Filed 5/27/16 P. v. Lerma CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B263789

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. PA031007)
         v.

GILBERT LERMA,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, William
C. Ryan, Judge. Affirmed.
         Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.



                                        _________________________
       Gilbert Lerma appeals from the trial court order denying his petition for
resentencing under the Three Strikes Reform Act of 2012 (hereafter, Proposition 36 or
the Act). The Act amended Penal Code1 sections 667 and 1170.12 (the Three Strikes
law) to reduce the punishment for some third strike offenses that are neither serious nor
violent. The Act also added section 1170.126 to create a procedure by which some
inmates already serving third strike sentences may seek resentencing in accordance with
the new sentencing rules.
       Lerma was convicted by a jury in 1999 of being a felon in possession of a firearm
(former § 12021, subd. (a)2), for which he received a Three Strikes sentence of 25 years
to life. In 2013, he filed a petition for recall of his Three Strikes sentence pursuant to
section 1170.126. The trial court denied the petition on the ground that Lerma had been
armed with a firearm during the commission of his offense within the meaning of
sections 667, subd. (e)(2)(C)(iii), and 1170.12, subd. (c)(2)(C)(iii), which disqualified
him from resentencing consideration.
       We will affirm this ruling.
                                      BACKGROUND
       In our 2000 decision affirming Lerma’s conviction (People v. Lerma (Aug. 30,
2000, B134827) [nonpub. opn.]), we reported that the trial evidence established the
following facts. On August 29, 1998, Los Angeles Police Officer Fernando Delatorre
and his partner responded to the El Chaparral Restaurant in Sylmar to investigate a report
that someone had a gun. Delatorre testified that when the officers arrived, Delatorre
searched the restaurant parking lot and noticed Lerma making motions with his hands as



1
       All further statutory references are to the Penal Code unless otherwise stated.
2
       The Deadly Weapons Recodification Act of 2010 repealed and recodified former
sections 12000 to 12809 without substantive change. (§§ 16000, 16005, 16010.) Former
section 12021, subdivision (a), was recodified without substantive change at section
29800, subdivision (a) operative January 1, 2012. (Cal. Law Revision Com. com.,
14 Deering’s Ann. Pen. Code (2012 ed.) foll. § 29800, p. 921.)

                                              2
if he were “chambering a round in a semiautomatic weapon.”3 When Delatorre drew his
own gun and ordered Lerma to show his hands, Lerma scooted over toward a light pillar,
put his hands behind the pillar where Delatorre could not see them, and “continued that
motion of chambering a round.” Lerma then made a throwing motion toward his left.
       After Lerma finally complied with orders to get on the ground, Delatorre searched
the area where he had seen Lerma make the throwing motion and found Lerma’s shirt,
and next to it a small .22 caliber semiautomatic handgun. The gun had jammed because
there was a bullet stuck in the firing mechanism. The proper way to clear such a jam was
to work the gun’s slide back and forth to try to free the stuck bullet. Lerma told
Delatorre, “It’s not my gun. It’s my friend’s gun. I can’t tell you who he is because I
don’t rat out my friends.”
       On January 25, 2013, after Proposition 36 was enacted, Lerma sought
resentencing. On March 7, 2013, the superior court (Judge William C. Ryan) issued an
order to show cause, and denied Lerma’s petition to recall his sentence on April 23, 2015,
on the ground that he was “ineligible [for resentencing because] he was armed with a
firearm during the commitment offense.” Lerma filed a timely notice of appeal.
                                      DISCUSSION
       1. The Act.
       People v. Johnson (2015) 61 Cal.4th 674 (Johnson), summarized the Act’s
purpose and provisions as follows:
       “Prior to its amendment by the Act, the Three Strikes law required that a
defendant who had two or more prior convictions of violent or serious felonies receive a
third strike sentence of a minimum of 25 years to life for any current felony conviction,
even if the current offense was neither serious nor violent. (Former §§ 667, subds. (d),




3
      According to Delatorre, “you chamber a round by cocking the top [of the weapon]
rearward” which allows a cartridge to come up and be slid into position to fire.

                                             3
(e)(2)(A), 1170.12, subds. (b), (c)(2)(A).)[4] The [prospective portions of the] Act[5]
amended the Three Strikes law with respect to defendants whose current conviction is for
a felony that is neither serious nor violent. In that circumstance, unless an exception
applies, the defendant is to receive a second strike sentence of twice the term otherwise
provided for the current felony, pursuant to the provisions that apply when a defendant
has one prior conviction for a serious or violent felony. (§§ 667, subd. (e)(2)(C),
1170.12, subd. (c)(2)(C); see §§ 667.5, subd. (c) [list of violent felonies], 1192.7 [list of
serious felonies], 1192.8 [additional serious felonies for purposes of § 1192.7].)
       “The Act’s exceptions to the new sentencing provisions relate to a defendant’s
current offense and prior offenses. If the current offense involves controlled substances
and specified findings are made concerning the quantity of controlled substances
involved, or if the current offense is among specified sex offenses, a defendant with two
or more strikes must be sentenced to a term of at least 25 years to life. [Fn. omitted.]
(§§ 667, subd. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) A third strike sentence is
also required if, ‘[d]uring the commission of the current offense, the defendant used a
firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily
injury to another person.’ (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
Finally, a defendant will be excluded from the new sentencing provisions if he or
she suffered a prior conviction for . . . [certain offenses listed in § 667, subd. (e)(2)(C)(iv)
and § 1170.12, subd. (c)(2)(C)(iv) which are sometimes referred to as] ‘super strikes.’
[Citation, fn. omitted.]
       “In addition to reducing the sentence to be imposed for some third strike felonies
that are neither violent nor serious, the Act provides a procedure by which some prisoners

4
       “The Three Strikes law was enacted twice in 1994, first by the Legislature (§ 667,
subds. (b)-(i); Stats. 1994, ch. 12, § 1, p. 71), and thereafter by the voters by way of
Proposition 184 (§ 1170.12; [citation]).” (Johnson, supra, 61 Cal.4th at p. 681, fn. 1.)
5
       The prospective provisions of the Act (§§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C)) apply to individuals whose “current” offense is committed after the
effective date of the Act.

                                               4
already serving third strike sentences may seek resentencing in accordance with the new
sentencing rules. (§ 1170.126.) ‘An inmate is eligible for resentencing if . . . [¶] . . . [t]he
inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the
Three Strikes law] for a conviction of a felony or felonies that are not defined as serious
and/or violent . . . .’ (§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced
under the new provisions, an inmate is disqualified from resentencing if any of the
exceptions set forth in section 667, subdivision (e)(2)(C) and section 1170.12,
subdivision (c)(2)(C) are present. (§ 1170.126, subd. (e).) In contrast to the rules that
apply to sentencing, however, the rules governing resentencing provide that an inmate
will be denied recall of his or her sentence if ‘the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.’
(§ 1170.126, subd. (f).)” (Johnson, supra, 61 Cal.4th at pp. 680-682.)
       2. The trial court correctly ruled that Lerma was ineligible for resentencing.
       Lerma’s ineligibility for resentencing depends on whether, during his violation of
former section 12021 for possessing a firearm, he was also armed with a firearm. (See
§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
       “ ‘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.’ [Citation.] 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 . . . such an act is not an essential element
of a violation of former section 12021, subdivision (a), because a conviction of this
offense may also be based on a defendant’s constructive possession of a firearm.
[Citations.] ‘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.’ [Citation.] Hence, while the act of being armed with a firearm
– that is, having ready access to a firearm [citation] – necessarily requires possession of
the firearm, possession of a firearm does not necessarily require that the possessor be
armed with it.” (People v. Brimmer (2014) 230 Cal.App.4th 782, 795.)

                                               5
       “[A]rming under the sentence enhancement statutes 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.
[Citations.] As a recent Court of Appeal decision observed, ‘a firearm that is available
for use as a weapon creates the very real danger it will be used.’ [Citation.] Therefore,
‘[i]t is the availability – the ready access – of the weapon that constitutes arming.’
[Citation.]” (People v. Bland (1995) 10 Cal.4th 991, 997, italics omitted (Bland).)
       As a result of these principles, “not every commitment offense for unlawful
possession of a gun necessarily involves being armed with the gun, if the gun is not
otherwise available for immediate use in connection with its possession, e.g., where it is
under a defendant’s dominion and control in a location not readily accessible to him at
the time of its discovery.” (People v. Elder (2014) 227 Cal.App.4th 1308, 1313-1314.)
“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.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1030,
fn. omitted.)
       Numerous cases have concluded that, under Proposition 36, a conviction for being
a felon in possession of a firearm disqualifies an inmate from resentencing if the nature of
that possession amounted to arming as defined in Bland. (See, e.g., People v. White
(2014) 223 Cal.App.4th 512, 525-526 [defendant who tossed away handgun while
running from police found to be armed with a firearm and, thus, not eligible for
resentencing]; People v. Hicks (2014) 231 Cal.App.4th 275, 280, 284 [where defendant
was detained at front gate of apartment complex and a gun was found inside his backpack
in apartment he had been visiting, defendant was held to be armed and, thus, not eligible
for resentencing]; People v. Brimmer, supra, 230 Cal.App.4th at pp. 796-797 [defendant

                                              6
who threatened his girlfriend with shotgun during argument was found to be armed and
not entitled to resentencing]; People v. Elder, supra, 227 Cal.App.4th at p. 1317 [police
found defendant outside his apartment and – inside – found a gun on cabinet shelf and a
second gun in bedroom safe; defendant was found to be armed with a firearm and thus
ineligible for resentencing].)
       Hence, to be ineligible for resentencing, there need not be a facilitative nexus (or
what Lerma refers to as a “tethering offense”) 6 between an inmate’s “current offense”
(here, being a felon in possession of a firearm) and the disqualifying factor of “being
armed during the commission of that offense.” “[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 ‘[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. (1993) p. 703.) Thus, there must be a temporal nexus between the arming
and the underlying felony, not a facilitative one. The two are not the same. [Citation.]”


6
        For enhancement purposes, “a defendant is armed if the gun has a facilitative
nexus with the underlying offense (i.e., it serves some purpose in connection with it).”
(People v. Brimmer, supra, 230 Cal.App.4th at pp. 794-795.) This concept of
“facilitative nexus” was explained by Bland, supra, 10 Cal.4th at p. 1002: “[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
[for instance], 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.”

                                              7
(People v. Hicks, supra, 231 Cal.App.4th at pp. 283-284, italics added; accord People v.
Brimmer, supra, 230 Cal.App.4th at pp. 798-799; People v. Osuna, supra,
225 Cal.App.4th at p. 1032.)
       Here, the only evidence supporting Lerma’s conviction for violating section 12021
was Delatorre’s testimony that he saw Lerma apparently trying to chamber a round in a
semi-automatic firearm; Lerma made a throwing motion; from the area toward which
Lerma had made the throwing motion, Delatorre and his partner discovered a semi-
automatic handgun with bullets jammed in its mechanism; and Lerma told Delatorre that
the gun belonged to a friend of his but he would not reveal the friend’s name. Lerma
could not have been convicted without the jury’s belief, beyond a reasonable doubt, that
the object Lerma was seen holding and then throwing was the subsequently recovered
semi-automatic handgun and, therefore, that Lerma had been in actual possession of the
gun. Hence, it is clear that Lerma’s felon-in-possession conviction was based on the
jury’s implicit conclusion that “he had a firearm capable for ready use, during the
commission of that offense, [therefore] the armed-with-a-firearm exclusion applies and,
thus, [Lerma] is not entitled to resentencing relief under the Act.” (People v. Brimmer,
supra, 230 Cal.App.4th at p. 805, italic added.) Because there was a temporal nexus
between the arming and the underlying felony of being a felon in possession of a firearm,
the trial court properly ruled that Lerma was ineligible for resentencing under
Proposition 36.




                                             8
                                     DISPOSITION

      The post-judgment order denying Lerma’s petition and declaring him ineligible for
resentencing is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.


We concur:




                    ALDRICH, J.




                    HOGUE, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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