Filed 1/25/16 P. v Garcia CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




THE PEOPLE,                                                          B265149
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. KA031564)

         v.

JAMES GREGORY GARCIA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
         Jonathan B. Steiner, Executive Director for California Appellate Project and
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria
B. Wilson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.
       In 1996, appellant James Gregory Garcia was convicted of possession of a
firearm by a felon, and was sentenced to a term of 25 years to life as a “three
strike” offender. In the underlying action, the trial court denied appellant’s motion
under Penal Code section 1170.126 to be resentenced pursuant to the Three Strikes
Reform Act of 2012 (Reform Act).1 We reject his challenge to that ruling and
affirm.


       RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
      In 1996, appellant was charged with being a felon in possession of a firearm
(former § 12021, subd. (a)(1)).2 Accompanying the charge were allegations that
appellant had suffered two prior convictions constituting strikes under the “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
      At trial, the prosecution presented evidence that on March 31, 1996, Los
Angeles County Sheriff’s Department deputy sheriffs responded to a call that
someone was in a house “known to be for sale and unoccupied.” Inside the house,
the deputies found appellant lying on the living room floor, one or two feet from a
duffle bag. Appellant told the deputies that his duffle bag contained his rental
agreement for the house. In searching the bag, the deputies found no rental
agreement, but discovered a semi-automatic pistol. Appellant told the deputies that
he had found the pistol a week earlier. Inside appellant’s wallet, the deputies
found a magazine containing two live rounds. The magazine fitted into the pistol.
      On July 26, 1996, a jury found appellant guilty of being a felon in
possession of a firearm, and found true the allegations that he had suffered


1     All further statutory citations are to the Penal Code.
2     The offense of being a felon in possession of a firearm is now codified in section
29800, subdivision (a)(1).



                                              2
convictions for voluntary manslaughter in 1980 and residential burglary in 1987.
The trial court sentenced appellant to a term of 25 years to life under the Three
Strikes law.
      In 2012, the electorate enacted the Reform Act by approving Proposition 36.
(People v. Yearwood (2013) 213 Cal.App.4th 161, 169-170.) The Reform Act
amended the Three Strikes law to provide that absent specified exceptions, an
offender with two or more prior strikes is to be sentenced as a two strike offender
unless the new offense also is a strike, that is, a serious or violent felony.3 (See
ibid.) The Reform Act also added section 1170.126, which creates a post-
conviction resentencing proceeding for specified inmates sentenced under the prior
version of the Three Strikes law. (Ibid.) Under that statute, a defendant sentenced
as a three strike offender may petition for recall of the sentence and for
resentencing, but is subject to certain eligibility criteria. (§ 1170.126, subd. (e).)
      In December 2012, appellant filed a petition for resentencing pursuant
section 1170.126. On April 22, 2015, the trial court denied the petition with
prejudice, concluding that appellant was ineligible for resentencing because he was
armed with a firearm during his commission of the offense of being a felon in
possession of a firearm (§§ 667, subd. (e)(2)(C)(iii), 1170.126, subd. (e)(2)). This
appeal followed.
                                    DISCUSSION
      Appellant contends the trial court erred in finding him ineligible for
resentencing under an exclusion that applies if “[d]uring the commission of the
current offense, [that is, the offense which the resentencing petition targets] the


3     Generally, an offense is a “‘strike’” if it is either a “‘violent felony’” under
section 667.5, subdivision (c), or a “‘serious felony’” under section 1192.7,
subdivision (c). (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1525.)


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defendant . . . was armed with a firearm or deadly weapon . . . .” (§§ 667, subd.
(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2); see People v.
Bradford (2014) 227 Cal.App.4th 1322, 1327 (Bradford).) Appellant argues that
the exclusion should not be construed “so as to render ineligible for a sentence
recall anyone who committed a crime [of being a felon in possession of a firearm]
. . . simply because it includes access to a weapon, without requiring that such
access be for the purpose of furthering another criminal act.” As explained below,
we reject his contention.4
      The key issue before us concerns the circumstances under which the offense
of being a felon in possession of a firearm is subject to the eligibility exclusion
relating to “armed” offenders. Generally, courts interpreting the term “armed” in
the exclusion have sought guidance from People v. Bland (1995) 10 Cal.4th 991
(Bland), which examined a sentencing enhancement set forth in section 12022,
subdivision (a), applicable to defendants “‘armed with a firearm in the commission


4      To the extent appellant presents an issue of statutory interpretation, our
inquiry applies established principles. “‘In interpreting a voter initiative like [the
Reform Act], we apply the same principles that govern statutory construction.
[Citation.]’ [Citation.] ‘“The fundamental purpose of statutory construction is to
ascertain the intent of the lawmakers so as to effectuate the purpose of the law.
[Citations.]”’ [Citation.] ‘In determining intent, we look first to the words
themselves. [Citations.] When the language is clear and unambiguous, there is no
need for construction. [Citations.] When the language is susceptible of more than
one reasonable interpretation, however, we look to a variety of extrinsic aids,
including the ostensible objects to be achieved, the evils to be remedied, the
legislative history, public policy, contemporaneous administrative construction,
and the statutory scheme of which the statute is a part. [Citations.]’ [Citation.]
We also ‘“refer to other indicia of the voters’ intent, particularly the analyses and
arguments contained in the official ballot pamphlet.” [Citation.]’ [Citation.]”
(People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1014
(Cervantes).)


                                            4
or attempted commission of a felony . . . .’” (Bland, supra, 10 Cal.4th at p. 998.)
Our Supreme Court concluded that under the enhancement, the term “armed”
means that the defendant had the firearm “available for offensive or defensive
use.” So understood, the term “armed” encompasses unloaded and inoperable
firearms, as such weapons that “create[] a risk of harm because [their] passive
display ‘may stimulate resistance.’” (Id. at pp. 1004-1006, quoting People v.
Nelums (1982) 31 Cal.3d 355, 360.) The court further concluded that the
enhancement also demands the satisfaction of certain requirements beyond the
mere existence of arming, stating: “[B]y specifying that the added penalty applies
only if the defendant is armed with a firearm ‘in the commission’ of the felony
offense, [the enhancement] implicitly requires both that the ‘arming’ take place
during the underlying crime and that it have some ‘facilitative nexus’ to that
offense.” (Bland, supra, 10 Cal.4th at p. 1002.)
      In construing the eligibility exclusion relating to “armed” offenders, our
focus is on the crime of being a felon in possession of a firearm. “The elements of
this offense are conviction of a felony and ownership or knowing possession,
custody, or control of a firearm. [Citations]. ‘A defendant possesses a weapon
when it is under his dominion and control. [Citation.] A defendant has actual
possession when the weapon is in his immediate possession or control. He has
constructive possession when the weapon, while not in his actual possession, is
nonetheless under his dominion and control, either directly or through others.
[Citations.]’ [Citation.] ‘Implicitly, the crime is committed the instant the felon in
any way has a firearm within his control.’ [Citation.]” (People v. Osuna (2014)
225 Cal.App.4th 1020, 1029-1030 (Osuna).) As explained in Osuna, because one
may possess a gun without it being available for one’s use, a defendant may
commit the offense of being a felon in possession of a firearm without having
satisfied the definition of “‘armed’” set forth in Bland. (Id. at p. 1030.)


                                            5
      Numerous courts have determined that under the Reform Act, the offense of
being a felon in possession of a firearm falls under the pertinent eligibility
exclusion when the possession in question amounted to arming, as specified in
Bland. (People v. White (2014) 223 Cal.App.4th 512, 524-525; Cervantes, supra,
225 Cal.App.4th at pp. 1012-1018; Osuna, supra, 225 Cal.App.4th at pp. 1028-
1038; People v. Blakely (2014) 225 Cal.App.4th 1042, 1051-1057; People v.
Brimmer (2014) 230 Cal.App.4th 782, 793-799; People v. Hicks (2014) 231
Cal.App.4th 275, 283-284 (Hicks); see People v. Elder (2014) 227 Cal.App.4th
1308, 1312-1314 & fn. 6 [agreeing with Osuna].) Instructive discussions of the
exclusion are found in Osuna, Hicks, and Elder.
      In Osuna, the defendant drove his car at an excessive speed and refused to
yield to a police officer who tried to pull him over. (Osuna, supra, 225
Cal.App.4th at pp. 1027.) The defendant eventually stopped, left his car while
holding a gun, and fled into a house. (Ibid.) After arresting the defendant, officers
found an unloaded nine-millimeter gun hidden in the house and nine-millimeter
ammunition in the car. (Ibid.) The defendant was convicted of being a felon in
possession of a firearm and obstructing a police officer, and was sentenced as a
three strike offender. (Id. at pp. 1026-127.)
      When the defendant sought resentencing, the trial court determined that he
was ineligible for relief because he was armed with a firearm during the
commission of his “current offense,” that is, being a felon in possession of a
firearm. (Osuna, supra, 225 Cal.App.4th at p. 1028.) In affirming that ruling, the
appellate court concluded that the offense did not, by itself, render the defendant
ineligible absent a showing that he was armed, as defined in Bland, viz., that the
firearm was available to him for offensive or defensive use. (Id. at p. 1030.) The
court recognized that “[h]aving a gun available does not further or aid in the
commission of the crime of possession of a firearm by a felon,” but concluded that


                                            6
the exclusion mandates no showing that the arming promoted the “‘current
offense.’” (Id. at p. 1032.) The court determined that the exclusion demands only
a temporal nexus -- but no facilitative nexus -- between the arming and the offense
of being a felon in possession of a firearm, as the exclusion merely requires that
the arming occur “during” the commission of the offense, unlike the enhancement
construed in Bland, which requires that the arming occur “in” the commission of
the offense. (Id. at pp. 1032-1033.)
          In Hicks, police officers frisked the defendant after he appeared to throw
away a bag containing drugs, and found he had several .380 caliber bullets.
(Hicks, supra, 231 Cal.App.4th at pp. 280-281.) When the officers searched a
nearby apartment, they found a backpack containing a loaded .380 caliber gun.
(Ibid.) A witness told the officers that the defendant had carried the backpack into
the apartment. (Ibid.) The defendant was convicted of possession of a firearm as a
felon and sentenced as a three strike offender on the basis of that offense. (Id. at
p. 279.) Later, the trial court rejected the defendant’s petition for resentencing,
concluding that he was armed with a firearm when he committed the offense of
possessing a firearm as a felon. (Id. at pp. 279-280, 284.) The appellate court
affirmed that ruling, applying an interpretation of the exclusion identical to that set
forth in Osuna. (Id. at pp. 283-284.) In construing the exclusion, the court
rejected the defendant’s contention that it required the existence of an “underlying
felony to which the arming is ‘tethered.’” (Id. at p. 283.) The court explained that
although the contention would be correct if directed at the arming enhancement
discussed in Bland, it failed in light of the plain language of the exclusion, which
concerns eligibility for reduced punishment. (Ibid.) As the court noted, the
exclusion requires no facilitative nexus between the arming and any offense.
(Ibid.)
          In Elder, police officers executing a search warrant for an apartment found


                                              7
the defendant standing outside the apartment. (Elder, supra, 227 Cal.App.4th at
p. 1317.) The defendant admitted that he lived there. (Ibid.) Inside the apartment,
the officers discovered two guns and a photo of the defendant holding one of them.
(Ibid.) After being convicted of being a felon in possess of a firearm, he was
sentenced as a three strike offender. (Id. at p. 1311.) Following the denial of his
petition for resentencing, he contended on appeal that under the exclusion,
“ineligibility for resentencing for being ‘armed’ . . . require[s] something beyond
the substantive offense of possession itself,” relying on decisions interpreting the
enhancement discussed in Bland. (Id. at p. 1312.) In affirming the denial of the
petition, the appellate court rejected that contention, stating: “The illogic of this
line of reasoning rests on its 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).” (Id. at pp. 1312-1313.)
      Here, the record establishes that appellant was armed with a firearm -- that
is, had a gun available to him for offensive or defensive use -- during his
possession of the firearm as a felon.5 The evidence submitted in connection with
appellant’s petition unequivocally showed that when detained, appellant was less
than two feet from a gun in his duffle bag, that he admitted possession of the gun,


5       As the resentencing provisions of section 1170.126 do not require that the
eligibility facts have been resolved by the verdicts or special findings rendered at
trial, many decisions have concluded that the trial court may independently
examine the record of conviction in order to make determinations regarding those
facts. (White, supra, 223 Cal.App.4th at pp. 526-527; Osuna, supra, 225
Cal.App.4th at p. 1020; People v. Manning (2014) 226 Cal.App.4th 1133, 1139-
1144; Elder, supra, 227 Cal.App.4th at pp. 1314-1316; Bradford, supra, 227
Cal.App.4th at pp. 1338-1340; Brimmer, supra, 230 Cal.App.4th 782, 799-801;
Hicks, supra, 231 Cal.App.4th at p. 275.)


                                             8
and that his wallet contained a loaded magazine fitting the gun. Appellant was
thus armed with a firearm, as specified in Bland. (See Cervantes, supra, 225
Cal.App.4th at pp. 1011-1018 [defendant’s offense of being a felon in possession
of a firearm rendered him ineligible for resentencing under the Reform Act when
the evidence showed that at the time of appellant’s arrest, his gun was eight feet
from him in his wife’s purse].) 6
      Appellant contends the pertinent exclusion, viewed in the context of the
Reform Act, must be interpreted to require a facilitative nexus between arming and
an offense independent of the crime of being a felon in possession of a firearm.
Under the Reform Act, subdivision (e)(2) of section 1170.126 provides that a
defendant is not eligible for resentencing if his or her current sentence was
imposed for an offense appearing in three provisions stated in materially identical
terms in both sections 667 and 1170.12 (§§ 667, subd. (e)(2)(C)(i) - (iii), 1170.12,
subd. (c)(2)(C)(i)-(iii).) Of those three provisions, two enumerate particular
offenses rendering a defendant ineligible for resentencing. (§§ 667, subd.
(e)(2)(C)(i) - (ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) The remaining provision, which
incorporates the exclusion at issue here, states that the defendant is ineligible if:
“During the commission of the current offense, the defendant used a firearm, was
armed with a firearm or deadly weapon, or intended to cause great bodily injury to
another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
      Appellant maintains that the structure of the three provisions establishes that
the pertinent exclusion applies only when the arming is related to, or promotes, an


6     Appellant suggests that he was effectively unarmed when arrested, as his
opening brief notes that at the hearing on the resentencing petition, his counsel
argued that the gun was inoperable. However, any such contention fails in light of
Bland. (Brimmer, supra, 230 Cal.App.4th at p. 799.)


                                             9
offense other than being a felon in possession of a firearm. He argues: “Where the
statute is meant to exclude specific offenses entirely, it so states, but where it is
meant to exclude an offense only if something beyond its mere commission occurs,
it states ‘during the commission of’ the offense something else happens.” He
further asserts that the factors identified in the third provision “must attach to the
current offense as an addition and not just be an element of the current offense,”
and that the phrase “‘during the commission of the current offense’” makes sense
only if “there is another offense to which the arming attaches.” (Italics deleted.)
We disagree.
        Although the third provision specifies circumstances rendering the current
offense ineligible for resentencing, nothing in it suggests that those circumstances
must attach to a crime other than the current offense. As noted in Bradford, the
provision, on its face, refers to “facts attendant to commission of the actual
offense,” that is, the offense for which the defendant seeks resentencing.
(Bradford, supra, 227 Cal.App.4th at p. 1332.) The provision thus encompasses
the offense of being a felon in possession of a firearm when the manner in which
that crime was committed involved arming.7


7      In a related contention, appellant maintains that the word “during” in the
eligibility exclusion must be construed as having the same meaning as the word
“in,” as used in the enhancement construed in Bland. To support that contention,
appellant notes that courts have sometimes interpreted the word “in” to express a
purely temporal relationship. He directs our attention to People v. Poroj (2010)
190 Cal.App.4th 165, 176 and People v. Valdez (2010) 189 Cal.App.4th 82, 90,
which examined an enhancement stated in section 12022.7, subdivision (a),
applicable to defendants who personally inflict great bodily injury “in the
commission of a felony or attempted felony . . . .” In each case, appellant argues,
the court interpreted the word “in” to convey a temporal relationship between the
criminal conduct and the injury. (Poroj, supra, 190 Cal.App.4th at pp. 172-176;
Valdez, supra, 189 Cal.App.4th at p. 90.)
(Fn. continued on next page.)


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      Appellant also contends that so construing the eligibility exclusion would
frustrate the goals of Proposition 36. He argues that “the purpose of Proposition 36
was to give lesser sentences to the less dangerous felons while making sure that the
truly dangerous felons were kept behind bars. . . . Having a weapon readily
available for use is generally not considered dangerous; it is a right protected by
the federal constitution. It only becomes dangerous when it might facilitate a
crime, when it might be used for violence.” However, the election materials
relating to Proposition 36 state that it was not intended to afford relief to offenders
who committed “‘gun-related felonies’” or whose third strike “‘involved firearm
possession.’” (Cervantes, supra, 225 Cal.App.4th at p. 1016, italics deleted.) As
explained in Elder, although “possession of a gun of itself is not criminal, a felon’s
possession of a gun is not a crime that is merely malum prohibitum. . . . ‘[P]ublic
policy generally abhors even momentary possession of guns by convicted felons
who, the Legislature has found, are more likely to misuse them.’ [Citation.]
Therefore, even if the great majority of commitments for unlawful gun possession
come within our interpretation of this eligibility criterion, it would not run afoul of
the voters’ intent.” (Elder, supra, 227 Cal.App.4th at p. 1314, quoting People v.
Pepper (1996) 41 Cal.App.4th 1029, 1037-1038.) In sum, the trial court did not err
in denying appellant’s petition for recall of his sentence and resentencing.


        Appellant’s contention fails, as nothing within the eligibility exclusion
suggests that the word “during” there has the complex meaning attributed to the
word “in” in Bland, which viewed “in” as conveying both a temporal and a
facilitative relationship. The word “during” ordinarily has a purely temporal
meaning. (Merriam-Webster’s Collegiate Dict. (1995) p. 360 [defining “during” to
mean “throughout the duration of”].) The fact that the word “in” sometimes has a
purely temporal meaning does not show that the word “during,” as found in the
eligibility exclusion, expresses a facilitative relationship in addition to a temporal
one.


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                                 DISPOSITION
     The order of the trial court is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                MANELLA, J.


We concur:




EPSTEIN, P. J.




WILLHITE, J.




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