Filed 8/4/14 P. v. Acevedo CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                        E058557

v.                                                                       (Super.Ct.No. INF067289)

SERGIO PENA ACEVEDO,                                                     OPINION

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.†

Reversed and remanded with directions.

         Paul E. Zellerbach, District Attorney, and Emily R. Hanks, Deputy District

Attorney, for Plaintiff and Appellant.


         †
         Becky Dugan was the judge for the hearings on February 19 and March 25,
2013. Arjuna T. Saraydarian (Retired Judge of the Riverside Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) was the original sentencing judge
on January 13, 2011.




                                                             1
      Richard Fitzer, under appointment by the Court of Appeal, for Defendant and

Respondent.

      This is an appeal by the People following the trial court’s order granting defendant

and respondent Sergio Pena Acevedo’s petition to recall defendant’s sentence under the

Three Strikes Reform Act of 2012, added by Proposition 36 (the Reform Act).

(Pen. Code, § 1170.126.)1 On appeal, the People contend that the trial court erred in

finding defendant eligible for resentencing under the Reform Act because during the

commission of the commitment offense, defendant was armed with a firearm. For the

reasons explained below, we will reverse and remand the matter to allow the trial court to

conduct an adequate inquiry of the record of conviction.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND2

      On November 24, 2009, California Highway Patrol Officer William Strom was on

routine patrol on Interstate Highway 10 when he observed a vehicle drifting or weaving

between lanes and driving at varying speeds. Officer Strom activated his patrol car’s




      1   All future statutory references are to the Penal Code unless otherwise stated.

      2  The factual background of the underlying offense is taken from this court’s
nonpublished opinion in defendant’s prior appeal following his current convictions. (See
People v. Acevedo (Nov. 10, 2011, E052818) [nonpub. opn.].)



                                              2
emergency lights and stopped the vehicle. Defendant was the driver and sole occupant of

the vehicle.

       After Officer Strom administered field sobriety tests on defendant, defendant was

arrested for driving while under the influence of alcohol or drugs. During an inventory

search prior to towing defendant’s vehicle, the officer found a loaded .38-caliber revolver

stuffed between the driver’s seat and the vehicle’s center console.

       On April 7, 2010, an information was filed charging defendant with possession of

a firearm by a felon (former § 12021, subd. (a)(1)); possession of ammunition by a felon

(former § 12316, subd. (b)(1)); misdemeanor resisting arrest (§ 148, subd. (a)(1));

misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)); misdemeanor

driving with a blood alcohol content over 0.08 (Veh. Code, § 23152, subd. (b)); and

misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a)). The

information further alleged that defendant had suffered two prior serious and violent

felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison

terms (§ 667.5, subd. (b)).

       On December 13, 2010, a jury found defendant guilty of the felon in possession of

a firearm and possession of ammunition charges. Defendant thereafter pled guilty to all

of the misdemeanor charges. In a bifurcated proceeding, the trial court found the prior

allegations to be true. On January 13, 2011, defendant was sentenced to a total

determinate term of four years plus an indeterminate term of 25 years to life in state

prison as follows: a term of 25 years to life for the felon in possession of a firearm, plus



                                              3
one year for each of the four prior prison term allegations; defendant’s sentence on the

felon in possession of ammunition was stayed pursuant to section 654.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Reform Act. Among other things, this ballot measure enacted section 1170.126, which

permits persons currently serving an indeterminate life term under the “Three Strikes”

law to file a petition in the sentencing court seeking to be resentenced to a determinate

term as a second striker. (§ 1170.126, subd. (f).) If the trial court determines, in its

discretion, that the defendant meets the criteria of section 1170.126, subdivision (e), the

court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

       Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is

eligible for resentencing if he or she is serving an indeterminate term of life

imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or

subdivision (c) of section 1170.12 “for a conviction of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or

subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)

       On December 4, 2012, defendant filed a petition for resentencing under

section 1170.126. The People opposed the petition on the grounds that defendant was

statutorily ineligible under the Reform Act. The People argued that defendant was

ineligible because he was armed with a firearm during the commission of the crime and

that defendant posed a risk to public safety.




                                                4
       The trial court heard the petition on February 19 and March 25, 2013. Initially,

the trial court found that a conviction for felon in possession of a firearm under former

section 12021 did not render defendant ineligible under the Reform Act. The court

thereafter informed the People that “[i]f you’re arguing to me, though, that although he

pled to a 12021 that the particular facts are that he was armed with it during another

crime, I would address those, because I think that may be going to the specific language

of the statute, ‘armed with a firearm.’” The prosecutor replied that defendant was pulled

over for driving under the influence and had a gun in the car that was within his control

and possession. The court responded, “Yeah, so I’ll accept those facts. I’ll rule against

you today . . . the statute is pretty clear and it specifically itemizes a language of ‘armed

with while.’ So that’s why I’m comfortable that if he has it in the car while he’s drunk,

he may be stupid, but not ‘armed with while.’”

       On March 25, 2013, following argument from the parties, the trial court granted

the petition, finding defendant eligible for resentencing under section 1170.126. The

court thereafter resentenced defendant to the upper term of six years for felon in

possession of a firearm, plus four one-year terms for the four prior prison term

enhancements, for a total aggregate term of 10 years; defendant’s sentence for felon in

possession of ammunition was stayed pursuant to section 654.

       The People timely filed an appeal on April 15, 2013.3

       3 The appealability of the denial of a section 1170.126 petition is currently being
considered by the Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217
Cal.App.4th 308, review granted July 31, 2013, S211708 [court held it was not
                                                                   [footnote continued on next page]


                                              5
                                               II

                                          DISCUSSION

        The People argue that defendant was statutorily ineligible under the plain language

of the Reform Act, because defendant “was armed with a firearm during the commission

of his commitment offense.” (§ 667, subd. (e)(2)(C)(iii).) The People also assert that the

provisions of section 1170.126 do not contain a pleading and proof requirement to render

defendant ineligible to petition for resentencing.

        Defendant responds that his conviction for felon in possession of a firearm does

not, in and of itself, constitute a disqualifying factor, because the arming must occur

during the commission of a separate, “tethering” felony. Defendant further asserts that

the trial court did not base its finding of eligibility on the lack of a firearm enhancement

and/or because the People failed to plead and prove he was armed with a firearm.

        A.       Principles of Statutory Interpretation

        Statutory interpretation is a question of law. (Reno v. Baird (1998) 18 Cal.4th

640, 660.) Consequently, appellate courts apply their independent judgment when


[footnote continued from previous page]
appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31,
2013, S212017 [court held it was appealable].) Even if we were to conclude it was a
nonappealable order, we could, in the interest of judicial economy and because of
uncertainty in the law, treat the People’s appeal as a petition for writ of habeas corpus or
petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4
[treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v.
Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating
appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we
will review the People’s appeal.



                                                6
interpreting a legislative act. (California Teachers Assn. v. San Diego Community

College Dist. (1981) 28 Cal.3d 692, 699.)

       “Thus, the first step in statutory construction is to examine the statutory language

and give it a plain and commonsense meaning.” (People v. Verduzco (2012) 210

Cal.App.4th 1406, 1414.) In other words, “We must give the statutory provisions at issue

a reasonable and common sense interpretation, consistent with the apparent purpose and

intention of the Legislature. If possible, we will give significance to the plain meaning of

every word, phrase, and sentence of a statute in pursuance of the legislative purpose,

harmonizing the various parts of an enactment by considering each particular clause or

section in the context of the statutory framework as a whole. In this process, we must

take into account the context, object, and history of the legislation, as well as public

policy and contemporaneous construction in our attempt to arrive at a construction that is

practical rather than technical in nature. [Citations.]” (In re Rochelle B. (1996) 49

Cal.App.4th 1212, 1216; see People v. Zambia (2011) 51 Cal.4th 965, 972.)

       “If the meaning of the statute remains unclear after examination of both the

statute’s plain language and its legislative history, then we proceed to the third and final

step of the interpretive process. We apply ‘reason, practicality, and common sense to the

language at hand.’ [Citation.] The words of the statute should be interpreted ‘to make

them workable and reasonable.’ [Citation.]” (People v. Verduzco, supra, 210

Cal.App.4th at p. 1414.)




                                              7
       B.     The Reform Act

       In approving the Reform Act, the voters found and declared that its purpose was to

prevent the early release of dangerous criminals and relieve prison overcrowding by

allowing low-risk, nonviolent inmates serving life sentences for petty crimes, such as

shoplifting and simple drug possession, to receive twice the normal sentence instead of a

life sentence. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1,

subds. (3), (4) & (5), p. 105; see Historical and Statutory Notes, 49 West’s Ann. Pen.

Code (2014 supp.) foll. § 667, pp. 40-41.)4 The electorate also approved a mandate that

the Reform Act be liberally construed to effectuate the protection of the health, safety,

and welfare of the People of California. (Voter Information Guide, supra, text of

Prop. 36, § 7, p. 110.) Accordingly, we liberally construe the provisions of the Reform

Act in order to effectuate its foregoing purposes.

       The Reform Act amended the three strikes statutes (§§ 667, 1170.12) to require

that before a defendant may be sentenced to an indeterminate life term in prison under the

Three Strikes law, the new felony (the commitment offense) must generally qualify as a

serious or violent felony. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(A), (C).)

An exception to this general rule exists, among others, where the prosecution has pled

and proved the defendant used a firearm in the commission of the current offense, was

armed with a firearm or deadly weapon, or intended to cause great bodily injury to

       4 We take judicial notice of the Official Voter Information Guide for the
California General Election of November 6, 2012, relating to the Reform Act. (See
Evid. Code, §§ 452 & 459.)


                                             8
another (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). If the prosecution

pleads and proves this exception exists, the defendant must be sentenced under the Three

Strikes law. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.) There is no

dispute here that sections 667 and 1170.12 explicitly reserved life sentences for cases

where the current crime is a serious or violent felony or the prosecution has pled and

proved an enumerated disqualifying factor.

       The Reform Act also created a post-conviction release proceeding by

adding section 1170.126. Section 1170.126 applies exclusively to those “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).) Under section 1170.126, “a prisoner who is serving an

indeterminate life sentence imposed pursuant to the [T]hree [S]trikes 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.”

(People v. Yearwood, supra, 213 Cal.App.4th at p. 168.)

       Defendant’s current commitment felony offenses of felon in possession of a

firearm and felon in possession of ammunition are not serious or violent felonies under

section 667.5, subdivision (c), or section 1192.7, subdivision (c). However, the inquiry

does not end with whether or not the current conviction is a serious or violent felony. An



                                              9
inmate is eligible for such resentencing if none of his or her commitment offenses

constitute serious or violent felonies and none of the enumerated factors disqualifying a

defendant for resentencing under Proposition 36 apply. (§ 1170.126, subd. (e).)

       Section 1170.126, subdivision (e)(2), provides, as pertinent here, that a defendant

is eligible for resentencing if “[t]he inmate’s current sentence was not 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).) Being armed with a firearm during the commission of a current offense is

listed in section 667, subdivision (e)(2)(C)(iii), and section 1170.12, subdivision

(c)(2)(C)(iii).5 Here, as the parties correctly acknowledge, only the second resentencing

eligibility criterion set forth in section 1170.126, subdivision (e)(2), is at issue in this

       5  Section 667, subdivision (e)(2)(C)(iii), provides: “[(e)(2)](C) If a defendant has
two or more prior serious and/or violent felony convictions as defined in subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and
the current offense is not a serious or violent felony as defined in subdivision (d), the
defendant shall be sentenced [as a second strike offender] pursuant to paragraph (1) of
subdivision (e) unless the prosecution pleads and proves any of the following: [¶] . . . [¶]
(iii) During the commission of the current offense, the defendant . . . was armed with a
firearm . . . .” (Italics added.)
        Section 1170.12, subdivision (c)(2)(C)(iii), provides: “[(c)(2)](C) If a defendant
has two or more prior serious and/or violent felony convictions as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved,
and the current offense is not a felony described in paragraph (1) of subdivision (b) of
this section, the defendant shall be sentenced [as a second strike offender] pursuant to
paragraph (1) of subdivision (c) of this section, unless the prosecution pleads and proves
any of the following: [¶] . . . [¶] (iii) During the commission of the current offense, the
defendant . . . was armed with a firearm . . . .” (Italics added.)



                                               10
appeal.6 Under the plain language of the armed-with-a-firearm exclusion, 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] . . . was armed

with a firearm.” (§§ 667, subd. (e)(2)(C)(iii) & 1170.12, subd. (c)(2)(C)(iii), both cross-

referenced in § 1170.126, subd. (e)(2).)

       C.     “Armed With a Firearm”

       The Reform Act does not define “armed with a firearm.” However, the Penal

Code provides definitions to distinguish between arming and use.7 Section 1203.06,

subdivision (b)(3), defines “armed with a firearm” as “to knowingly carry or have

available for use a firearm as a means of offense or defense.” Section 1203.06,

subdivision (b)(2), defines “used a firearm” as meaning “to display a firearm in a

menacing manner, to intentionally fire it, to intentionally strike or hit a human being with

it, or to use it in any manner that qualifies under Section 12022.5.”8 (See CALCRIM

       6 The first resentencing eligibility criterion set forth in section 1170.126,
subdivision (e)(1), is met because defendant is serving an indeterminate life sentence for
crimes that (as noted, ante ) are not serious or violent felonies. Neither party raises any
issue regarding the third criterion set forth in section 1170.126, subdivision (e)(3), and,
thus, we shall not discuss it further.

       7 In sections 12022 and 12022.5, the Legislature drew a distinction between
armed with a firearm in the commission of a felony and using a firearm in the
commission of a felony, and it made firearm use subject to more severe penalties.
(People v. Bland (1995) 10 Cal.4th 991, 996-997 (Bland).)

       8  Section 12022.5, subdivision (a), provides in pertinent part: “[A]ny person who
personally uses a firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for 3,
4, or 10 years, unless use of a firearm is an element of that offense.”


                                             11
No. 3146 [adopts the statutory definition for “use of a firearm”]; People v. Wims (1995)

10 Cal.4th 293, 302 [noting the definition in the standard jury instruction for “use” was

adapted from the statutory definition].)

       The lead case construing the language of “armed with a firearm” and addressing

the definition of arming for purposes of former section 12022 is Bland, supra, 10 Cal.4th

991. In Bland, our Supreme Court, contrasting arming with use of a firearm, explained

that former section 12022, which imposed an additional prison term for anyone “armed

with a firearm in the commission” of a felony, applied where “the defendant has the

specified weapon available for use, either offensively or defensively.” (Id. at p. 997.)

The court explained: “[T]he statutory language ‘in the commission of a felony’ mean[s]

any time during and in furtherance of the felony. Therefore . . . [a] sentence enhancement

for being ‘armed’ with an assault weapon applies whenever during the commission of the

underlying felony the defendant had an assault weapon available for use in the

furtherance of that felony. [Citation.]” (Id. at p. 1001, italics omitted.) “[B]y specifying

that the added penalty applies only if the defendant is armed with a firearm ‘in the

commission’ of the felony offense, section 12022 implicitly requires both that the

‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’

to that offense.” (Bland, at p. 1002.)

       The Supreme Court has subsequently reiterated Bland’s holding that the arming

under section 12022 must have occurred both during the commission of the underlying

crime and have a facilitative nexus to the crime. (In re Tameka C. (2000) 22 Cal.4th 190,



                                             12
197.) And, most recently, in People v. Pitto (2008) 43 Cal.4th 228, in refusing to

overrule Bland, the court agreed with the defendant’s contention that “Bland appears to

have adopted a ‘facilitative nexus’ test and embraced a ‘purpose and effect’ standard.”

(Id. at p. 239.)

       “The statutory elements of a violation of section 12021, subdivision (a)(1) . . . are

that a person, who has previously been convicted of a felony, had in his or her possession

or under his or her custody or control any firearm.” (People v. Padilla (2002) 98

Cal.App.4th 127, 138, italics added.) 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,

subdivision (a), because a conviction of this offense may also be based on a defendant’s

constructive possession of a firearm. (See People v. Sifuentes (2011) 195 Cal.App.4th

1410, 1417 (Sifuentes); People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [defendant

need not physically have the weapon on his person; constructive possession of a firearm

“is established by showing a knowing exercise of dominion and control” over it].) “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.”

(Sifuentes, supra, at p. 1417.) Hence, while the act of being armed with a firearm—that

is, having ready access to a firearm (Bland, supra, 10 Cal.4th at p. 997)—necessarily

requires possession of the firearm, possession of a firearm does not necessarily require

that the possessor be armed with it.



                                             13
       As the court in In re Pritchett (1994) 26 Cal.App.4th 1754 explained: “Possession

was complete without use of the shotgun. In addition to possessing it, he did use it, but

using it as a club in no way furthered the crime of possession. [¶] At most, [the

defendant] used the shotgun as an instrument of possession, or made ‘possessory use’ of

the shotgun, in the commission of his crime of [felon in] possession. However, if

possessory use is a legally cognizable concept, it does not support a use enhancement

because possessory use is an element of the crime of possession of a deadly weapon.”

(Id. at p. 1757.)

       Defendant argues that he could not be armed with a firearm during the

commission of his possession of that firearm, because the language “during the

commission of the current offense” in the Reform Act requires an additional tethering

offense to trigger that exclusion provision. Defendant further maintains that “[n]o

defendant convicted of the stand-alone offense of possession of a firearm under section

12021, subdivision (a) has ever been found to have been ‘armed’ in the course of that

crime.” We reject defendant’s arguments.

       Where the record establishes that a defendant convicted of possession of a firearm

by a felon was armed with the firearm, i.e., he had a firearm capable for ready use, 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. We therefore

rejected defendant’s argument that the plain language of the armed-with-a-firearm




                                            14
exclusion requires that the arming be anchored or tethered to an offense which does not

include possession.

       Here, the record does not contain the accusatory pleading. It is therefore unknown

whether defendant was charged with being armed with a firearm during the commission

of his current commitment offenses.9 And, the record on appeal does not contain the trial

evidence regarding the factual circumstances of the crime. However, based on this

court’s unpublished opinion in defendant’s prior underlying appeal, it appears that the

prosecution’s case was based on evidence that defendant only possessed the firearm,

either physically or constructively. There is no evidence in this record to show that

defendant was armed with the firearm during his commission of the current offenses, i.e.,

that he had ready access to the firearm. Specifically, based on this court’s prior opinion

and the People’s opposition to defendant’s petition to recall sentence, the record

establishes that defendant had a firearm “in [his] possession or under [his] custody or

control.” (Bland, supra, 10 Cal.4th at p. 997.) But, the record does not demonstrate that

defendant had actual physical possession of the firearm or ready access to that firearm.

       9 Arguably, the prosecution could have charged a firearm enhancement under
section 12022, subdivision (a) (armed with a firearm in the commission of a felony), or
section 12022.5, subdivision (a) (personal use of a firearm in the commission of a
felony). There is, however, authority that suggests that such enhancement allegations
would have been improper. (See, e.g., In re Pritchett, supra, 26 Cal.App.4th at p. 1757
[firearm use enhancement to crime of possession of short-barreled shotgun stricken
because although shotgun was used during the defendant’s possession of the gun, it was
not used “‘in the commission’” of his crime of possession]; People v. Arzate (2003) 114
Cal.App.4th 390, 400-401 [gun use enhancement stricken because such use was “not
committed in the commission of the static offense of carrying a concealed weapon in a
vehicle.” (Italics omitted.)].)


                                            15
       Defendant’s exact arguments were recently rejected by our colleagues in People v.

White (2014) 223 Cal.App.4th 512, 522-524 (White) (review den. Apr. 30, 2014,

S217030 [Fourth Dist., Div. One].) White deemed it appropriate for the court to look

beyond the crime for which defendant had been sentenced to determine whether the

“armed-with-a-firearm” exception to resentencing applied. (Id. at p. 523.) There, the

defendant had been convicted and sentenced as a felon in possession of a firearm. The

court recognized that “possession of a firearm does not necessarily require that the

possessor be armed with it” (id. at p. 524), but affirmed the denial of resentencing

because “the record of conviction establishes that the applicable resentencing eligibility

criterion set forth in section 1170.126[, subdivision] (e)(2) is not satisfied, and, thus, [the

defendant] is ineligible for resentencing relief.” (Id. at p. 524.)

       The trial evidence in White showed that the prosecution’s case was not based on

the theory that White was guilty of possession of a firearm by a felon because he had

constructive possession of the firearm; it was based on the theory that he was guilty of

that offense because he had actual physical possession of the firearm. (White, supra, 223

Cal.App.4th at p. 525.) The court noted: “The trial evidence shows the police officers

conducting a surveillance of White’s residence saw White walking towards his pickup

truck and carrying a rolled-up cloth (sweatpants) with an object inside. The officers

believed White might be armed, and when they moved towards him and drew their guns,

White began to run, reached inside the rolled-up sweatpants he was carrying, and soon

thereafter threw both the sweatpants and the object inside the sweatpants into the bed of



                                              16
his truck. The officers arrested White and found that the object he had thrown into the

truck bed was a loaded .357-magnum revolver. [¶] Furthermore, the record shows White

asserted in a pretrial motion that the object he threw into the back of his truck was ‘a

hand gun in a holster rolled up inside’ the sweatpants. Also, White’s counsel stipulated

during his closing argument at trial that White had been armed.” (Ibid.)

       The record here does not show the prosecution’s case was based on evidence that

defendant not only possessed the firearm, but also that he was armed with the firearm

during his commission of the current offense. We will therefore remand the matter to

allow the trial court to examine the evidence adduced at trial to determine whether the

prosecution’s case was based on the theory that defendant was guilty of possession of a

firearm by a felon because he had actual physical possession of the firearm or had ready

access to that firearm.

       D.     “Plead and Prove” Requirement

       The People also argue that the plain language of section 667, subdivision

(e)(2)(C)(iii), does not require a firearm enhancement. The People further contend that

the resentencing provisions of section 1170.126 do not contain a pleading and proof

requirement. However, as defendant points out, in making its eligibility determination,

the trial court never stated that the People had failed to allege a firearm enhancement or

failed to plead and prove defendant was armed with a firearm as a basis for its ruling. In

addition, defense counsel never made such arguments in the court below or in this court.

As such, we need not address these claims.



                                             17
       In sum, we conclude that, where the trial record establishes the prosecution’s case

was based on the theory a defendant convicted of possession of a firearm by a felon was

physically armed with the firearm or had ready access to that firearm during the

commission of that offense, the armed-with-a-firearm exclusion applies and, thus, a

defendant is not entitled to resentencing relief under the Reform Act.

       We will reverse the order granting defendant’s petition for a recall of his life

sentence and for resentencing as a second strike offender under the Reform Act, and

remand the matter to allow the trial court to conduct an adequate inquiry of the trial

record to determine whether defendant was physically armed with the firearm.

                                             III

                                      DISPOSITION

       The judgment is reversed and remanded with directions in accordance with this

opinion.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                          P. J.
We concur:



KING
                           J.



MILLER
                           J.



                                             18
