Filed 9/30/15 P. v. Briseno CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067101

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SF112318)

HUGO VICTOR BRISENO,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielson, Judge. Affirmed.

         Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M.

Clark, Deputy Attorneys General, for Plaintiff and Respondent.
       In 1997, a jury convicted Hugo Victor Briseno of being a felon in possession of a

firearm. (Pen. Code,1 § 12021, subd. (a) [renumbered as § 29800, subd. (a)(1), Stats.

2010, ch. 711, § 6].) The court found true four prison priors (§ 667.5, subd. (b)), and two

strike priors (§ 667, subds. (b)-(i)).

       On August 28, 1997, the court sentenced Briseno to an indeterminate term of 29

years to life.

       In August 2013, Briseno filed a petition for resentencing pursuant to the Three

Strikes Reform Act of 2012 (Act; § 1170.126).

       In November 2014, the trial court issued an order to show cause why Briseno's

petition should be denied because he was ineligible for resentencing on the ground he

was armed with a firearm at the time of the offense pursuant to section 1170.126,

subdivision (e)(2).

       The trial court received additional briefing from Briseno, although the prosecution

filed nothing and made no argument at the hearing. Following a brief hearing the court

found Briseno ineligible for resentencing because the record of conviction demonstrated

he was personally armed at the time of the offense.

       Briseno appeals contending the trial court erred in finding him to be armed when

his conviction was only for possession, a nonserious felony. In addition, Briseno argues

he was entitled to a jury trial and to have the prosecution prove he was armed, beyond a

reasonable doubt.



1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
       Briseno candidly acknowledges that appellate case law has rejected his position on

each issue. He contends, however, that the cases have been wrongly decided.

                                 STATEMENT OF FACTS

       The record does not contain a transcript of the 1997 trial. However, the parties

have utilized the probation officer's report from the 1997 conviction without objection.

We will take only a small portion of that report for our factual summary, since we are

only concerned with information regarding whether, in addition to possessing a firearm,

Briseno was personally armed with one.

       This case arises from a stop of a vehicle by police as part of a drug investigation.

During the stop Briseno was patted down by an officer. During the pat-down, a small,

chrome plated .32 caliber firearm fell to the ground.

       During his conversation with the probation officer, Briseno admitted he had

possession of the gun. He said it had been passed to him seconds before the stop as he

was supposed to throw it away.

                                      DISCUSSION

       Briseno contends the trial court erred in finding him ineligible for resentencing

under the Act. He was convicted of possession of a firearm, not of being armed. Thus,

he claims the record does not support a finding of ineligibility. In any event, he contends

he was entitled to a full trial on the issue. As Briseno recognizes, both questions have

been resolved against him by the appellate courts. He argues the cases were wrongly

decided. We disagree and therefore affirm.



                                             3
                         A. The Three Strikes Reform Act of 2012

       The Act substantially changed the prior law. Going forward defendants will be

eligible for a life sentence only if the "third strike" is a serious or violent felony. The Act

also contains a provision for resentencing those who are serving life terms where the third

strike was a nonserious felony. In the latter case a procedure was established to allow

recall and resentencing for qualifying inmates. The Act also contains provisions under

which a person who might otherwise qualify for relief may be deemed ineligible.

(People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)

       One of the ineligibility provisions is section 1170.126, subdivision (e)(2). The

provision renders an inmate ineligible for resentencing where the person was "armed with

a firearm" during the commission of the offense.

                                B. The Record of Conviction

       The question presented in this case is whether the record of conviction

demonstrates Briseno was armed during his possession of a firearm. The parties have

utilized the probation officer's report, which includes Briseno's admission to the

probation officer that he had physical possession of the gun, albeit for a brief time. There

has been no objection to the use of the report as part of the record of conviction. We will

use the probation report in our analysis of the trial court's decision.

       In People v. White (2014) 223 Cal.App.4th 512 (White), this court considered a

similar fact situation. There the defendant was convicted of possession, however the

record showed he had the gun in his physical possession at the time of the offense. The

court in White stated that where "the record establishes that a defendant convicted under

                                               4
the pre-Proposition 36 version of the Three Strikes law as a third strike offender of

possession of a firearm by a felon was armed with a firearm 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." (Id. at p. 519.)

       The appellate courts in People v. Brimmer (2014) 230 Cal.App.4th 782, 797

(Brimmer), and People v. Osuna (2014) 225 Cal.App.4th 1020, 1028-1032 (Osuna), have

agreed with our court's decision in White, supra, 223 Cal.App.4th 512.

       The term "armed with a firearm" means having the firearm available for use, either

offensively or defensively. (Osuna, supra, 225 Cal.App.4th at p. 1029.) It is the

availability of the weapon for ready use that constitutes arming. (People v. Bland (1995)

10 Cal.4th 991, 997.)

       Briseno argues the cases cited have been wrongly decided. We have reviewed the

opinions which have applied ineligibility in cases such as this and find them persuasive.

We decline to revisit our decision in White, supra, 223 Cal.App.4th 512. Thus we are

satisfied the record of conviction in this case established Briseno was armed with a

firearm within the meaning of section 1170.126, subdivision (e)(2) and is thus not

eligible for resentencing

                                C. Procedural Due Process

       Briseno argues he was entitled to a full trial on the question of whether he was

armed. He relies in large part on Apprendi v. New Jersey (2000) 530 U.S. 466. In

Apprendi the court held that where a person's sentence is increased beyond that which

would be allowed for the elements of the offense based on a fact or allegation, due

                                             5
process requires that the person have notice of the fact or allegation and that the

government must be required to prove the allegation, beyond a reasonable doubt. The

defendant must also be given the right to a jury trial. (Id. at p. 490.) If Briseno were now

charged in a new three strikes case, he would have the right to the due process mandated

in Apprendi. This is not a new charging event, however. In 1997, Briseno's prior

convictions were alleged and proved and his conviction has long since been final.

Rather, he is seeking to get the benefit of a new statute, which does not provide relief for

persons whose record of conviction shows the person was armed.

       In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301, the

court rejected the argument that a defendant seeking resentencing under the Act was

entitled to the due process outlined in Apprendi, supra, 530 U.S. 466. The court in

Osuna, supra, 225 Cal.App.4th at page 1039, reached the same conclusion. Also

agreeing that Apprendi does not apply are the courts in Brimmer, supra, 230 Cal.App.4th

at page 803 and People v. Blakely (2014) 225 Cal.App.4th 1042 at page 1059. As we

have noted Briseno contends all of these cases were wrongly decided. As we have

previously said, we disagree and will follow existing case law.

       Accordingly, we find the trial court did not deny Briseno due process in the

manner in which his petition was resolved.




                                              6
                                  DISPOSITION

    The order denying Briseno's petition for resentencing under the Act is affirmed.




                                                              HUFFMAN, Acting P. J.

WE CONCUR:


                    NARES, J.


                O'ROURKE, J.




                                         7
