Filed 2/8/16 P. v. Underwood CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                        B262803

         Plaintiff and Respondent,                                 (Los Angeles County
                                                                   Super. Ct. No. BA306194)
         v.

WILLIE UNDERWOOD,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. William C.
Ryan, Judge. Affirmed.
         Eric Robert Larson 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 Theresa
A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
                                     _____________________________
       Defendant Willie Underwood appeals from an order denying and dismissing his
petition for recall of sentence on three counts under Penal Code section 1170.126.1
Underwood argues he is eligible for resentencing on two counts in light of the California
Supreme Court’s recent decision in People v. Johnson (2015) 61 Cal.4th 674 (Johnson).
While acknowledging Johnson’s applicability, the Attorney General argues Underwood
nevertheless remains ineligible for resentencing as defined by sections 1170.126,
subdivision (e)(2), 667, subdivision (e)(2)(C)(iii), and 1170.12, subdivision (c)(2)(C)(iii)
because he was armed. We affirm.
                                      BACKGROUND
       Following a jury trial in 2007, Underwood was convicted of (1) assault with a
semiautomatic firearm (§ 245, subd. (b)); (2) felony evasion of a peace officer (Veh.
Code, § 2800.2, subd. (a)); and (3) possession of a firearm as a previously convicted
felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1).)2 The court sentenced
him to a total term of 6 years plus 77 years to life in prison under the three strikes law.
(See People v. Underwood (Feb. 25, 2010, B212973, at p. 7 [nonpub. opn.] (Underwood
I).)3 Underwood appealed, but the appellate court upheld Underwood’s conviction and
sentence. (Underwood I, at pp. 1, 19.)4 Underwood petitioned the Supreme Court for
review, but the Supreme Court denied review. Following California’s implementation of
Proposition 36, the Three Strikes Reform Act of 2012, Underwood filed a petition for


       1   Undesignated statutory references are to the Penal Code.
       2 References  to the charge of possession of a firearm as a previously convicted
felon will be referred to as section 29800 offenses because the substance of the statute did
not change when it was amended.
       3 The parties did not submit a complete record in this case due to the limited scope
of issues on appeal.
       4
       This court upheld Underwood’s conviction but ordered the trial court to issue an
amended abstract of judgment to give Underwood 1,945 days of presentence credit and to
acknowledge Underwood’s victim restitution obligation as joint and several.
(Underwood I, supra, B212973, at p. 19.)

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recall of his sentence under section 1170.126. The lower court held that because
Underwood’s assault conviction was a serious felony under section 1192.7, subdivision
(c)(31), he was ineligible for resentencing on all three counts under section 1170.126,
subdivision (e)(2).
          While Underwood’s resentencing petition was pending before the trial court, the
California Supreme Court had not yet decided Johnson; it issued Johnson about a month
after the lower court denied Underwood’s petition. (Johnson, supra, 61 Cal.4th 674.) In
Johnson, the Supreme Court held that defendants are eligible for resentencing on any
qualifying counts, even if they are ineligible for resentencing on unqualified counts. (At
pp. 687–688.) Underwood appealed the trial court’s denial of his resentencing petition.
                                        DISCUSSION
          On appeal, Underwood argues his evasion and possession counts are eligible for
resentencing under Johnson because they are non-serious felonies which are not
otherwise disqualifying under sections 1170.126, subdivision (e)(2), 667, subdivision
(e)(2)(C)(iii), and 1170.12, subdivision (c)(2)(C)(iii). (§§ 1170.126, subd. (e)(2), 667,
subd. (e)(2)(C)(iii), and 1170.12, subd. (c)(2)(C)(iii) [denying resentencing when “during
the commission of the current offense, the defendant . . . was armed with a firearm or
deadly weapon”].) Underwood further contends we cannot hold he was “armed,” in any
event, for the section 29800, subdivision (a)(1) possession charge as a matter of statutory
interpretation.
          Underwood is correct that, under Johnson, it was error as a matter of law for the
court to deny his petition for resentencing on all counts because his assault charge was a
serious felony under section 1192.7, subdivision (c)(31). (Johnson, supra, 61 Cal.4th at
p. 688.) We agree with the Attorney General, however, that Underwood’s remaining
evasion and possession counts remain ineligible for resentencing because he was “armed”
under sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). We
affirm.




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       A.     Underwood was “armed” under sections 667, subdivision (e)(2)(C)(iii)
and 1170.12, subdivision (c)(2)(C)(iii), rendering his evasion and possession counts
ineligible for resentencing
       Underwood claims we must remand resentencing to the lower court because
determining whether he was “armed” for the evasion and possession counts would
require us to impermissibly decide a “new” fact based on evidence outside the record of
conviction. Although the California Supreme Court has not comprehensively defined
“record of conviction,” courts of appeal have consistently held that in the three strikes
context it includes “the entire record of the proceedings leading to imposition of
judgment,” including the trial transcript and appellate court opinions. (People v. Myers
(1993) 5 Cal.4th 1193, 1195; see People v. Bartow (1996) 46 Cal.App.4th 1573, 1580;
People v. Woodell (1998) 17 Cal.4th 448, 454–455.) In Underwood I, the appellate court
reported that at trial, two police officers testified they had seen Underwood “holding a
pistol grip shotgun” as he was fleeing from them in his vehicle and “carrying the
shotgun” as he exited his vehicle to flee by foot. (Underwood I, supra, B212973, at p. 3.)
Underwood does not cite to any cases challenging an appellate court using trial
transcripts or a previous appellate opinion to determine whether a defendant was
“armed”; the cases he does cite to as a challenge to our use of the record are inapplicable
because they address portions of the record not at issue here. (See, e.g., People v. Berry
(2015) 235 Cal.App.4th 1417 [use of preliminary hearing transcript and probation report
was improper to establish conduct necessary for 1170.126, subdivision (e)(2) purposes
where charges alleging that conduct were dismissed].) Thus, the court correctly found,
based on the above evidence, Underwood was “armed” when he committed the offenses
at issue.
       Underwood argues that even if the record of conviction could allow a fact finder to
determine he was “armed” while committing the offense, the record does not clearly
establish the jury actually determined he was armed. For resentencing purposes,
however, courts have held that conduct under sections 667 and 1170.12 need not be
pleaded, proved, or clearly found by a jury to render counts ineligible for sentencing.

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(People v. Blakely (2014) 225 Cal.App.4th 1042, 1058; see also People v. Osuna (2014)
225 Cal.App.4th 1020, 1033 (Osuna).) As a pointed example, in a case where the
underlying count was a section 29800 possession charge, one appellate court factually
determined a defendant was “armed” with a firearm for sections 667, subdivision
(e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) purposes based on a prior appellate
opinion stating “defendant was actually holding a handgun when he first got out of the
car.” (Osuna, at p. 1030.) Based on this case law, finding Underwood was “armed”
given the evidence at bar of his conduct underlying the charges does not require us to
impermissibly determine a disputed issue of fact, as Underwood argues. (See Blakely, at
p. 1058; People v. McGee (2006) 38 Cal.4th 682, 691–692, quoting People v. Guerrero
(1988) 44 Cal.3d 343, 355 [“‘To allow the trier of fact to look to the entire record of the
conviction is certainly reasonable’”]; see also People v. Wilson (2013) 219 Cal.App.4th
500, 516 [unlike here, appellate resolution of sentencing based on “disputed facts” about
whether defendant caused element of “personal infliction” would be “fundamentally
unfair”].) We therefore may, and do, determine Underwood was “armed” based on the
record of conviction.
       B.     A defendant may be considered “armed” for section 29800, subdivision
(a)(1) possession counts
       Underwood additionally argues that as a matter of statutory interpretation, a
defendant can never be considered “armed” for a section 29800, subdivision (a)(1) felon
in possession charge. A body of case law addressing this statutory interpretation issue
refutes his contention. (People v. White (2014) 223 Cal.App.4th 512, 524–526
[convicted felon carrying revolver during current offense was “armed”]; Osuna, supra,
225 Cal.App.4th at p. 1030; People v. Elder (2014) 227 Cal.App.4th 1308, 1312 [“For
Purposes of Section 1170.126, Unlawful Possession of a Firearm Can Constitute Being
Armed During an Offense”]; People v. Brimmer (2014) 230 Cal.App.4th 782, 792–793
[“plain language” of the “armed” exclusion dictates ineligibility if defendant was
“armed” during current offense]; People v. Hicks (2014) 231 Cal.App.4th 275, 284
[likewise finding the “armed” exception is “plain language”].) Underwood provided no

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contrary cites. We agree that “under the plain language of the armed with a firearm
exclusion, [a] 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] used a firearm, [or] was armed with a firearm.’” (Brimmer, at p. 792–793.) As
described above, it was otherwise proper to determine Underwood was “armed” and
therefore to refuse to remand for resentencing.
                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED.


                                                  LUI, J.


We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.




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