Filed 1/8/16 P. v. Miranda CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR




THE PEOPLE,                                                                     B261306

                        Plaintiff and Respondent,                               (Los Angeles County
                                                                                Super. Ct. No. KA061835)
          v.

JERRY MARTIN MIRANDA,

                        Defendant and Appellant.




          APPEAL from an order of the Superior Court of Los Angeles Country, William C.
Ryan, Judge. Affirmed.
          Richard B. Lennon, by appointment of the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General of California, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B.
Wilson and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.


                                         ______________________________
       Defendant Jerry Martin Miranda appeals from an order denying his petition for
resentencing under Proposition 36, the Three Strikes Reform Act of 2012. (Pen. Code,
§ 1170.126.)1 The trial court found him ineligible for resentencing because the current
offenses were committed while armed with a firearm. (§§ 667, subd. (e)(2)(C)(iii),
1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) Finding no error, we affirm.


                      FACTUAL AND PROCEDURAL SUMMARY
       In 2003, defendant pleaded guilty to one count of possession of a firearm by a
felon (former § 12021, subd. (a)(1), now see § 29800, subd. (a)(1), count 1), two counts
of possession of a controlled substance while armed with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a), counts 2 & 3), and one count of possession of narcotics
paraphernalia (Health & Saf. Code, § 11364, count 4); he also admitted allegations that
he had suffered four prior strike convictions (§§ 667, subds. (b)-(k), 1170.12, subds. (a)-
(d)) and served three prior prison terms within the meaning of Penal Code section 667.5,
subdivision (b). He received a state prison sentence of 25 years to life. We affirmed the
judgment of conviction in a prior appeal. (People v. Miranda (Mar. 23, 2005, B171716)
[nonpub.opn].)
       In November 2012, the electorate adopted Proposition 36, which amended the
Three Strikes law by limiting the imposition of an indeterminate life sentence to those
defendants whose third felony is defined as serious or violent. The initiative allowed
those serving a life sentence for a third felony that is not defined as serious or violent to
petition for recall of sentence and resentencing. (§ 1170.126, subd. (b).)
       Defendant filed a petition for resentencing under Proposition 36. The People
argued that defendant’s current offenses do not qualify for resentencing based on the
firearm disqualification provision: an offense does not qualify for resentencing if, during
the commission of that offense, the defendant “used a firearm, was armed with a firearm




       1
           All further statutory references are to the Penal Code, unless otherwise indicated.
                                               2
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).)
       The People submitted transcripts of the preliminary hearing, guilty plea hearing,
and sentencing hearing. The transcripts showed that during the search of his apartment,
defendant admitted he had narcotics in his pants which were in his bedroom; upon
recovering the narcotics from defendant’s pants, police also found, within an arm’s span
of the pants, a loaded semi-automatic handgun hidden under a mattress.2
       Defendant argued that he was not armed during the commission of the current
offenses because the handgun was not within his dominion and control. The trial court
disagreed. It found that he was armed with a firearm during the commission of the
current offenses, and therefore was ineligible for resentencing (citing People v. Elder
(2014) 227 Cal.App.4th 1308; People v. Hicks (2014) 231 Cal.App.4th 275). This appeal
followed.
                                       DISCUSSION
       Defendant does not expressly challenge the sufficiency of the evidence to support
the finding that he was armed with a firearm during the commission of the current
offenses. Instead, he challenges the definition of the term “armed with a firearm,” and
argues that the record does not support the conclusion that he was “armed with a firearm”
as provided in the disqualification provision of Proposition 36. We disagree.


       2
         According to our prior opinion: “On May 8, 2003, Pomona Police Officer
Michael Lange searched an apartment in the city of Pomona with his partner Officer
Freeman and various parole officers. When Officer Lange entered the apartment, he saw
appellant, and appellant admitted that he had narcotics in his pants, which were in his
bedroom. A bindle of cocaine and one of heroin were found in appellant’s pants in the
bedroom and within an arm’s span a loaded .22-caliber semi-automatic handgun was
found secreted between the mattress and the box spring of appellant’s bed. Parole agent
Castanedo found a ‘hype kit’ in the kitchen cabinet. While being transported to the
police station, appellant stated the drugs were only for personal use and the weapon was
for his protection. It was stipulated that one item found was a container enclosing a net
weight of approximately 0.45 gram of a solid substance containing heroin and another to
be a container enclosing a net weight of approximately 0.18 gram of powder containing
cocaine.” (People v. Miranda, supra, B171716 at pp. 2–3.)
                                               3
       The term “armed with a firearm” has been “judicially construed to mean having a
firearm available for use, either offensively or defensively. [Citations.]” (People v.
Osuna (2014) 225 Cal.App4th 1020, 1029.) The fact that the firearm was hidden in a
mattress in his bedroom does not preclude a finding that defendant was armed with a
firearm during the commission of the present offenses. “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 [while the parolee is present] 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.” (Id. at p. 1030.)
       Defendant claims that in order to be armed with a firearm, there must be an
underlying felony to which the arming is tethered. He argues that because there is no
underlying felony with respect to the crimes of possessing a firearm and possessing drugs
in conjunction with a firearm, the trial court erred in finding that he was armed during the
commission of the current offenses.
       Defendant has not provided any controlling authority for his position. The
appellate court considered and rejected a similar argument in People v. Hicks, supra, 231
Cal.App.4th 275. In that case, the defendant argued he was not armed during the
commission of the offense because there was no “underlying felony to which the arming
is ‘tethered.’” (Id. at p. 283.) The appellate court rejected his argument, and noted that
although sentencing enhancements under section 12022 require a “facilitative nexus”
between the arming and the possession, Proposition 36 does not. (Ibid.) The court
explained that under Proposition 36, a defendant is deemed to have been “armed with a
firearm” if the firearm was available “‘[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.]” (Hicks, 231 Cal.App.4th at pp.
283–284.)


                                             4
       Applying the temporal definition of the term “armed with a firearm” to the record
of conviction in this case, we conclude there is substantial evidence to support the finding
that defendant was armed with a firearm during the commission of the current offenses.
We therefore conclude he is ineligible for resentencing under Proposition 36.
       Defendant’s reliance on the doctrine that “the expression of certain things in a
statute necessarily involves exclusion of other things not expressed . . .” is misplaced.
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391,
fn. 13, quoting Henderson v. Mann Theatres Corp. (1976) 65 Cal.App.3d 397, 403.)
Based on this doctrine, he argues that because a list of disqualifying offenses appears in
Proposition 36, there can be no other disqualifying offenses, and he therefore is eligible
for resentencing on each count.3 But defendant’s interpretation fails to give effect to the
firearm disqualification provision (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd.
(c)(2)(C)(iii)). The applicable rule of statutory construction is that the court must “give
effect to all provisions of a statute whenever possible. [Citation.]” (Khajavi v. Feather
River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 49, citing Code Civ. Proc.,
§ 1858.)
       Applying the firearm disqualification provision to defendant’s current offenses is
consistent with both the record of conviction and the voters’ intent. “[W]e believe the
electorate intended the disqualifying factors to have a broader reach than defendant’s
interpretation of the statute would give them.” (People v. Osuna, supra, 225 Cal.App.4th

       3
         Resentencing under Proposition 36 is not available to an inmate if (1) the current
sentence is for a serious drug offense, a felony sex offense requiring registration as a sex
offender, or a felony involving a firearm, a deadly weapon, or the intent to cause great
bodily injury; or (2) the inmate has been convicted of one of the felonies Proposition 36
designates as the most serious and violent offenses. (§ 1170.126, subd. (e)(2) & (3).)
The disqualifying felonies are (a) sexually violent offense; (b) oral copulation, sodomy,
sexual penetration, or a lewd or lascivious act involving a child under 14 years of age;
(c) any homicide offense, including any attempted homicide; (d) solicitation to commit
murder; (e) assault with a machine gun on a peace officer or firefighter; (f) possession of
a weapon of mass destruction; and (g) any serious or violent felony offense punishable in
California by life imprisonment or death. (§§ 667, subd. (e)(2)(C)(iv), 1170.12,
subd. (c)(2)(C)(iv).)
                                              5
at p. 1034.) Proposition 36 was “intended to provide resentencing relief to low-risk,
nonviolent inmates serving life sentences for petty crimes, such as shoplifting and simple
drug possession. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36,
§ 1, subds. (3), (4) & (5), p. 105.)” (People v. Brimmer (2014) 230 Cal.App.4th 782,
799.) Proposition 36 was not intended to reduce the sentences of felons who were armed
with a firearm during the commission of the current offenses. (See People v. Elder,
supra, 227 Cal.App.4th at p. 1314.) Although “possession of a gun of itself is not
criminal, a felon’s possession of a gun is not a crime that is merely malum prohibitum.
As we stated nearly 20 years ago, ‘public policy generally abhors even momentary
possession of guns by convicted felons who, the Legislature has found, are more likely to
misuse them.’ [Citation.] Therefore, even if the great majority of commitments for
unlawful gun possession come within our interpretation of this eligibility criterion, it
would not run afoul of the voters’ intent.” (Id. at p. 1314, fn omitted.)


                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       MANELLA, J.




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