Filed 5/11/16 P. v. McGee CA2/7



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                       DIVISION SEVEN


THE PEOPLE,                                      B265244

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. BA126577)
        v.
                                                  ORDER MODIFYING OPINION
DEMITRUIS T. MCGEE,                               NO CHANGE IN JUDGMENT

        Defendant and Appellant.




THE COURT:
      The opinion filed herein on May 9, 2016, reflects an incorrect Los Angeles
Superior Court Case No. as BA126557. It is ordered that the opinion be modified as
follows:

        The correct Los Angeles Superior Court Case No. is BA126577.




________________________________________________________________________
PERLUSS, P. J.,                ZELON, J.,                      SEGAL, J.
Filed 5/9/16 P. v. McGee CA2/7 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


THE PEOPLE,                                                          B265244

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA126557)
         v.

DEMITRUIS T. MCGEE,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, William
Ryan, Judge. Affirmed.
         Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kama D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Arlene
M. Games, Deputy Attorneys General, for Plaintiff and Respondent.



                                   _______________________________
       Demitrius McGee, convicted in 1996 for possession of a firearm by a felon and
sentenced to a term of 27 years to life, petitioned for recall of his sentence pursuant to
Penal Code section 1170.126. Finding McGee ineligible for relief because he was armed
during the commission of the offense, the trial court denied the petition. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       McGee was convicted after a jury trial of being a felon in possession of a firearm
in violation of Penal Code section 12021(a)(1)1 and sentenced, as a third strike offender
(§§ 667, subds. (b)-(d), 1170.12), to a term of 27 years to life. On appeal, this court
affirmed the judgment.2
       In 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of
2012 (Prop. 36), which, among other modifications of the Three Strikes Law, added
section 1170.126 to the Penal Code to permit petitions for recall of sentences, and
resentencing by individuals who would not have been subject to indeterminate life
sentences had they been sentenced under Proposition 36.
       On December 3, 2012, McGee filed a petition for recall. The trial court issued an
order to show cause, and the People filed opposition to the petition, asserting that McGee
was ineligible for resentencing because he was armed during the commission of the
offense, and that he was unsuitable for resentencing because of his record. After
additional briefing by both parties, and a hearing at which McGee was represented by
counsel, the trial court denied the petition on March 24, 2015, finding McGee ineligible.
McGee appealed.




1      The statute has been renumbered as 29800, subdivision (a). All further statutory
references are to the Penal Code.

2      People v. McGee (May 21,1998, B106792 [nonpub.opn.].)

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                                       DISCUSSION
       On appeal, McGee argues that former section 12021(a)(1) is not a crime
enumerated in Proposition 36 as being excluded from eligibility for resentencing, and
that, under the circumstances of his conviction, he should not be deemed ineligible for
resentencing.
       As relevant here, an inmate is not eligible for resentencing under section 1170.126
if his or her current sentence was “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).) The referenced statutes prohibit
treating a third strike offender as a second strike offender for purposes of sentencing if
“[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).) Acknowledging this
provision, McGee argues that these factors may not be part of the offense in question, but
must be found in addition to the offense itself. As a result, he argues his conviction, for
the possession of a firearm, does not fall within the exclusion.
       The appellate courts have uniformly rejected this argument, a fact McGee
acknowledges. Although he argues those cases were wrongly decided, we disagree.
       In People v. Osuna (2014) 225 Cal.App.4th 1020 (Osuna), the court noted that the
phrase “armed with a firearm” “has been statutorily defined and judicially construed to
mean having a firearm available for use, either offensively or defensively.” (Id. at
p. 1029.) The evidence in the defendant’s case established that he was “armed with a
firearm” when he illegally possessed the firearm. (Id. at p. 1030.) The defendant did not
dispute this. He claimed, however, as does McGee, that in order to be ineligible for recall
of sentence under Proposition 36 “there must be an underlying felony to which the
firearm possession is ‘tethered’ or to which it has some ‘facilitative nexus.’ He [argued]
one cannot be armed with a firearm during the commission of possession of the same
firearm.” (Ibid.)

                                              3
       The court explained this analysis would be appropriate if the case “were concerned
with imposition of an arming enhancement—an additional term of imprisonment added
to the base term, for which a defendant cannot be punished until and unless convicted of
a related substantive offense. [Citations.]” (Osuna, supra, 225 Cal.App.4th at p. 1030.)
An arming enhancement under section 12022, subdivision (a)(1), may be imposed where
the defendant is armed “‘in the commission of’ a felony.” (Osuna, supra, 225
Cal.App.4th at p. 1031.) Such an enhancement “‘requires both that the “arming” take
place during the underlying crime and that it have some “facilitative nexus” to that
offense.’” (Ibid.) That is, that the defendant “have a firearm ‘available for use to further
the commission of the underlying felony.’ [Citation.]” (Ibid.)
       However, “[h]aving a gun available does not further or aid in the commission of
the crime of possession of a firearm by a felon. Thus, a defendant convicted of violating
section 12021 does not, regardless of the facts of the offense, risk imposition of
additional punishment pursuant to section 12022, because there is no ‘facilitative nexus’
between the arming and the possession. However, unlike section 12022, which requires
that a defendant be armed ‘in the commission of’ a felony for additional punishment to be
imposed (italics added), [Proposition 36] disqualifies an inmate from eligibility for lesser
punishment if he or she was armed with a firearm ‘during 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. (1986)
p. 703.) In other words, it requires a temporal nexus between the arming and the
underlying felony, not a facilitative one. The two are not the same. [Citation.]” (Osuna,
supra, 225 Cal.App.4th at p. 1032.)
       Based on this analysis, the court concluded the “defendant was armed with a
firearm during his possession of the gun, but not ‘in the commission’ of his crime of
possession [of a firearm by a felon]. There was no facilitative nexus; his having the
firearm available for use did not further his illegal possession of it. There was, however,
a temporal nexus. Since [Proposition 36] uses the phrase ‘[d]uring the commission of the
current offense,’ and not in the commission of the current offense (§§ 667, subd.

                                             4
(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the imposition of
additional punishment but rather eligibility for reduced punishment, . . . the literal
language of [Proposition 36] disqualifies an inmate from resentencing if he or she was
armed with a firearm during the unlawful possession of that firearm.” (Osuna, supra,
225 Cal.App.4th at p. 1032; accord, People v. Brimmer (2014) 230 Cal.App.4th 782, 799
(Brimmer); see also People v. Berry (2015) 235 Cal.App.4th 1417, 1426.)
       Appellate courts in the firearm possession cases have uniformly concluded the
ineligibility factor applies whenever the record shows the defendant was in actual
physical possession of the firearm, and thus armed. (See Brimmer, supra, 230
Cal.App.4th at p. 797; Osuna, supra, 225 Cal.App.4th at p. 1030; People v. White (2014)
223 Cal.App.4th 512, 525.) They reason that a firearm possession offense that amounts
to arming is not a minor non-violent offense for purposes of Proposition 36. (See
Brimmer, supra, 230 Cal.App.4th at p. 799.)
       McGee’s case is not distinguishable. As in Osuna, McGee had the weapon
available for use; the record demonstrated the weapon was loaded and within his grasp
when he was first sighted by the police. The trial court did not err.

                                       DISPOSITION
       The order denying the petition is affirmed.



                                                   ZELON, J.




We concur:




       PERLUSS, P. J.                              SEGAL, J.

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