Filed 10/8/15 P. v. Gonzalez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040708
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS101065A)

         v.

MIGUEL ANGEL GONZALEZ,

         Defendant and Appellant.


         On July 20, 2011, defendant Miguel Angel Gonzalez was convicted by a jury of
one count of possession of a weapon by a prisoner (Pen. Code, § 4502, subd. (a))1 and, in
a bifurcated proceeding, admitted two prior strike convictions (§ 1170.12, subd. (c)(2)).
Gonzalez was sentenced under the Three Strikes law to an indeterminate term of 25 years
to life, consecutive to any other term he was presently serving.
         In 2013, Gonzalez petitioned for resentencing under the Three Strikes Reform Act
of 2012 (Reform Act), passed by the voters as Proposition 36. The trial court denied the
petition without a hearing, concluding Gonzalez was ineligible for resentencing because
he was “armed with a deadly weapon” during the commission of the current offense.
         On appeal, Gonzalez argues the trial court improperly denied his petition without a
hearing at which he could have presented defenses to the allegation he was armed with a
deadly weapon. He also contends he should have been found eligible for resentencing


         1
             Unspecified statutory references are to the Penal Code.
because: (1) the arming factor was not pleaded and proved at the time of his conviction,
and (2) there was no “tethering” offense to which the arming factor applied.
       We agree the trial court erred in concluding that Gonzalez was armed with a
deadly weapon and will reverse the order denying his petition for resentencing. We
reject his other arguments.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.     Recitation of facts2
       “Defendant, an inmate at Salinas Valley State Prison, approached a correctional
officer in the yard on January 29, 2010, complaining of abdominal pain. Defendant told
the officer he needed to go see a doctor. Defendant was taken to the prison’s treatment
facility, where he told a nurse that he placed something in his rectum a few days earlier.
An x-ray was taken at the treatment facility, which revealed what was described as a
wrapped ‘dark object’ containing metal. Defendant was transferred to Natividad Medical
Center in Salinas, California.
       “There, he informed medical personnel that the object he had lodged earlier in his
rectum had shifted, causing pain.[3] The treating doctor performed a colonoscopy on
defendant, and was able to remove the wrapped object. The item was approximately five
inches in length and a half an inch wide. At trial, correctional officers testified that the



       2
         We recite the facts of Gonzalez’s underlying conviction from our opinion in his
prior appeal, People v. Gonzalez (Feb. 27, 2013, H037851 [nonpub. opn.]), and from the
record in that appeal, of which we take judicial notice. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).)
       3
         “A probation officer interviewed defendant at Salinas Valley State Prison on
December 21, 2011, about the incident. During the interview, defendant told the
probation officer that a fellow inmate gave him the wrapped object and told him to hold
it. Defendant stated that he did not know what the object was, but that if a ‘Northerner’
asked you to do a favor, you do it. Defendant also told the probation officer that he
‘probably’ would not have taken the object if he knew it was a knife.”

                                               2
object was plastic with a metal tip sharpened at one end, which could be used as a
stabbing weapon.”
       The trial court, having denied Gonzalez’s pretrial Romero4 motion, sentenced him
to an indeterminate term of 25 years to life.
       B.       Gonzalez’s petition for resentencing under the Reform Act
       On June 4, 2013, Gonzalez, through the public defender’s office, filed a petition
for recall of sentence under section 1170.126. The trial court denied the petition by
written order dated January 30, 2014, finding Gonzalez ineligible for resentencing
because it concluded he was “armed with a deadly weapon” within the meaning of
section 1170.126, subdivision (e)(2). The trial court stated the basis for its conclusion, as
follows: “Although this weapon was admittedly unavailable to petitioner after being
placed in his rectum, the weapon was clearly available for offense [sic] or defensive use
at some pint [sic] prior to insertion. He was therefore armed with a deadly weapon
during the commission of his current offense and precluded from resentencing.”
       This appeal followed.
II.    DISCUSSION
       A.       The Three Strikes Reform Act
       In the November 6, 2012 election, California voters approved Proposition 36, the
so-called Three Strikes Reform Act of 2012. Prior to the passage of Proposition 36, the
Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) required that a defendant convicted of
two prior serious or violent felonies be subject to a sentence of 25 years to life upon
conviction of a third felony. As amended by the Reform Act, section 1170.12,
subdivision (c)(2)(C), and section 667, subdivision (e)(2)(C), now mandate that a
defendant with two or more strikes who is convicted of a felony that is neither serious nor


       4
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

                                                3
violent be sentenced as a second strike offender unless “the prosecution pleads and
proves” one or more disqualifying factors.
       The Reform Act also added section 1170.126, which allows eligible inmates who
are currently subject to 25-years-to-life sentences under the Three Strikes law to petition
the court for resentencing. “Section 1170.126, subdivisions (a) and (b), broadly describe
who is eligible to file a petition and to be resentenced. Subdivision (a) of section
1170.126 states: ‘The resentencing provisions under this section and related statutes are
intended to apply exclusively to 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.’ ” (Teal v. Superior Court (2014) 60 Cal.4th 595,
598 (Teal).) “Subdivision (b) of section 1170.126 states: ‘Any person serving an
indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12
upon conviction, whether by trial or plea, 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, may file a petition for a recall of sentence. . . .’ ” (Id. at p. 599.)
       Subdivision (e) of section 1170.126 addresses eligibility more specifically. It
provides that an inmate is “eligible for resentencing” if (1) he or she is “serving an
indeterminate term of life imprisonment” imposed under the Three Strikes law “for a
conviction of a felony or felonies that are not defined as serious and/or violent felonies”
and (2) his or her current and prior convictions are not for certain designated offenses. (§
1170.126, subd. (e)(1); Teal, supra, 60 Cal.4th at p. 600.) An eligible prisoner “shall be
resentenced” as a second strike offender unless the court determines that resentencing
him or her “would pose an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).)


                                               4
       “[E]ligibility is not a question of fact that requires the resolution of disputed
issues. The facts are limited to the record of conviction underlying a defendant’s
commitment offense; the statute neither contemplates an evidentiary hearing to establish
these facts, nor any other procedure for receiving new evidence beyond the record of
conviction. [Citation.] What the trial court decides is a question of law: whether the facts
in the record of conviction are the proper subject of consideration, and whether they
establish eligibility.” (People v. Oehmigen (2014) 232 Cal.App.4th 1, 7, third set of
italics added (Oehmigen).) In People v. Bradford (2014) 227 Cal.App.4th 1322
(Bradford), the court decided that, in determining the “armed with a deadly weapon”
disqualifying factor, the trial court is limited to the record of conviction because the
language and framework of Proposition 36 relating to that determination was similar to
that involved in determining whether a prior conviction may be proved as an
enhancement under People v. Guerrero (1988) 44 Cal.3d 343. (Bradford, supra, at p.
1338.) Accordingly, the trial court may look to the “relevant, reliable, admissible
portions of the record of conviction to determine disqualifying factors.” (People v.
Brimmer (2014) 230 Cal.App.4th 782, 800 (Brimmer).)
       The initial eligibility determination must be made on the record of conviction and
the record of conviction alone. (Bradford, supra, 227 Cal.App.4th at p. 1339; Oehmigen,
supra, 232 Cal.App.4th at p. 7.) As noted in Bradford, “[r]egarding eligibility, the
current statute contains no procedure permitting the trial court to consider new evidence
outside of the record of conviction . . . . To do so would impose a cumbersome two-step
process in which the trial court would be required to consider new evidence at two stages
of the proceedings. Had the drafters of Proposition 36 intended the trial court to consider
newly offered ‘evidence’ at the eligibility stage, they would have included express
language of the type they did to describe the nature of the court’s later, discretionary
sentencing determination.” (Bradford, supra, at p. 1339.)


                                              5
       B.     The record of conviction demonstrates Gonzalez was not armed with a
              deadly weapon in committing the current offense
       Gonzalez argues the trial court should have held a hearing on the subject of
whether he was armed with a weapon, at which point he could have presented evidence to
support his defenses of duress and necessity. While we reject the idea that Gonzalez was
entitled to an evidentiary hearing on the question of his eligibility for resentencing, we
conclude the trial court nonetheless erred in concluding, under the facts of this case, that
Gonzalez was armed with a deadly weapon at the time of the current offense.
       To be armed with a weapon, the defendant must have “the specified weapon
available for use, either offensively or defensively.” (People v. Bland (1995) 10 Cal.4th
991, 997, italics added.) In People v. White (2014) 223 Cal.App.4th 512 (White), the
Court of Appeal addressed whether defendant’s conviction for unlawful possession of a
firearm in violation of former section 12021, subdivision (a)(1)5 was sufficient to
establish that he was armed with a firearm. The court noted the statutory elements of that
crime were that a person, “ ‘who has previously been convicted of a felony, had in his or
her possession or under his custody or control any firearm.’ ” (White, supra, at p. 524.)
However, “[a]lthough 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 [former] section 12021[, subdivision] (a)
because a conviction of this offense also may be based on a defendant’s constructive
possession of a firearm.” (Ibid.) Accordingly, “while the act of being armed with a
firearm--that is, having ready access to a firearm [citation]--necessarily requires
possession of the firearm, possession of a firearm does not necessarily require that the
possessor be armed with it. For example, a convicted felon may be found to be a felon in
       5
          Effective January 1, 2012, former section 12021(a) was repealed and reenacted
without substantive change as section 29800, subdivision (a). (See Cal. Law Revision
Com. com. & Historical and Statutory Notes, 51D, pt. 4, West’s Ann. Pen. Code (2012
ed.) foll. § 29800, p. 194.)

                                              6
possession of a firearm if he or she knowingly kept a firearm in a locked offsite storage
unit even though he or she had no ready access to the firearm and, thus, was not armed
with it.” (Ibid., italics added.)
       Constructive possession, therefore, is not sufficient to establish that a defendant is
armed for purposes of the resentencing exclusion at issue in this case. Rather, the
prosecution must show that the weapon was available for the defendant’s immediate use
during the commission of the crime. (See People v. Bland, supra, 10 Cal.4th at p. 997;
People v. Elder (2014) 227 Cal.App.4th 1308, 1313-1314 [“[N]ot every commitment
offense for unlawful possession . . . necessarily involves being armed with the [weapon],
if the [weapon] is not otherwise available for immediate use in connection with its
possession, e.g., where it is under a defendant’s dominion and control in a location not
readily accessible to him at the time of its discovery.”].)
       In this case, the facts are clear that the weapon in question was not “available for
immediate use” by Gonzalez at the time it was discovered. In fact, the only reason the
weapon was discovered in the first place was because Gonzalez could not access it. It is
not enough that Gonzalez had the weapon available for offensive or defensive use for
some unknown period of time prior to secreting it inside his rectum. An inmate who
hides a weapon in his cell similarly is armed with the weapon up until the time that he
conceals it. If the inmate is later removed from the cell and placed in restraints while his
cell is searched, is he too “armed” with the weapon that correctional officers discover
during that search? If so, there would be no distinction between physical and
constructive possession of a weapon and anyone convicted of violating section 4502,
subdivision (a) would be automatically ineligible for resentencing under the Reform Act.
We do not think that the Reform Act was intended to erase the distinction.
       The trial court, therefore, erred by concluding that Gonzalez was armed with a
deadly weapon at the time of the commission of his offense and was thus statutorily


                                              7
ineligible for resentencing under sections 667, subdivision (e)(2)(C)(iii) and 1170.12,
subdivision (c)(2)(C)(iii).
       C.     No pleading and proof requirement in resentencing proceedings
       Gonzalez contends the “ordinary meaning of the statutory language” of the
Reform Act does not permit a defendant to be found ineligible for resentencing due to the
fact that, “[d]uring the commission of the current offense” he or she “was armed with a . .
. deadly weapon,” unless that fact was pleaded and proved when the defendant was
convicted of the current offense. (§§ 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd.
(e)(2).) We disagree.
       This court recently held in People v. Chubbuck (2014) 231 Cal.App.4th 737
(Chubbuck), that a prosecutor is not required to plead and prove any of the
disqualification factors set forth in section 1170.126. (Chubbuck, supra, at p. 740.)
Chubbuck endorsed the analysis set forth in many other recent published decisions from
our sister Courts of Appeal, such as White, supra, 223 Cal.App.4th 512, People v. Osuna
(2014) 225 Cal.App.4th 1020 (Osuna), People v. Blakely (2014) 225 Cal.App.4th 1042,
People v. Elder, supra, 227 Cal.App.4th 1308, and Brimmer, supra, 230 Cal.App.4th
782. (Chubbuck, supra, at p. 745.)
       As in the present case, the defendant in Chubbuck argued that “ ‘a fair reading’ ”
of the Reform Act “ ‘compels a conclusion’ that the pleading and proof language of
section 1170.12, subdivision (c)(2)(C) applies to the disqualifying factors referenced in
section 1170.126, subdivision (e)(2).” (Chubbuck, supra, 231 Cal.App.4th at p. 746.) In
other words, because the Reform Act expressly requires the prosecution to plead and
prove the disqualifying factors at the initial sentencing of a potential third strike
defendant, the prosecution must also plead and prove the disqualifying factors for anyone
seeking resentencing under the Reform Act. Chubbuck expressly rejected this argument,
pointing out that the Reform Act “explicitly distinguishes between the procedures


                                               8
applicable to resentencing and the procedures applicable prospectively, to defendants
who are being sentenced for a new offense.” (Ibid.)
       Gonzalez next argues his current third strike sentence was not imposed for being
armed with a deadly weapon which is one of “the offenses appearing in . . . clauses (i) to
(iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section
1170.12.” (§ 1170.126, subd. (e)(2).) Gonzalez claims that the provision can be
construed as describing an “offense,” only if it is read in conjunction with the pleading
and proof language of section 1170.12, subdivision (c)(2)(C).
       Chubbuck rejected this same argument: “While section 1170.126, subdivision
(e)(2) ‘expressly cross-references “clauses (i) to (iii), inclusive” of [sections] 667[,
subdivision] (e)(2)(C) and 1170.12[, subdivision] (c)(2)(C), nothing in the language of
section 1170.126[, subdivision] (e)(2) or of any of the other subdivisions of section
1170.126 governing an inmate’s petition for resentencing relief under the Reform Act
references the plead-and-prove language.’ ” (Chubbuck, supra, 231 Cal.App.4th at p.
747, quoting White, supra, 223 Cal.App.4th at pp. 526-527.)
       Lastly, Gonzalez argues “the rule of lenity” supports his interpretation of section
1170.126, subdivision (e)(2). However, “the rule of lenity ‘applies “ ‘only if the court
can do no more than guess what the legislative body intended; there must be an egregious
ambiguity and uncertainty to justify invoking the rule.’ ” [Citation.]’ [Citation.] As
stated above, we find no ambiguity as to whether section 1170.126, subdivision (e)(2)
incorporates the pleading and proof requirements of section 1170.12, subdivision
(c)(2)(C).” (Chubbuck, supra, 231 Cal.App.4th at p. 748.)
       D.     No “tethering” requirement in resentencing proceedings
       Gonzalez argues in a supplemental opening brief he should be found eligible for
resentencing because there was no “separate, ‘tethering’ felony offense” besides his mere
possession of a deadly weapon. In support of this argument, Gonzalez cites several
statutes which impose sentence enhancements for being armed “in the commission of the
                                               9
current offense” and notes that case law has uniformly held that those arming
enhancements may be imposed only where there was a separate connected felony charge
beyond simple possession of a deadly weapon.
       The arming enhancement statutes cited by Gonzalez6 all use the phrase “in the
commission of a felony or attempted felony” whereas the Reform Act uses the phrase
“[d]uring the commission of the current offense.” (§ 1170.12, subd. (c)(2)(C)(iii).) The
distinction makes a difference, as explained in Osuna. “[U]nlike section 12022, which
requires that a defendant be armed ‘in the commission of’ a felony for additional
punishment to be imposed (italics added), the [Reform] Act 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.’ [Citation.]
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.” (Osuna, supra, 225
Cal.App.4th at p. 1032.) “Since the [Reform] Act uses the phrase ‘[d]uring the
commission of the current offense,’ and not in the commission of the current offense (§§
667, subd. (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, we
conclude the literal language of the [Reform] Act disqualifies an inmate from
resentencing if he or she was armed with a firearm during the unlawful possession of that
firearm.” (Ibid.; Brimmer, supra, 230 Cal.App.4th at pp. 798-799.) We find no fault
with the analysis in Osuna and therefore conclude the Reform Act does not mandate
       6
         Specifically, section 12022, subdivision (a)(1) (one year enhancement for any
person “armed with a firearm in the commission of a felony or attempted felony”);
section 12022, subdivision (b)(1) (one year enhancement where person “personally uses a
deadly or dangerous weapon in the commission of a felony or attempted felony”); and
section 12022.5, subdivision (a) (three, four or 10 year enhancement for person “who
personally uses a firearm in the commission of a felony or attempted felony”).

                                              10
exclusion for resentencing only where there is a separate tethering felony in which the
defendant is armed with a deadly weapon.
III.   DISPOSITION
       The order denying Gonzalez’s petition is reversed. The matter is remanded to the
superior court with directions to set a hearing on the question of whether resentencing
Gonzalez would pose an unreasonable risk of danger to public safety, in accordance with
Penal Code section 1170.126, subdivision (f).




                                            11
                             Premo, J.




      WE CONCUR:




            Rushing, P. J.




            Elia, J.




People v. Gonzalez
H040708
