Filed 6/20/16 P. v. Wilson CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                 2d Crim. No. B267916
                                                                          (Super. Ct. No. MA050053)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

DENNIS E. WILSON,

     Defendant and Appellant.



                   Dennis E. Wilson appeals the trial court's order finding him ineligible for
resentencing under Proposition 36 because he was "armed" during the commission of the
crime that underlies his "Third Strike" sentence of 25 years to life. We affirm.
                            FACTS AND PROCEDURAL BACKGROUND
                   In People v. Wilson (May 24, 2012, B234935 [nonpub. opn.]), we affirmed
appellant's current conviction and described his offense as follows:
                   "At about 12:20 a.m. on August 12, 2010, Los Angeles County Deputy
Sheriff Wesley Guthrie was on patrol in Lancaster when he heard loud music emanating
from appellant's vehicle. The music was also heard by Deputy [Taylor] Slimak, who was
on patrol in a separate car. Deputy Slimak conducted a traffic stop of appellant for a
violation of Vehicle Code section 27007 [fn. omitted], and Deputy Guthrie acted as his
backup. Deputy Guthrie positioned himself to the right of appellant's vehicle while
Deputy Slimak approached the driver's door.
              "After Deputy Slimak spoke to appellant for approximately one minute, he
directed him to exit his vehicle. Appellant was frisked for weapons near the hood of the
deputy's patrol car, then placed in the back seat of the patrol car. In the meantime,
Deputy Guthrie went to close the open driver's seat door to appellant's vehicle to prevent
it from being hit by oncoming traffic. As the deputy was about to close the door, he saw
a handgun in plain view between the driver's seat and center console.
              "Deputy Guthrie summoned Deputy Slimak, who also saw the gun in plain
view. Deputy Guthrie seized the gun, which had a live round of ammunition in the
chamber and was set to be fired. Appellant was placed under arrest and given the
Miranda advisements. When Deputy Slimak asked appellant if he understood, appellant
looked at the deputy, made a blowing air noise, and rolled his eyes. Appellant proceeded
to tell the deputy that the gun was not meant 'for any law enforcement officers that night.'
Appellant said he had driven to Los Angeles to retrieve the gun after someone shot at him
earlier that day just up the street. He also said the deputies had pulled him over while he
was returning to look for the person who shot at him." (Slip opn., at p. 2.)
              In June 2011, a jury convicted appellant of possession of a firearm by a
felon (Former Pen. Code, § 12021, subd. (a)(1)).1 The trial court found true allegations
that appellant had suffered two prior convictions within the meaning of the Three Strikes
Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced appellant
to a term of 25 years to life.
              In December 2012, appellant filed a petition for recall of sentence pursuant
to section 1170.126. The trial court issued an order to show cause directing the People to
demonstrate why such relief should not be granted. After reviewing the parties' briefing,
the court denied appellant's petition. The court found that appellant was ineligible for




              1
                  All further statutory references are to the Penal Code.
                                               2
recall and resentencing under Proposition 36 because he was armed with a firearm during
the commission of the offense.
                                       DISCUSSION
              Proposition 36 amended the Three Strikes Law to provide that a sentence of
25 years to life shall be imposed only if the current offense is a serious or violent felony
or the prosecution pleads and proves an enumerated qualifying exception. (§§ 667, subd.
(e)(2)(C), 1170.12, subd. (c)(2)(C); People v. Yearwood (2013) 213 Cal.App.4th 161,
170; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285-1286.) It
"also added section 1170.126 which creates a postconviction release proceeding 'intended
to apply exclusively to 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).)" (Yearwood, at p. 170.)
              Section 1170.126 provides that an offender serving a Three Strikes
sentence may be eligible for resentencing where the current felony conviction is not for a
serious or violent felony. (People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at
p. 1293.) If the statutory eligibility criteria are satisfied and none of the exclusions apply,
the trial court determines whether imposition of a Two Strikes determinate term would
pose an unreasonable risk of danger to public safety, and resentences the offender
accordingly. (§ 1170.126, subd. (f); Kaulick, at p. 1293.)
              An offender is statutorily ineligible for resentencing under Proposition 36
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), 1170.126,
subd. (e)(2).) Appellant argues that the trial court erred in finding him ineligible for
resentencing on the ground that he was "armed" while committing the crime of being a
felon in possession of a firearm. We are not persuaded.
              A person is "[a]rmed with a firearm" when he or she "ha[s] a firearm
available for use, either offensively or defensively. (E.g., § 1203.06, subd. (b)(3).)"

                                               3
(People v. Osuna (2014) 225 Cal.App.4th 1020, 1029 (Osuna); People v. Brimmer (2014)
230 Cal.App.4th 782, 795 (Brimmer); People v. Bland (1995) 10 Cal.4th 991, 997 ["[i]t is
the availability―the ready access―of the weapon that constitutes arming"].) In
assessing eligibility for resentencing under Proposition 36, we look to the record of
conviction, which includes the facts recited in any prior appellate decisions. (Osuna, at p.
1030; People v. Hicks (2014) 231 Cal.App.4th 275, 286 (Hicks).) The facts we recited
above are drawn from our prior appellate decision, and they unequivocally confirm that
appellant was "armed with a firearm" when he was stopped for a motor vehicle violation.
Several appellate decisions have reached the same conclusion on similar facts. (E.g.,
Brimmer, at p. 797 ["Where, as here, the record shows that a defendant convicted of
possession of a firearm was armed with the firearm during the commission of that
offense, the armed with a firearm exclusion applies and the defendant is not entitled to
resentencing relief under the Act]; Osuna, at pp. 1032 [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]; Hicks, at pp. 285-286; People v. White (2014) 223
Cal.App.4th 512, 523, 527; People v. Blakely (2014) 225 Cal.App.4th 1042, 1052; People
v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314 (Elder); see also People v. Caraballo
(2016) 246 Cal.App.4th 936, 941, review filed May 23, 2016 [inmate who was
"vicariously armed" with a firearm during commission of the current offense is
disqualified from resentencing].)
              Notwithstanding these authorities, appellant argues that his conduct in
being "armed" with the firearm must be "tethered" to another crime, and that this other
offense cannot be the crime of being a felon in possession. This argument is based on an
analogy to cases interpreting the sentencing enhancement applicable when a person "is
armed with a firearm in the commission of a felony . . . ." (§ 12022, subd. (a)(1).) This
enhancement applies only "if the gun has a facilitative nexus with the underlying offense
(i.e., it serves some purpose in connection with it) . . . ." (Brimmer, supra, 230
Cal.App.4th at pp. 794-795; Hicks, supra, 231 Cal.App.4th at p. 283.) Because "[h]aving
a gun available does not further or aid in the commission of the crime of possession of a

                                              4
firearm by a felon" (Hicks, at p. 283), courts cannot impose the "armed" enhancement to
a felon-in-possession crime unless there is some further crime to which the arming can be
"tethered" (ibid.).
               This analogy is inapplicable here because the plain text of Proposition 36
turns on whether "the defendant . . . was armed" "[d]uring the commission of the current
offense" (§§ 1170.12, subd. (c)(2)(C)(iii), 667, subd. (e)(2)(C)(iii) & 1170.126, subd.
(e)(2))―not, as with the sentencing enhancement, "in [its] commission" (§ 12022, subd.
(a)(1)). As explained in Osuna, supra, 225 Cal.App.4th 1029, this difference in language
is significant. Because Proposition 36 looks to whether the defendant was armed
"during" the crime rather than "in the commission" of it, the Proposition "requires a
temporal nexus between the arming and the underlying felony, not a facilitative one."
(Osuna, at p. 1032; Hicks, supra, 231 Cal.App.4th at pp. 283-284; see Elder, supra, 227
Cal.App.4th at pp. 1312-1313 [noting "illogic" of conflating enhancement provision with
Proposition 36's ineligibility provision].) The temporal nexus is present here, and that is
sufficient to render appellant ineligible for relief under Proposition 36.
               In addition, appellant contends that the crime of possessing a firearm does
not pose the same level of threat as other crimes that categorically render a defendant
ineligible for relief under Proposition 36 and, as a result, declaring him ineligible is
inconsistent with the voters' intent. As noted above, this argument incorrectly conflates
"possession" of a firearm with being "armed." Appellant's "current offense[] of felon in
possession of a firearm . . .―when viewed in light of the fact that he was physically
armed with the firearm during the commission of th[at] offense[]―cannot be deemed a
petty or minor crime for purposes of" Proposition 36. (Brimmer, supra, 230 Cal.App.4th
at p. 799.) That is because "'[t]he threat presented by a firearm increases in direct
proportion to its accessibility. Obviously, a firearm that is available for use as a weapon
creates the very real danger it will be used.'" (Blakely, supra, 225 Cal.App.4th at p. 1057,
quoting People v. Mendival (1992) 2 Cal.App.4th 562, 573.) Indeed, appellant's purpose
in placing the gun in the car was "to look for the person who shot at him" earlier that day.


                                              5
(Ante, at p. 2, slip opn., at p. 2.) For these reasons, we conclude our construction of
Proposition 36 is consistent with the voters' intent.
                                       DISPOSITION
              The judgment (order denying relief under Proposition 36) is affirmed.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                              6
                                William C. Ryan, Judge

                        Superior Court County of Los Angeles
                        ______________________________

             California Appellate Project, Jonathan B. Steiner and Jill Ishida, 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, Senior Assistant Attorney General, Noah P. Hill and
Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
