Filed 2/6/15 P. v. Graves CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073359

         v.                                                                      (Super. Ct. No. 06F07694)

CHARLES GRAVES,

                   Defendant and Appellant.




         A jury convicted defendant of possession of a firearm by a convicted felon.
(Pen. Code, former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1)].)1 The trial court
sentenced defendant to an indeterminate term of 25 years to life in prison based on his
prior strike convictions.
         Defendant subsequently filed a petition for recall and resentencing pursuant
to section 1170.126. The trial court denied the petition, ruling that defendant is ineligible



1 Undesignated statutory references are to the Penal Code.


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for resentencing because he was armed with a firearm during his most recent offense.
The trial court denied defendant’s motion for reconsideration.
       Defendant now contends (1) the trial court erred in finding him ineligible for
resentencing based on facts outside the record of conviction, and (2) he is entitled to a
jury trial on whether he was armed with a firearm during the commission of the most
recent offense.
       Finding no merit in defendant’s contentions, we will affirm the order denying the
petition for recall and resentencing.
                                        BACKGROUND
       According to the facts referenced by the trial court in its order denying the petition
for recall and resentencing, at about 2:00 a.m. one morning, defendant either took a gun
to a friend’s house and pointed it at a woman he believed cheated him in a drug
transaction, or he confronted the woman unarmed, but then, during a scuffle with an
armed man who responded to her screaming, took the man’s gun and carried it outside
where the gun went off during a confrontation with his friend. The trial court determined
that defendant was ineligible for resentencing because he admitted possessing the gun
that morning and the jury rejected his defense that the possession was transitory. In
response to a petition for reconsideration, the trial court made a correction to its initial
ruling and explained why there was no right to a new jury trial to determine whether
defendant was armed.
                                        DISCUSSION
                                               I
       Defendant contends the trial court erred in finding him ineligible for resentencing
based on facts outside the record of conviction.
       The Three Strikes Reform Act (the Act) was approved by the voters as Proposition
36 in November 2012; it amended Penal Code sections 667 and 1170.12 and added
section 1170.126, changing the requirements for sentencing a third strike offender.

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(People v. Hicks (2014) 231 Cal.App.4th 275 (Hicks).) It essentially “diluted the three
strikes law by reserving the life sentence for cases where the current crime is a serious
or violent felony or the prosecution has pled and proved an enumerated disqualifying
factor.” (Id. at p. 281, quoting People v. Yearwood (2013) 213 Cal.App.4th 161, 167-
168.) It also created a postconviction procedure to allow discretionary resentencing for
persons who have been convicted of crimes that were not serious or violent and who are
not “otherwise disqualified.” (Hicks, supra, 231 Cal.App.4th at pp. 281-282.) Among
other things, a defendant is not eligible for resentencing if, during the commission of the
most recent offense, the defendant used a firearm, was armed with a firearm or deadly
weapon, or intended to cause great bodily injury to another person. (§§ 1170.126,
subd. (e)(2), 1170.12, subd. (c)(2)(C)(iii).)
       Defendant argues the trial court should not have relied on the statement of facts in
this court’s appellate opinion to determine whether defendant was armed. We disagree.
In order to determine whether a defendant is ineligible for resentencing, a trial court
examines the “conduct that occurs during the commission of an offense.” (People v.
Bradford (2014) 227 Cal.App.4th 1322, 1333.) The trial court must therefore “consider
the nature of a petitioner’s prior conviction. Specifically, the court must consider
whether, during the commission of an offense that has been previously adjudicated at the
time of the resentencing proceedings, ‘the defendant used a firearm, was armed with a
firearm or deadly weapon, or intended to cause great bodily injury to another person.’
[Citations.]” (Id. at pp. 1338-1339.) The trial court may look at “the record of
conviction” as that phrase is defined in the cases addressing whether a prior conviction is
a serious felony. (Id. at p. 1338; see People v. Woodell (1998) 17 Cal.4th 448 (Woodell);
People v. Guerrero (1988) 44 Cal.3d 343.) That includes the trial and appellate record of
the conviction and any appellate opinion in the case. (Woodell, supra, 17 Cal.4th at
p. 456; Hicks, supra, 231 Cal.App.4th at p. 286.)



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       Defendant points out that in Woodell the California Supreme Court explained that
whether an appellate court opinion is probative must be decided on the facts of the case.
But the Supreme Court was acknowledging that an appellate opinion may not address
facts pertinent to postconviction proceedings, adding that “[i]f the appellate court did
state the pertinent facts, a trier of fact is entitled to find that those statements accurately
reflect the trial record.” (Woodell, supra, 17 Cal.4th at p. 457.) Here, the appellate
opinion included the pertinent facts.
       Defendant also asserts another argument, but he did not reference the argument in
a heading of his appellant’s opening brief. He argues that a person cannot be armed with
a firearm during the commission of the crime of possession of a firearm by a convicted
felon. He claims there must be a “tethering” or “anchoring” offense to trigger the arming
disqualification. This court recently rejected such an argument in Hicks, supra, 231
Cal.App.4th at pp. 283-284.
       Defendant argues the language in the Act mirrors the language in section 12022.
But the language is actually different. Section 12022 authorizes a sentencing
enhancement when a defendant is armed with a firearm “in the commission or attempted
commission of the underlying felony.” (§ 12022, subd. (a)(1), emphasis added.)
Whereas section 1170.126, subdivision (e)(2) renders defendant ineligible for
resentencing if “[d]uring the commission of the current offense, the defendant . . . was
armed with a firearm . . . .” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
       Defendant’s argument has been expressly rejected based on these differences in
language and purpose. (People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314;
People v. Osuna (2014) 225 Cal.App.4th 1020, 1032.) As the court explained in Osuna,
the defendant in that case was armed with a firearm “during” the commission of his
possession offense, not “in” the commission of his possession offense. (Osuna, supra,
225 Cal.App.4th at p. 1032.) “There was no facilitative nexus; his having the firearm
available for use did not further his illegal possession of it. There was, however, a

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temporal nexus.” (Ibid.) Because the Act uses the phrase “[d]uring the commission”
and not “in the commission,” and because the Act does not impose additional punishment
but rather the opportunity for reduced punishment, the court in Osuna concluded “the
literal language of the Act 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.) Other courts have held that when a defendant is armed with
a firearm during the commission of the offense of possession of a firearm by a convicted
felon, the defendant is ineligible for resentencing under section 1170.126. (People v.
Blakely (2014) 225 Cal.App.4th 1042, 1054; People v. White (2014) 223 Cal.App.4th
512, 524.)
       Here, because the record indicates defendant held a firearm, the trial court did not
err in finding that he was ineligible for section 1170.126 resentencing.
                                             II
       Defendant next claims he is entitled to a jury trial on whether he was armed with
a firearm during the commission of the most recent offense.
       Specifically, defendant claims the jury did not explicitly find he was armed with
a firearm, so he had a right to a jury trial on that question under Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435] and Alleyne v. United States (2013) ___ U.S. ___
[186 L.Ed.2d 314]. Applying the principles set forth in Apprendi, the United States
Supreme Court held in Alleyne that a sentence enhancement could not be imposed when
the facts supporting that enhancement were determined by a judge rather than a jury.
(Alleyne, supra, ___ U.S. at p. ___ [186 L.Ed.2d at p. 329].) Here, however, the trial
court determined that those cases are inapposite because the resentencing law does not
operate to enhance criminal penalties; rather, it provides an opportunity to reduce already
imposed sentences for certain qualifying inmates. We agree with the trial court that
defendant does not have a right to a new jury trial. (See Dillon v. United States (2010)
560 U.S. 816, 828-829 [177 L.Ed.2d 271, 285] [assessing eligibility for downward

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adjustments to otherwise final sentences based on intervening law is not an encroachment
on facts historically found by jury] and People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279, 1304 [discussing Dillon and concluding jury trial rights are not at
issue in resentencing determination under the Act].)
                                     DISPOSITION
      The order denying the petition for recall and resentencing is affirmed.



                                                             MAURO                       , J.


We concur:


             RAYE                    , P. J.


             MURRAY                 , J.




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