Filed 2/16/16 P. v Rogers 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)
                                                            ----

THE PEOPLE,                                                                                  C075970

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM013236)

         v.

ELLIOTT LAMONT ROGERS,

                   Defendant and Appellant.


         Defendant Elliott Lamont Rogers appeals from the trial court’s order denying his
petition for recall and resentencing under the Three Strikes Reform Act of 2012 (the Act).
(Pen. Code, § 1170.126.)1
         We affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
                                Trial Evidence, Verdict, and Sentencing
         On November 24, 1999, defendant robbed a check cashing business in Chico.
During the robbery, defendant pointed a small handgun at the teller, donned a
“ ‘Scream’ ” mask, handed the teller a small black duffel bag, and told her to put money


1   Undesignated statutory references are to the Penal Code.

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from her drawer in the bag. She complied. After defendant left the business, the teller
saw him get into a maroon or burgundy vehicle and drive off. About 45 minutes later,
defendant was stopped by law enforcement while he was driving a vehicle matching the
description of the one used by the robber. United States currency matching the
denominations taken from the check cashing business were recovered from defendant’s
jacket pockets. During a search of defendant’s apartment, law enforcement found a black
“ ‘belly bag’ ” that contained a handgun and ammunition. A Scream mask was also
found in the apartment. The teller identified the mask and the bag as items used in the
robbery. Defendant’s fingerprints were found on the door to the check cashing business
and the teller identified defendant as the robber at trial. (People v. Rogers (May 15,
2003, C038965) [nonpub. opn.] slip. opn. at pp. 2-5 (Rogers).)
         A jury convicted defendant of second degree robbery (§ 211 -- count 1) and found
that he personally used a firearm in the commission of that offense (§§ 12022.5,
subd. (a)(1), 12022.53, subd. (b)). The jury also convicted defendant of possession of a
firearm by a felon (former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1)] -- count 2).
The trial court found that defendant had sustained three prior serious felony convictions
(§§ 667, subds. (a) & (b)-(i), 1170.12) and sentenced defendant to state prison for 64
years to life. (Rogers, p. 1.) This court affirmed the judgment on May 15, 2003. (Id. at
p. 2.)
                               The Petition for Resentencing
         On June 24, 2013, defendant filed a petition for resentencing under
section 1170.126. The People opposed the petition, arguing (1) section 1170.126 was not
intended to apply to third strikers who had been convicted of both a serious/violent felony
and a nonserious/nonviolent felony in their most recent case, and (2) an inmate is
statutorily ineligible for resentencing even for a nonserious/nonviolent felony conviction
if the inmate used or was armed with a firearm during the commission of that offense.



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       The trial judge that originally presided over the trial conducted an eligibility
hearing on the petition on November 21, 2013. At the outset of the hearing, defendant
conceded that he was ineligible for resentencing under section 1170.126 as to count 1,
robbery and personal use of a firearm; thus, he sought relief only as to count 2, felon in
possession of a firearm.
       Defense counsel conceded and the trial court found that the firearm in count 2 was
the same firearm used during the robbery and referenced in the firearm use enhancement
attached to count 1. Defendant does not challenge this factual finding in this appeal.
       After hearing argument, the trial court denied the petition on two grounds. First,
defendant was ineligible for resentencing as to count 2 because the firearm he was
convicted of possessing was also the firearm he used to commit the robbery. By finding
he personally used a firearm as to that offense, the jury necessarily found he was
“ ‘armed with a firearm’ ” in the commission of count 2, which disqualified that count
from sentence reduction under section 1170.126. Second, “as an alternative basis” for
ruling defendant ineligible, the court referenced the intent of the voters in enacting the
Act and the nature of defendant’s convictions. The court stated: “[F]or sure the initiative
was designed to protect people who write bad checks as their third offense or forgery or
petty theft with a prior, that they should be -- they should not be subject to the 25-to-life
sentence that Prop - that Three Strikes law used to require. [¶] In this case, [defendant],
had he just committed the ‘felon in possession of a firearm,” would be eligible, if that
was the only offense he was guilty of. But in -- based upon the context of when he
possessed it and why he possessed it at that point in time, I don’t think Prop. 36 as written
was designed to benefit him. That’s an alternative reason for the ruling.”
                                       DISCUSSION
       Defendant contends that the trial court’s first basis for finding him ineligible for
sentence reduction was legally incorrect, and the second basis was invalid because the
court did not hold a hearing on the issue or consider dangerousness factors.

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           I. Simultaneous Conviction of a Serious/Violent Felony Offense
                    and a Nonserious/Nonviolent Felony Offense
       The People assert that because defendant was simultaneously convicted of a
serious/violent felony offense and a nonserious/nonviolent felony offense, that he is
ineligible for resentencing. It appears that this is what the trial court may have meant
when, in stating its alternative basis for finding defendant ineligible, it indicated that
defendant might have been eligible if he had only been convicted of possession of a
firearm by a felon.
       After briefing was completed in this case, the California Supreme Court rejected
this theory of ineligibility and held that when a defendant’s current convictions involve a
serious/violent felony offense as well as a nonserious/nonviolent felony, a defendant may
be resentenced pursuant to section 1170.126 on the nonserious/nonviolent felony offense.
(People v. Johnson (2015) 61 Cal.4th 674, 679, 688.) Therefore, “post-Proposition 36, a
defendant convicted of a serious or violent felony and a felony that is neither serious nor
violent will receive a sentence of at least 25 years to life for the former and, absent a
statutory exception, a more lenient two-strikes sentence for the latter.” (Id. at p. 690,
italics added.) But as can be seen by the italicized portion of the quote from Johnson, a
statutory exception may still apply to disqualify an inmate. As the trial court ruled, an
exception applies here.
                          II. Firearm Use and Arming Exception
       Sections 1170.126, subdivision (e)(2), and 667, subdivision (e)(2)(C)(iii), operate
as an exception to resentencing a third striker to a second strike sentence for a current
offense that is a nonserious/nonviolent felony. Under these provisions, an inmate is
ineligible for resentencing if “[d]uring the commission of the current offense,” the
defendant “used” or was “armed with a firearm.”
       Defendant contends that he could only have been armed if an arming allegation
had been pleaded and proven beyond a reasonable doubt as to count two at his trial. He


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further argues that the applicable statutory language suggests that the arming exclusion
does not apply to possession offenses because the possession must be “ ‘tethered’ ” and
have some “ ‘facilitative nexus’ ” to a separate felony offense. Courts of appeal,
including this one, have rejected both arguments. (People v. Hicks (2014) 231
Cal.App.4th 275 (Hicks); People v. Elder (2014) 227 Cal.App.4th 1308 (Elder); People v.
Blakely (2014) 225 Cal.App.4th 1042 (Blakely); People v. Osuna (2014) 225 Cal.App.4th
1020 (Osuna); People v. White (2014) 223 Cal.App.4th 512 (White).) We reject
defendant’s arguments for the same reasons set forth in those cases.
       As an example, we discuss Osuna. In that case, the defendant was convicted of a
single offense, possession of a firearm by a felon (former § 12021, subd. (a)(1), now see
§ 29800, subd. (a)(1)), and sentenced to 25 years to life pursuant to the three strikes law.
(Osuna, supra, 225 Cal.App.4th at p. 1027.) The trial evidence established that a police
officer saw defendant holding a handgun as he fled on foot from a vehicle the officer had
been pursuing. A gun was found in an air conditioner duct at the house where he fled to.
One loaded magazine for the handgun was found in his flight path and another was found
in the vehicle defendant fled from. (Ibid.) Defendant appealed the trial court’s denial of
his petition for resentencing under the Act. In rejecting his claims on appeal, the Osuna
court succinctly stated, “[W]e hold[:] (1) disqualifying factors need not be pled and
proven to a jury beyond a reasonable doubt; (2) where there are facts in the record of
conviction that show an inmate was ‘armed with a firearm’—had the firearm available
for immediate offensive or defensive use—during the commission of his or her current
offense, the inmate is disqualified from resentencing under the Act even though he or she
was convicted of possessing the firearm, and not of being armed with it; and (3) being
‘armed with a firearm’ ‘during the commission of the current offense,’ for purposes of
the Act, does not require the possession be ‘tethered’ to, or have some ‘facilitative nexus’
to, an underlying felony.” (Id. at pp. 1026-1027.)



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       In arriving at its holding, the Osuna court concluded that the electorate intended
the term, “ ‘armed with a firearm,’ ” as used in the Act, to be defined as that term had
been previously defined by statute and the courts. (Osuna, supra, 225 Cal.App.4th at
p. 1029.) “ ‘[A]rmed with a firearm’ ” means “having a firearm available for use, either
offensively or defensively.” (Ibid.; accord, Hicks, supra, 231 Cal.App.4th at p. 283;
Blakely, supra, 224 Cal.App.4th at pp. 1051-1052; White, supra, 223 Cal.App.4th at
pp. 524-526.) Being armed with a firearm is different from simple possession of a
firearm, because simple possession requires only that the firearm be within the
defendant’s dominion and control and a firearm could be under one’s dominion and
control without it being available for use. (Osuna, at pp. 1029-1030.) The court
concluded that the trial evidence showed defendant had the firearm available for use
because he was holding the firearm when he got out of the car. (Id. at p. 1030.)
       Like defendant here, the defendant in Osuna conceded his possession of the
firearm, but argued that there must be an underlying felony to which the firearm
possession is “ ‘tethered’ ” or to which it has some “ ‘facilitative nexus’ ” and he could
not be armed with a firearm during the commission of possession of the same firearm.
Rejecting that argument, the Osuna court distinguished arming in the context of an
arming enhancement, which requires a “facilitative nexus,” from the statutory exception
to three strikes resentencing. (Osuna, supra, 225 Cal.App.4th at pp. 1030-1031.) Unlike
the arming enhancement, “which requires that a defendant be armed ‘in the commission
of’ a felony,” the 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.’ ” Only
a “temporal nexus” is required for the Act, not a facilitative one. (Id. at p. 1032; accord,
Hicks, supra, 231 Cal.App.4th at pp. 283-284.) The Osuna court reasoned that since the
issue it addressed was not the imposition of an enhancement’s additional punishment but
rather eligibility for reduced punishment, “the literal language of the Act disqualifies an



                                              6
inmate from resentencing if he or she was armed with a firearm during the unlawful
possession of that firearm.” (Osuna, at p. 1032.)
       The Osuna court went on to reject the notion that the arming had to be pleaded and
proved. (Osuna, supra, 225 Cal.App.4th at pp. 1033-1034; accord, Hicks, supra, 231
Cal.App.4th at p. 285; Blakely, supra, 225 Cal.App.4th at pp. 1048, 1057-1060; White,
supra, 222 Cal.App.4th at pp. 526-527.) Nor must the arming be proved to the trial fact
finder or the judge who reviews the petition beyond a reasonable doubt. (Osuna, at
pp. 1038-1040; accord, Elder, supra, 227 Cal.App.4th at pp. 1314-1315; Blakely, supra,
225 Cal.App.4th at pp. 1059-1063.) We agree with the reasoning in these cases on these
points as well.
       As we have noted, defendant conceded and the trial court found that the firearm
that was used during the robbery was the same firearm that was the subject of count 2,
possession of a firearm by a felon. Thus, defendant was not only armed with, but he also
used the firearm. And the jury found (albeit as an enhancement to count one) that the
evidence established defendant had used that firearm beyond a reasonable doubt.
Defendant was clearly disqualified under the exception for firearm use or arming and is
not eligible for a sentence reduction under the Act.
                                   III. Dangerousness
       Reading the trial court’s alternative basis for finding defendant ineligible as an
exclusion because the Act was not intended to benefit people like defendant, he contends
that the trial court could not validly make that finding without conducting a
dangerousness hearing. But as defendant concedes, the determination of whether a third
striker’s sentence should be reduced to a second strike sentence is a two-step process.
(People v. Quinones (2014) 228 Cal.App.4th 1040, 1043.) First, a trial court determines
if the inmate is eligible for sentence reduction. Second, if the inmate is found to be
eligible, the trial court applies certain factors to determine whether a sentence reduction
would pose an unreasonable risk of danger to public safety. (Ibid.) Having validly

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determined defendant was not eligible, no dangerousness hearing was required in
defendant’s case.
                                    DISPOSITION
      The order denying defendant’s petition for resentencing is affirmed.



                                                     MURRAY                  , J.


We concur:



      RAYE                , P. J.



      BLEASE              , J.




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