Filed 7/20/16 P. v. Carter 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B266923
                                                                           (Super. Ct. No. TA047948)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

JERMAINE PAUL CARTER,

     Defendant and Appellant.



                   Jermaine Paul Carter appeals from an order denying his Penal Code section
1170.126 petition for resentencing under Proposition 36.1 In 1998 appellant was
convicted by a jury of possession of a firearm by a felon (hereafter “the current offense”).
(Former § 12021, subd. (a)(1) repealed and reenacted as section 29800, subd. (a)(1),
Stats. 2010 ch. 711, § 6.) Because appellant had two prior serious or violent felony
convictions within the meaning of California’s “Three Strikes” law, he was sentenced to
prison for 25 years to life. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
                   Appellant sought resentencing under Proposition 36 because the current
offense is neither a violent nor serious felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).)
The trial court concluded that defendant was ineligible for resentencing because he had
been armed with a firearm during the commission of the current offense. We affirm.


1
     All statutory references are to the Penal Code unless otherwise stated.
                                           Facts
              Appellant appealed from his 1998 conviction of the current offense. In an
unpublished opinion, we affirmed the judgment. (People v. Carter (Apr. 4, 2000,
B127887).) In determining whether appellant was armed with a firearm during the
commission of the current offense, the trial court could lawfully consider the entire
record of conviction, including our opinion affirming the judgment. (People v. Hicks
(2015) 231 Cal.App.4th 275, 285-286; People v. Osuna (2014) 225 Cal.App 4th 1020,
1030.) Our opinion summarized the facts as follows:
              “Los Angeles County Sheriff’s Deputies Richard Westin and Susan Gomez
were patrolling the East Compton area one evening. They heard loud music coming from
the trunk of a parked Cadillac surrounded by a group of people. They decided to stop and
warn the group about the noise level.
              “As the deputies approached in their patrol car, they noticed appellant
standing near the open trunk of the Cadillac. He closed the trunk, walked to the open
front passenger window, and leaned inside. The deputies saw him pull a gun from his
waistband and place it inside as he simultaneously turned down the volume of the music.
Appellant then walked back to the rear of the Cadillac.
              “The deputies detained the individuals near the Cadillac. These included
appellant’s brother, his fiancé and a mechanic who was working on the car. Deputy
Gomez patted down the men for weapons and did not find any. She asked if any of them
were on parole and appellant said he was. Deputy Westin then searched the Cadillac and
recovered a loaded nine-millimeter, semi-automatic pistol from the passenger side
floorboard. Appellant was handcuffed and placed under arrest.
              “After he had been advised of his Miranda rights, appellant stated that he
had the gun for protection because he was a Blood in a Crips neighborhood. [Footnote
omitted.] Both deputies were familiar with the area where appellant was arrested and
knew that it was controlled by the Crips street gang. Neither officer knew appellant or
had any contacts with him before his arrest.



                                               2
               “The defense theory of the case was that Deputy Westin had planted the
gun after discovering appellant was on parole. Appellant testified that he did not have a
gun that night, had not placed a gun in the car, and had never admitted possession of a
weapon to the deputies. Appellant’s brother and the mechanic who was working on the
Cadillac testified that they did not see appellant walk to the front passenger window after
the patrol car approached them. The defense also presented evidence that Deputy Westin
had been accused during the previous year of falsely arresting a suspect for possessing a
weapon.”
               The record on appeal includes testimony from the jury trial. Appellant and
his brother, Juan Carter, testified that appellant owned the Cadillac and had driven it to
East Compton. Juan was the sole passenger in the vehicle. Deputy Westin testified that
the firearm was on the front floorboard of the Cadillac “just in front of the passenger’s
. . . seat cushion.” It was “partially concealed under the seat, but with the butt portion
still sticking out.”
                                      Proposition 36
               “ ‘ On November 6, 2012, the voters approved Proposition 36, the Three
Strikes Reform Act of 2012 [hereafter “the Act”], which amended . . . sections 667 and
1170.12 and added . . . section 1170.126 . . . . 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 . . . 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.)’
[Citation.]” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1048, fn. omitted.)

                                             3
                       Armed-with-a-Firearm Exclusion from the Act
              A prisoner is disqualified from postconviction relief under the Act if he was
armed with a firearm during the commission of the offense for which he received a third-
strike sentence. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd.
(c)(2)(C)(iii).) “[T]he 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.” (People v.
Osuna, supra, 225 Cal.App.4th at p. 1029.) “The California Supreme Court has
explained that ‘ “[i]t is the availability - the ready access - of the weapon that constitutes
arming.” ’ [Citation.]” (People v. White (2014) 223 Cal.App.4th 512, 524.)
              “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 section 12021(a) because a conviction of
this offense also may 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.] [¶] Thus, 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. For example, a convicted felon may be found to be a felon in
possession of a firearm if he or she knowingly kept a firearm in a locked offsite storage
unit even though he or she had no ready access to the firearm and, thus, was not armed
with it.” (People v. White, supra, 223 Cal.App.4th at p. 524.)
              Appellant claims that, to be disqualified from relief under the Act, his
conviction of the current offense must have been based on conduct that constituted being
armed with a firearm. “[A]s the evidence was conflicting as to whether [he] actually had
the gun on his person and put it in the car, as opposed to only having constructive
possession of it because it was in his car, . . . the record of conviction does not indicate
that the ‘conviction’ was based upon conduct th[at] constituted arming.” “Only those
facts that must have been found by the trier of fact in order to support the conviction . . .

                                               4
can be assumed.” “[T]he record of conviction is not ‘evidence’ from which the court can
make new findings of unadjudicated facts.”
              We disagree. The issue before the trial court was not, as appellant alleges,
whether his conviction “was based upon conduct th[at] constituted arming.” The issue
was whether facts in the record of conviction show that he was armed. “[W]here . . . the
record [of conviction] establishes that a defendant convicted under the pre-Proposition 36
version of the Three Strikes law as a third strike offender of possession of a firearm by a
felon 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 Reform Act.” (People v. White, supra, 223 Cal.App.4th at p. 519.)
              That the evidence was conflicting is of no consequence. “Conflicting
evidence . . . does not cast doubt on the trial court’s factual findings because we review
factual findings for substantial evidence. [Citation.] Here, there was substantial evidence
that [appellant] was armed [with a firearm] . . . .” (People v. Hicks, supra, 231
Cal.App.4th 275, 286.)
              Even if the Act had required appellant’s conviction to be based on conduct
that constituted being armed with a firearm, the requirement would have been met. The
jury indisputably found that appellant, the driver of the Cadillac, had possessed the
firearm found on the front-passenger-side floorboard. Pursuant to the People’s evidence,
appellant had ready access to the firearm because it was in his waistband before he placed
it inside the Cadillac. Pursuant to the defense evidence, appellant also had ready access
to the firearm while he was driving the Cadillac to East Compton because it was within
his immediate reach. This is not the case where “a convicted felon may be found to be a
felon in possession of a firearm if he or she knowingly kept a firearm in a locked offsite
storage unit . . . .” (People v. White, supra, 223 Cal.App.4th at p. 524.) 2

2
    On June 8, 2016, appellant filed a request to judicially notice the appellate record
pertaining to our 2000 unpublished opinion, People v. Carter, supra, B127887. The
purpose of the request is to show that the jury was instructed on constructive possession.
We deny the request because, as explained above, whether the jury was so instructed is
irrelevant to the issues in the instant appeal.
                                              5
              The “immediate reach” theory is supported by People v. Hunt (1963) 221
Cal.App.2d 224.) There, the defendant was convicted of possession of a firearm by a
felon. After stopping the vehicle that the defendant had been driving, the police saw the
firearm “on the floor in front of the [front] seat occupied” by defendant’s passenger. In
concluding that the evidence was sufficient to support the defendant’s conviction, the
court noted “that the gun was in a car owned and being driven by him” and “that the gun
was within his immediate reach and was readily accessible to him . . . .” (Id., at p. 225,
italics added.)
              Appellant argues “that the language [of the Act] shows that the arming was
meant to be attached to another offense and not be the mere commission of the [current]
offense itself, and that the arming must have a facilitative nexus to the [current] offense
. . . .” We agree with decisions that have rejected the identical argument. (See People v.
Hicks, supra, 231 Cal.App.4th at p. 284 [“there must be a temporal nexus between the
arming and the underlying felony, not a facilitative one”]; People v. Brimmer (2014) 230
Cal.App.4th 782, 797 [court rejected defendant’s claim that firearm “possessory offenses
can never fall under the armed with a firearm exclusion, because one cannot use, or be
armed with a firearm ‘during the commission’ of such offenses without another separate
or tethering offense”]; People v. Osuna, supra, 225 Cal.App.4th at pp. 1030-1032.)
                                     Standard of Proof
              Finally, appellant asserts that the trial court applied the wrong standard of
proof. When the trial court made its ruling, it was bound by the following holding in
People v. Osuna, supra, 225 Cal.App.4th at p. 1040: “Because a determination of
eligibility under section 1170.126 does not implicate the Sixth Amendment, a trial court
need only find the existence of a disqualifying factor by a preponderance of the evidence.
[Citations.]” The trial court did not indicate the standard of proof it was applying. But a
“trial court is presumed to know and follow the law. [Citation.]” (People v. Castaneda
(1975) 52 Cal.App.3d 334, 342.) Thus, we presume that the trial court followed the
Osuna holding and applied the preponderance of the evidence standard. (Auto Equity



                                              6
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Courts exercising inferior
jurisdiction must accept the law declared by courts of superior jurisdiction”].)
              Based on the recent case of People v. Arevalo (2016) 244 Cal.App.4th 836,
appellant argues that the trial court should have applied the beyond a reasonable doubt
standard. In Arevalo the current offenses were grand theft auto and driving a vehicle
without the owner’s consent. “The trial judge . . . acquitted Arevalo of the charge of
possession of a firearm by a felon and found the ‘armed with a firearm’ allegation to be
not true. [¶] Arevalo subsequently petitioned for a reduction of his sentence pursuant to
Proposition 36, arguing that in light of his acquittal and the not-true enhancement finding,
he was eligible for resentencing because he had not committed the disqualifying conduct
of being armed with a weapon during the commission of his ‘current offense.’
[Citations.]” (Id., at p. 841, fn. omitted.) “Reaching its findings under a preponderance
of the evidence standard, the resentencing court concluded that Arevalo had been armed
with a weapon during the commission of his offenses. Accordingly, it held that Arevalo
was ineligible for resentencing under section 1170.126.” (Id., at pp. 841-842.)
              The Arevalo court observed that Osuna had held that the preponderance of
the evidence standard applies “to resentencing eligibility determinations under
Proposition 36.” (People v. Arevalo, supra, 244 Cal.App.4th at p. 848.) But “Osuna
itself acknowledged that using a preponderance of the evidence standard to determine . . .
eligibility might ‘allow a trial court to find arming, so as to disqualify an inmate from
resentencing under the Act, even if an arming enhancement was pled but found not true
by a jury.’ [Citation.] That hypothetical situation is almost exactly what happened in the
case at bar. . . . [W]e conclude this situation requires a heightened standard of proof for
making section 1170.126, subdivision (f), resentencing eligibility determinations.” (Id.,
at p. 849, italics added.) “[T]he heightened standard of proof should be beyond a
reasonable doubt.” (Id., at p. 853.)
              Unlike Arevalo, here the trier of fact did not acquit appellant of the charge
of possession of a firearm by a felon and find an “armed with a firearm” allegation not



                                              7
true. Thus, the trial court properly applied the preponderance of the evidence standard in
determining appellant’s eligibility for resentencing under section 1170.126.
                                       Disposition
             The order denying appellant’s section 1170.126 petition for resentencing is
affirmed.
             NOT TO BE PUBLISHED.



                                                       YEGAN, J.


We concur:


             GILBERT, P. J.


             PERREN, J.




                                            8
                                  William C. Ryan, Judge

                          Superior Court County of Los Angeles

                             ______________________________


              Suzan E. Hier, 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, Victoria B. Wilson, Supervising
Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.
