prevent the early release of dangerous criminals and relieve prison overcrowding by

allowing low-risk, nonviolent inmates serving life sentences for petty crimes, such as

shoplifting and simple drug possession, to receive twice the normal sentence instead of a

life sentence. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1,

subds. (3), (4) & (5), p. 105; see Historical and Statutory Notes, 49 West’s Ann. Pen.

Code (2014 supp.) foll. § 667, pp. 40-41.) 7 The electorate also approved a mandate that

the Reform Act be liberally construed to effectuate the protection of the health, safety,

and welfare of the People of California. (Voter Information Guide, supra, text of


       7 The People request that we take judicial notice of the Official Voter Information
Guide for the California General Election of November 6, 2012, pages 48-53 and pages
105-110, plus the title page, relating to the Reform Act. We will grant that request
pursuant to Evidence Code sections 452 and 459.


                                              8
Prop. 36, § 7, p. 110.) Accordingly, we liberally construe the provisions of the Reform

Act in order to effectuate its foregoing purposes.

       The Reform Act amended the three strikes statutes (§§ 667, 1170.12) to require

that before a defendant may be sentenced to an indeterminate life term in prison under the

Three Strikes law, the new felony (the commitment offense) must generally qualify as a

serious or violent felony. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(A), (C).)

An exception to this general rule exists, among others, where the prosecution has pled

and proved the defendant used a firearm in the commission of the current offense, was

armed with a firearm or deadly weapon, or intended to cause great bodily injury to

another (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). If the prosecution

pleads and proves this exception exists, the defendant must be sentenced under the Three

Strikes law. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)

       The Reform Act also created a post-conviction release proceeding by adding

section 1170.126. Section 1170.126 applies exclusively to those “persons presently

serving an indeterminate term of imprisonment pursuant to paragraph (2) of

subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,

whose sentence under this act would not have been an indeterminate life sentence.”

(§ 1170.126, subd. (a).) Under section 1170.126, “a prisoner who is serving an

indeterminate life sentence imposed pursuant to the [T]hree [S]trikes 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



                                              9
determines that resentencing would pose an unreasonable risk of danger to public safety.”

(People v. Yearwood, supra, 213 Cal.App.4th at p. 168.)

       Defendant’s current commitment felony offenses of felon in possession of

ammunition and felon in possession of a firearm are not violent felonies within the

meaning of section 667.5, subdivision (c), or serious felonies within the meaning of

section 1192.7, subdivision (c). However, the inquiry does not end with whether or not

the current offenses are a serious or violent felony. As previously noted, an inmate is

eligible for such resentencing if none of his or her commitment offenses constitute

serious or violent felonies and none of the enumerated factors disqualifying a defendant

for resentencing under Proposition 36 apply. (§ 1170.126, subd. (e).)

       Section 1170.126, subdivision (e)(2), provides, as pertinent here, that a defendant

is eligible for resentencing if “[t]he 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.” (§ 1170.126,

subd. (e)(2).) Being armed with a firearm during the commission of a current offense

is listed in section 667, subdivision (e)(2)(C)(iii), and section 1170.12,

subdivision (c)(2)(C)(iii).8 Under the plain language of the armed-with-a-firearm

       8 Section 667, subdivision (e)(2)(C)(iii), provides: “[(e)(2)](C) If 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 subdivision (d), the
defendant shall be sentenced [as a second strike offender] pursuant to paragraph (1) of
                                                                   [footnote continued on next page]


                                              10
exclusion, defendant is ineligible for resentencing relief as a second strike offender if his

life sentence was “imposed” because “[d]uring the commission of the current offense,

[he] . . . was armed with a firearm.” (§§ 667, subd. (e)(2)(C)(iii) & 1170.12,

subd. (c)(2)(C)(iii), both cross-referenced in § 1170.126, subd. (e)(2).)

        C.       “Armed With a Firearm”

        The Reform Act does not define “armed with a firearm.” However, the Penal

Code provides definitions to distinguish between arming and use.9 Section 1203.06,

subdivision (b)(3), defines “armed with a firearm” as “to knowingly carry or have

available for use a firearm as a means of offense or defense.” Section 1203.06,

subdivision (b)(2), currently states “‘used a firearm’ means to display a firearm in a

menacing manner, to intentionally fire it, to intentionally strike or hit a human being with


[footnote continued from previous page]
subdivision (e) unless the prosecution pleads and proves any of the following: [¶] . . . [¶]
(iii) During the commission of the current offense, the defendant used a firearm, [or] was
armed with a firearm . . . .” (Italics added.)
        Section 1170.12, subdivision (c)(2)(C)(iii), provides: “[(c)(2)](C) If 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 felony described in paragraph (1) of
subdivision (b) of this section, the defendant shall be sentenced [as a second strike
offender] pursuant to paragraph (1) of subdivision (c) of this section, unless the
prosecution pleads and proves any of the following: [¶] . . . [¶] (iii) During the
commission of the current offense, the defendant used a firearm, [or] was armed with a
firearm . . . .” (Italics added.)

        9In sections 12022 and 12022.5, the Legislature drew a distinction between
armed with a firearm in the commission of a felony and using a firearm in the
commission of a felony, and it made firearm use subject to more severe penalties.
(People v. Bland (1995) 10 Cal.4th 991, 996-997 (Bland).)



                                             11
it, or to use it in any manner that qualifies under Section 12022.5.”10 (See CALCRIM

No. 3146 [adopts the statutory definition for “use of a firearm”]; People v. Wims (1995)

10 Cal.4th 293, 302 [noting the definition in the standard jury instruction for “use” was

adapted from the statutory definition]; People v. Johnson (1995) 38 Cal.App.4th 1315,

1319 [declaring the statutory definition of gun use in section 1203.06 applicable to

section 12022.5].)

       The lead case construing the language of “armed with a firearm” and addressing

the definition of arming for purposes of former section 12022 is Bland, supra, 10 Cal.4th

991. In Bland, our Supreme Court, contrasting arming with use of a firearm, explained

that former section 12022, which imposed an additional prison term for anyone “armed

with a firearm in the commission” of a felony, applied where “the defendant has the

specified weapon available for use, either offensively or defensively.” (Id. at p. 997.)

The court explained: “[T]he statutory language ‘in the commission of a felony’ mean[s]

any time during and in furtherance of the felony. Therefore . . . [a] sentence enhancement

for being ‘armed’ with an assault weapon applies whenever during the commission of the

underlying felony the defendant had an assault weapon available for use in the

furtherance of that felony. [Citation.]” (Id. at p. 1001, italics omitted.) “[B]y specifying

that the added penalty applies only if the defendant is armed with a firearm ‘in the

       10  Section 12022.5, subdivision (a), provides in pertinent part: “[A]ny person
who personally uses a firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for 3,
4, or 10 years, unless use of a firearm is an element of that offense.”



                                             12
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.” (Bland, at p. 1002.)

       The Supreme Court has subsequently reiterated Bland’s holding that the arming

under section 12022 must have occurred both during the commission of the underlying

crime and have a facilitative nexus to the crime. (In re Tameka C. (2000) 22 Cal.4th 190,

197.) And, most recently, in People v. Pitto (2008) 43 Cal.4th 228, in refusing to

overrule Bland, the court agreed with the defendant’s contention that “Bland appears to

have adopted a ‘facilitative nexus’ test and embraced a ‘purpose and effect’ standard.”

(Id. at p. 239.)

       “The statutory elements of a violation of section 12021, subdivision (a)(1), . . . are

that a person, who has previously been convicted of a felony, had in his or her possession

or under his or her custody or control any firearm.” (People v. Padilla (2002) 98

Cal.App.4th 127, 138, italics added.) Although the crime of possession of a firearm by

a felon may involve the act of personally carrying or being in actual physical possession

of a firearm, as occurred here, such an act is not an essential element of a violation of

section 12021, subdivision (a), because a conviction of this offense may also be based on

a defendant’s constructive possession of a firearm. (See People v. Sifuentes (2011) 195

Cal.App.4th 1410, 1417 (Sifuentes); People v. Mejia (1999) 72 Cal.App.4th 1269, 1272

[defendant need not physically have the weapon on his person; constructive possession

of a firearm “is established by showing a knowing exercise of dominion and control”



                                             13
over it].) “To establish constructive possession, the prosecution must prove a defendant

knowingly exercised a right to control the prohibited item, either directly or through

another person.” (Sifuentes, supra, at p. 1417.) Hence, while the act of being armed

with a firearm—that is, having ready access to a firearm (Bland, supra, 10 Cal.4th at

p. 997)—necessarily requires possession of the firearm, possession of a firearm does not

necessarily require that the possessor be armed with it.

       Defendant argues that he could not be armed with a firearm during the

commission of his possession of that firearm, because one is not “armed” with a firearm

during the commission of possession of that firearm; that the language “during the

commission of the current offense” in the Reform Act requires an additional tethering

offense to trigger that exclusion provision; and that no sentence was ever imposed on him

for being armed with a firearm.

       As the People point out, defendant’s exact arguments were recently rejected by

our colleagues in People v. White (2014) 223 Cal.App.4th 512, 522-524 (White) (review

den. Apr. 30, 2014, S217030 [Fourth Dist., Div. One].) White deemed it appropriate for

the court to look beyond the crime for which defendant had been sentenced to determine

whether the “armed-with-a-firearm” exception to resentencing applied. (Id. at p. 523.)

There, the defendant had been convicted and sentenced as a felon in possession of a

firearm. The court recognized that “possession of a firearm does not necessarily require

that the possessor be armed with it” (id. at p. 524), but affirmed the denial of resentencing

because “the record of conviction establishes that the applicable resentencing eligibility



                                             14
criterion set forth in section 1170.126[, subdivision] (e)(2) is not satisfied, and, thus, [the

defendant] is ineligible for resentencing relief.” (Id. at p. 524.)

       Here, the accusatory pleading charged defendant with possession of ammunition

by a felon and possession of a firearm by a felon by alleging the essential elements of

those offenses. Although the information did not allege that defendant was armed with a

firearm when he committed that offense, and it contained no sentence enhancement

allegation that he was armed with a firearm, the record shows the prosecution’s case was

based on evidence that defendant not only possessed the firearm, but also that he was

armed with the firearm, which was available for immediate use, during his commission

of the current offenses. Specifically, the record demonstrates that defendant not only

had a firearm in his possession or under his custody or control; he also was personally

armed with the firearm because he was carrying it loaded in the pocket of the seatback

directly in front of him—and, thus, had “ready access” (Bland, supra, 10 Cal.4th at

p. 997) to—that firearm. The record of conviction shows that when the officer

searched defendant, defendant had in his pocket a “Speedy Loader” containing six rounds

of .45-caliber ammunition. Defendant also had four other rounds of the same

ammunition in his pocket. Also, the loaded .45-caliber revolver was found directly in

front of defendant’s rear passenger seat. The revolver contained six rounds of the same

ammunition as found in defendant’s pocket.




                                              15
       We reject defendant’s arguments that he could not be armed with a firearm during

the commission of his current possessory offenses or that possessory offenses can never

fall under the armed-with-a-firearm exclusion without another separate, tethering offense.

       Our conclusion is consistent with the purposes of the Reform Act. As noted, the

Reform Act is intended to provide resentencing relief to low-risk, nonviolent inmates

serving life sentences for petty crimes, such as shoplifting and simple drug possession.

(Voter Information Guide, supra, text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105.)

Defendant’s current offenses of being a felon in possession of a firearm and being a felon

in possession of ammunition—when viewed in light of the fact that he was armed with

the firearm during the commission of those offenses—cannot be deemed a petty or minor

crime for purposes of the Reform Act. The Reform Act is also intended to limit

eligibility for resentencing to inmates who have not committed current and prior offenses,

including gun-related felonies. (Voter Information Guide, supra, Analysis by Legislative

Analyst, pp. 49-50.)

       D.     “Plead and Prove” Requirement

       Citing the “plead and prove” language contained in sections 667, subdivision

(e)(2)(C), and 1170.12, subdivision (c)(2)(C) (discussed, post), defendant claims that

“when read in context,” the prosecution was required to have “plead and prove” that he

was armed with a firearm, and since here the prosecution did not plead or prove that he

was armed with a firearm during the commission of the current offenses, the armed-with-

a-firearm exclusion does not apply.



                                             16
       Section 667, subdivision (e)(2)(C), provides in pertinent part that, “[i]f a defendant

has two or more prior serious and/or violent felony convictions . . . and the current

offense is not a serious or violent felony, . . . the defendant shall be sentenced” (italics

added) as a second strike offender “unless the prosecution pleads and proves” (italics

added) any of the four enumerated exceptions or exclusions set forth in clauses (i)

through (iv) of section 667, subdivision (e)(2)(C). (See People v. Superior Court

(Kaulick) 215 Cal.App.4th 1279, 1293 (Kaulick).)

       Section 1170.12, subdivision (c)(2)(C), similarly provides that, “[i]f a defendant

has two or more prior serious and/or violent felony convictions . . . and the current

offense is not a [serious or violent] felony . . . , the defendant shall be sentenced” (italics

added) as a second strike offender “unless the prosecution pleads and proves” (italics

added) any of the four enumerated exceptions or exclusions set forth in clauses (i)

through (iv) of section 1170.12, subdivision (c)(2)(C). (See Kaulick, supra, 215

Cal.App.4th at p. 1293.)

       We reject defendant’s contention that the pleading and proof requirement set forth

in both section 667, subdivision (e)(2)(C), and section 1170.12, subdivision (c)(2)(C), is

incorporated into section 1170.126. Defendant’s reliance on the plead-and-prove

language is unavailing. “Although section 1170.126, subdivision (e)(2), expressly cross-

references clauses (i) to (iii), inclusive of sections 667, subdivision (e)(2)(C), and

1170.12, subdivision (c)(2)(C), nothing in the language of section 1170.126, subdivision

(e)(2), or of any of the other subdivisions of section 1170.126 governing an inmate’s



                                              17
petition for resentencing relief under the Reform Act references the plead-and-prove

language.” (White, supra, 223 Cal.App.4th at pp. 526-527.)

       As the White court noted, defendant’s reference to the pleading and proof

requirement “plainly is a part of only the prospective part of the Reform Act, which

governs the sentencing of a defendant with two or more prior serious and/or violent

felony convictions who has suffered a third felony conviction; it is not a part of section

1170.126, the retrospective part of the Reform Act that governs a petition for

resentencing brought by an inmate already serving a life sentence under the Three Strikes

law.” (White, supra, 223 Cal.App.4th at p. 527, italics in original.) The court in Kaulick

explained: “[T]here are two parts to the [Reform] Act: the first part is prospective only,

reducing the sentence to be imposed in future three strike cases where the third strike is

not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second part is

retrospective, providing similar, but not identical, relief for prisoners already serving

third strike sentences in cases where the third strike was not a serious or violent felony

(Pen. Code, § 1170.126).” (Kaulick, supra, 215 Cal.App.4th at p. 1292.) The Kaulick

court also explained that, “under the prospective part of the [Reform] Act, if the

defendant’s current third strike offense is not serious or violent, and none of four

enumerated exceptions applies, the defendant ‘shall be’ sentenced as if the defendant had

only a single prior strike.” (Id. at p. 1293.)

       We also reject defendant’s assertion that using a disqualifying factor not pled and

proved to the jury would violate his constitutional rights to due process and a jury trial



                                                 18
under Apprendi, supra, 530 U.S. 466 and its progeny. He maintains that he was entitled

to a jury trial to determine whether he was armed with a gun.

       Apprendi states 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, supra, 530 U.S.

466 at p. 490.) Subsequently, in Blakely v. Washington (2004) 542 U.S. 296, the high

court clarified that the “prescribed statutory maximum” for purposes of the right to a jury

trial is not necessarily the maximum penalty provided by statute for the crime; rather, it 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.” (Id. at p. 303, italics omitted.) And in

Alleyne v. United States (2013) __ U.S. __ [133 S.Ct. 2151, 186 L.Ed.2d 314] the same

court declared that a fact which increases the mandatory minimum sentence must

likewise be submitted to a jury, and proved beyond a reasonable doubt. (133 S.Ct. at

p. 2154, 186 L.Ed.2d at p. 321.) Thereafter, the high court in Cunningham v. California

(2007) 549 U.S. 270, explained that, “under the Sixth Amendment, any fact that exposes

a defendant to a greater potential sentence must be found by a jury, not a judge, and

established beyond a reasonable doubt, not merely by a preponderance of the evidence.”

(Id. at p. 281.) Defendant’s reliance on these cases is based upon a contention that

because the finding that defendant was armed with a firearm during the felon in

possession of a firearm offense increased the mandatory minimum term of the




                                             19
resentencing provision from a two strikes sentence to a three strikes sentence, he was

entitled to have a jury determine whether he was armed with or used a gun.

       Defendant misapplies Apprendi and its progeny to resentencing petitions under

section 1170.126. The determinations required under section 1170.126 are not factors

justifying enhancing a defendant’s sentence beyond the statutory maximum. (See

Kaulick, supra, 215 Cal.App.4th at pp. 1302-1304.) “The retrospective part of the

[Reform] 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, such as dangerousness, do not implicate Sixth

Amendment issues. Thus, there is no constitutional requirement that the facts be

established beyond a reasonable doubt.” (Id. at pp. 1304-1305, citing Dillon v. United

States (2010) 560 U.S. 817, 829 (Dillon).)

       The failure of the applicability of these cases here lies in the difference between a

proceeding which would increase a sentence and one which would decrease the sentence.

The resentencing provisions under section 1170.126 are akin to a hearing regarding

“downward sentence modifications due to intervening laws” (Kaulick, supra, 215

Cal.App.4th at p. 1304; see Dillon, supra, 560 U.S. at p. 829), and therefore Apprendi

and the limitations of the Sixth Amendment do not apply to resentencing determinations.

       In sum, we conclude that, where the record establishes the prosecution’s case

was based on the theory a defendant convicted of possession of a firearm by a felon



                                             20
was physically armed with the firearm or had ready access to that firearm during the

commission of that offense, the armed-with-a-firearm exclusion applies and, thus, a

defendant is not entitled to resentencing relief under the Reform Act. We also hold that,

in such a case, a trial court may deny section 1170.126 resentencing relief under the

armed-with-a-firearm exclusion even if the accusatory pleading did not allege he or she

was armed with a firearm during the commission of that possession offense.

       Accordingly, we will affirm the order denying defendant’s petition for a recall of

his life sentence and for resentencing as a second strike offender under the Reform Act.11

                                            III

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                        P. J.
We concur:



KING
                          J.



MILLER
                          J.


       11 Because we find defendant was ineligible for resentencing relief, we need not
address defendant’s remaining contentions.


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