Filed 4/25/16 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F070707
    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.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Franson, J.
                                     INTRODUCTION
       Appellant Anthony Lamont Smith was sentenced in 1995 to a term of 25 years to
life, after suffering a third strike conviction for being a felon in possession of a firearm.
In 2013, he petitioned for resentencing pursuant to Penal Code1 section 1170.126. After
the trial court denied the petition on the grounds he was statutorily ineligible, Smith
appealed. In case No. F067404, this court reversed and remanded, holding that the trial
court should examine the record of conviction to determine if Smith actually had the
weapon he was convicted of possessing “available for offensive or defensive use.” After
remand, the trial court found that Smith had actual possession of the weapon for
offensive or defensive purposes and denied the petition for resentencing. We affirm.
                     FACTUAL AND PROCEDURAL SUMMARY
       On December 11, 1994, two 17-year-old males boarded a bus and sat in the back.
Smith and Jimmie Smith sat facing the two young men. Smith pulled out a chrome
handgun and handed it to Jimmie. Jimmie used the handgun to rob the two young men of
money and jewelry.
       The next day, Smith and Jimmie were arrested at Smith’s apartment, along with a
16-year-old female runaway and a male juvenile parolee. The young female was in
possession of a piece of jewelry taken from one of the 17-year-olds in the robbery the day
before. She also was in possession of a .25-caliber handgun that fit the description of the
gun used in the robbery on the bus, as well as an Uzi.
       The young female stated that just before officers arrived at the apartment, Smith
had received a phone call. When he hung up, Smith and Jimmie put the guns under her
clothing and told her to sit down while officers searched the apartment.




1      References to code sections are to the Penal Code unless otherwise specified.


                                              2.
       On April 3, 1995, Smith was convicted of being a felon in possession of a firearm,
a violation of section 12021, subdivision (a). The trial court sentenced Smith to 25 years
to life because he had two prior strike convictions.
       On April 10, 2013, Smith filed a petition to recall his sentence and for
resentencing, pursuant to section 1170.126. On May 16, 2013, the trial court determined
that Smith was statutorily ineligible for resentencing on the grounds Smith had been
convicted of a gun-related offense.
       Smith appealed the denial of his petition for resentencing on June 3, 2013. The
appeal was assigned case number F067404. On April 24, 2014, this court issued our
decision in case number F067404, in which we reversed the trial court’s order denying
the petition. In our unpublished opinion we stated:

               “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


                                             3.
       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 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. [¶] … [¶]

              “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. Rather, the record of conviction
       must establish arming or one of the other disqualifying factors.”
       We remanded the matter for the trial court to determine whether Smith was
“armed with a firearm” during the commission of the offense of felon in possession of a
firearm, or in other words, if Smith had the firearm available for use, either defensively or
offensively.
       The trial court held a hearing after remand on December 18, 2014. During the
hearing, the trial court considered the facts of the underlying offense and heard argument
from counsel. At the conclusion of the hearing, the trial court denied the petition for
resentencing finding that the evidence showed Smith “had actual possession of a firearm,
that is, immediate access to the firearm for offensive or defensive purposes.”
       On December 23, 2014, Smith filed a notice of appeal. Appellate counsel was
appointed on February 17, 2015.
                                      DISCUSSION
       On May 14, 2015, appellate counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436. That same day, our letter inviting Smith to submit supplemental
briefing was issued. No supplemental brief was filed.



                                             4.
       The trial court conducted a hearing on Smith’s petition for recall of sentence and
resentencing after remittitur issued in case number F067404. The trial court applied this
court’s holding in F067404 to the facts of Smith’s underlying offense. Ultimately, the
trial court concluded that Smith was not eligible for resentencing under section 1170.126.
       After an independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                     DISPOSITION
       The December 18, 2014 order denying the petition for recall of sentence and
resentencing pursuant to section 1170.126 is affirmed.




                                            5.
