Filed 8/31/15 P. v. Pontod 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                             C076997

                   Plaintiff and Respondent,                              (Super. Ct. No. SF112457A)

         v.

MANUEL RAY PONTOD,

                   Defendant and Appellant.




         Defendant Manuel Ray Pontod filed a petition for recall of his indeterminate life
sentence and resentencing pursuant to Penal Code section 1170.126.1 The trial court
denied his petition, finding he was ineligible for resentencing because he was armed with
a firearm during the commission of the offense. Defendant appealed. We shall affirm
the order denying his petition.



1 Undesignated statutory references are to the Penal Code.



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                 FACTUAL AND PROCEDURAL BACKGROUND

       We take the facts of defendant’s current crime from our prior opinion affirming
his conviction. (People v. Pontod (May 30, 2013, C065925) [nonpub. opn.]; see People
v. Guilford (2014) 228 Cal.App.4th 651, 660-661 [prior appellate opinion admissible to
prove ineligibility in section 1170.126 proceeding] (Guilford).)

       Defendant was one of three individuals inside a car involved in a traffic stop. He
was seated in the right rear passenger seat, and was the only person seated in the rear. As
officers approached the car, defendant appeared to be trying to cover something up on the
floorboard. When one of the officers, who was standing at the right rear side of the car,
shone his flashlight toward the interior of the car, he saw the handle of a .44-caliber
revolver at defendant’s feet, and saw defendant move like he was trying to kick the gun
forward. A search of the car revealed a .44-caliber revolver under the rear portion of the
right front passenger seat and a box of .44-caliber ammunition on the rear passenger seat.
Additionally, an officer testified a mechanism under the front passenger seat acted as a
barrier, which would have made it unlikely the .44-caliber revolver had been pushed from
the front.

       Defendant was convicted by a jury of being a felon in possession of a firearm
(§ 12021, subd. (a)) and ammunition (§ 12316, subd. (b)(1)), and the trial court found he
had two prior strike convictions. He was sentenced to 25 years to life in prison.

       In September 2013, defendant petitioned for recall of his sentence pursuant to
section 1170.126, subdivision (b). The trial court denied his petition, finding that
whether defendant was “armed during the commission of [the offense]” could be proved
by either actual or constructive possession showing he had exercise of dominion or
control over the weapon, and that “[b]y kicking the firearm with his foot, [defendant] was
exercising dominion and control of the firearm when he tried to kick it under the front




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seat. Therefore, he was armed during the commission of this felony and . . . he is
ineligible for resentencing.” Defendant timely appealed.

                                       DISCUSSION

   I. Possession of a Firearm May Render an Inmate Ineligible for Resentencing

       Within certain parameters, section 1170.126 permits three strikes inmates serving
life terms for felonies that are neither serious nor violent to petition for resentencing.
(§ 1170.126, subds. (b), (e)(1).) Section 1170.126 was added by Proposition 36, the
Three Strikes Reform Act of 2012 (Reform Act). Certain factors render an inmate
ineligible for resentencing. The factor at issue in the present appeal is set forth in section
1170.126, subdivision (e)(2), which renders an offender ineligible for recall of sentence if
“[d]uring the commission of the current offense, the defendant used a firearm, [or] was
armed with a firearm or deadly weapon . . . .” (§ 667, subd. (e)(2)(C)(iii).)

       Defendant argues the disqualifying provision of section 1170.126 for those “armed
with a firearm or deadly weapon” requires a tethering felony, as the arming and use
enhancements codified at sections 12022 and 12022.5 require, and cannot be based on a
conviction solely premised on illegal firearm possession. This court rejected the identical
argument in both People v. Elder (2014) 227 Cal.App.4th 1308 (Elder) and People v.
Hicks (2014) 231 Cal.App.4th 275 (Hicks).

       The enhancement statute (§ 12022) provides in part that “a person who is armed
with a firearm in the commission of a felony or attempted felony shall be punished by an
additional and consecutive term of imprisonment . . . ” (id., subd. (a)(1)). The Supreme
Court has interpreted the words “in the commission of a felony” to require “that the
‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’
to that offense.” (People v. Bland (1995) 10 Cal.4th 991, 1002.) As we explained in
Hicks, being “armed” for purposes of the imposition of additional penalties pursuant to



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the enhancement provisions in section 12022 requires the defendant have the firearm
“ ‘available for use to further the commission of the underlying felony.’ ” (Hicks, supra,
231 Cal.App.4th at p. 283.)

       However, Hicks further explained that “unlike 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 ‘[d]uring the commission of’ the
current offense (italics added).” (Hicks, supra, 231 Cal.App.4th at pp. 283-284.) Hicks
concludes that such language means there must be a temporal nexus between the arming
and the underlying felony, but there need not be a facilitative nexus. (Id. at p. 284.)

       Likewise in Elder we stated that the illogic of defendant’s reasoning “rests on . . .
conflating the criterial definition of an ineligible offense (being armed during the
commission of such offense) with the derivative nature of the armed enhancement (which
requires being armed in the commission of an offense).” (Elder, supra, 227 Cal.App.4th
at p. 1313.) Other cases have reached the same conclusion. (See People v. Brimmer
(2014) 230 Cal.App.4th 782, 797 [and cases cited therein] (Brimmer).) Defendant does
not present any argument that convinces us these cases were wrongly decided.

       Defendant invokes the rule of lenity, arguing that “if the statute is in any way
ambiguous” the court must “apply the rule of lenity and construe the statute in his favor.”
Since we find nothing ambiguous in the meaning of being armed “[d]uring the
commission of the current offense” (§ 667, subd. (e)(2)(C)(iii)) or in the Reform Act’s
lack of a requirement for pleading and proof of ineligibility, the “ ‘rule of lenity’ ”
invoked by defendant has no relevance. (Elder, supra, 227 Cal.App.4th at p. 1315;
People v. Osuna (2014) 225 Cal.App.4th 1020, 1035 (Osuna).)




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                     II. Defendant Is Not Entitled to a Jury Trial

       Defendant contends the Sixth and Fourteenth Amendments to the United States
Constitution mandate that a jury find beyond a reasonable doubt that he was “armed with
a firearm” during the commission of the offense before he could be deemed ineligible for
resentencing because his conviction for possession of a firearm does not necessarily
entail a finding that he was armed. We disagree.

       In Guilford, supra, 228 Cal.App.4th at pages 662 to 663, we concluded: “This
contention already has been resolved against defendant. ‘[T]he United States Supreme
Court has already concluded that its opinions regarding a defendant’s Sixth Amendment
right to have essential facts found by a jury beyond a reasonable doubt do not apply to
limits on downward sentence modifications due to intervening laws.’ [Citations.] [¶]
Contrary to defendant’s view, nothing in Alleyne v. United States (2013) 570 U.S. ___
[186 L.Ed.2d 314] assists him. As described by our Supreme Court, in Alleyne, ‘the
United States Supreme Court held that the federal Constitution’s Sixth Amendment
entitles a defendant to a jury trial, with a beyond-a-reasonable-doubt standard of proof, as
to “any fact that increases the mandatory minimum” sentence for a crime.’ [Citation.]
The denial of a recall petition does not increase the mandatory minimum sentence for a
defendant’s crime.” (See Hicks, supra, 231 Cal.App.4th at p. 286 [the court properly
makes factual determinations for purposes of deciding eligibility for resentencing under
section 1170.126 ].) Nothing defendant argues persuades us otherwise.

                  III. There Is No Pleading and Proof Requirement

       Defendant next contends he is not ineligible for resentencing because an arming
allegation was not pleaded and proved in the underlying case. We disagree.

       “Several published cases have held that the Reform Act does not contain a
pleading and proof requirement with respect to factors that disqualify defendants from
resentencing . . . .” (People v. Chubbuck (2014) 231 Cal.App.4th 737, 745.) Indeed, we


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so held in Guilford, supra, 228 Cal.App.4th at page 659. There is an express pleading
and proof requirement for both the existence of prior strike convictions and disqualifying
factors in the initial sentencing of a new offense under the Reform Act. (Guilford, at
pp. 656-657, citing §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) There is no such
express provision in section 1170.126 for recall and resentencing of a strike conviction.
(Guilford, at p. 657.)

       Nor does the absence of a pleading and proof requirement violate defendant’s
constitutional rights to due process or a jury trial. (Brimmer, supra, 230 Cal.App.4th at
pp. 803-804.) Determining whether an inmate is eligible for resentencing under section
1170.126 is not analogous to provisions that enhance a defendant’s sentence beyond the
statutory maximum but provides for downward modification of the original sentence, so
factfinding in that proceeding does not implicate Sixth Amendment issues. (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-1304; Brimmer, supra, at
pp. 804-805.)

       Defendant argues that because the theory presented by the prosecutor at trial was
that defendant had constructive possession based on his being part of a “team” with the
other occupants of the car, the jury did not decide defendant was armed and there was no
reason for defendant to argue he was not armed. We have previously rejected the
argument that it would be improper for the trial court to find a defendant ineligible based
on facts for which there was no incentive to litigate in the underlying proceeding in the
absence of a pleading and proof requirement. (Elder, supra, 227 Cal.App.4th at p. 1316.)
In determining whether defendant is eligible for resentencing pursuant to section
1170.126, the theory of possession of a firearm does not matter; what matters is whether
there is substantial evidence in the record from which the trial court could reasonably find
that defendant was “armed with a firearm” during the commission of that offense.




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            IV. Substantial Evidence Supports the Trial Court’s Finding

       Defendant asserts there is insufficient evidence he was armed. Section 1170.126
does not define “armed with a firearm,” but section 1203.06, subdivision (b)(3) defines
the phrase as “to knowingly carry or have available for use a firearm as a means of
offense or defense.” At the time the voters approved Proposition 36, that phrase had been
judicially construed to mean that a defendant “is aware during the commission of the
offense of the nearby presence of a gun available for use offensively or defensively, the
presence of which is not a matter of happenstance.” (Brimmer, supra, 230 Cal.App.4th at
pp. 794-795, citing People v. Pitto (2008) 43 Cal.4th 228, 239-240; accord, People v.
Blakely (2014) 225 Cal.App.4th 1042, 1051 (Blakely).) Thus, for purposes of section
1170.126, “ ‘ “armed with a firearm” . . . mean[s] having a firearm available for offensive
or defensive use.’ ” (Brimmer, at p. 796.)

       We recognize that a person convicted of possession of a firearm is not necessarily
armed with the firearm in the commission of that offense. (Brimmer, supra,
230 Cal.App.4th at p. 797; Blakely, supra, 225 Cal.App.4th at p. 1052 [“A firearm can be
under a person’s dominion and control [(and thus possession)] without it being available
for use.”].) To date, the published opinions in which the courts of appeal have affirmed
denial of resentencing (or reversed a grant of resentencing) based on the defendant being
armed during the commission of an offense of being a felon in possession of a firearm
have involved a defendant with actual as opposed to constructive possession of a firearm.
(Hicks, supra, 231 Cal.App.4th at pp. 280-281 [evidence defendant carried backpack
containing gun into apartment]; Brimmer, supra, 230 Cal.App.4th at pp. 788, 799
[defendant held an unloaded shotgun]; Osuna, supra, 225 Cal.App.4th at p. 1030
[defendant “was actually holding a handgun”]; People v. White (2014) 223 Cal.App.4th
512, 525 [defendant was holding rolled-up pair of sweatpants with gun inside].) That
fact, however, does not render it impossible for someone with constructive possession of
a weapon to also be armed with a firearm. (See Blakely, supra, 225 Cal.App.4th at

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p. 1052 [A defendant “ ‘has constructive possession when the weapon, while not in his
actual possession, is nonetheless under his dominion and control, either directly or
through others.’ ”].)

       Thus, we turn to the evidence in the record to determine whether there is
substantial evidence from which the trial court could reasonably find that defendant was
“armed with a firearm” during the commission of his possession of the firearm. Here, the
evidence demonstrated a .44-caliber revolver was located under the front seat of the car
and at defendant’s feet, defendant attempted to kick the gun away to hide it when officers
approached, and ammunition for the gun was on the seat next to him.2 Given the relative
size of the car, the position of the gun relative to defendant, and the fact that defendant
attempted to move the gun with his foot to hide it from law enforcement, this comprises
substantial evidence that defendant was “aware during the commission of the offense of
the nearby presence of a gun available for use offensively or defensively, the presence of
which is not a matter of happenstance” (Brimmer, supra, 230 Cal.App.4th at pp. 794-
795), i.e., that he was armed with a firearm during the commission of his possession by a
felon of a firearm.

       Defendant’s reliance on People v. Sifuentes (2011) 195 Cal.App.4th 1410 is
unavailing. There, the court of appeal reversed Sifuentes’s conviction for felon in
possession of a firearm because there was insufficient evidence he constructively
possessed the gun that was found under a mattress in a motel room where he was arrested
because there was not substantial evidence he had a right to control the firearm. (Id. at
pp. 1417-1419, 1422.) Here, defendant was convicted of being a felon in possession of a




2 To the extent defendant argues the evidence regarding whether the gun could have
been pushed from the front is speculative, we need not address the issue, because even in
the absence of that evidence there is substantial evidence defendant was armed.


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firearm, and that conviction has previously been upheld on appeal. (People v. Pontod,
supra, C065925.) Therefore, Sifuentes is inapposite.

       Moreover, though defendant asserts there was conflicting evidence, the existence
of conflicting evidence “does not cast doubt on the trial court’s factual findings because
we review factual findings for substantial evidence.” (Hicks, supra, 231 Cal.App.4th at
p. 286.) Accordingly, it was proper for the trial court to determine defendant was
ineligible for resentencing pursuant to section 1170.126.

                                      DISPOSITION

       The order denying the petition for recall of defendant’s sentence is affirmed.




                                                        BUTZ                  , J.



We concur:



      RAYE                  , P. J.



      HULL                  , J.




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