Filed 4/19/16 P. v. Miller CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068195

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE195569)

HUTTON MILLER,

         Defendant and Appellant.


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

Danielsen, Judge. Affirmed.

         Jill M. Klein, 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, A Natasha Cortina, Annie

Featherman Fraser and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and

Respondent.
       Hutton Miller filed a petition for resentencing under Proposition 36. The trial

court denied the petition on the grounds that he was ineligible for resentencing because

he was "armed with a firearm" during the commission of his current offense. On appeal,

defendant contends the court erred in denying his petition to reduce his sentence. We

affirm the order.

                    FACTUAL AND PROCEDURAL BACKGROUND

       In 1999, the police executed a search warrant at defendant's home arising from

allegations that he committed sex crimes against multiple victims. When defendant

answered his door and stepped outside, the police arrested him. Defendant told the police

that he had a handgun on his bedroom nightstand for self-defense. The police then found

a loaded .357-magnum handgun on defendant's nightstand. Defendant later pled guilty to

being a felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)(1))1 and

admitted that he had three prior serious or violent felony convictions (§§ 667, subd.

(e)(2), 1170.12, subd. (c)(2)). Under the three strikes law, the trial court sentenced

defendant to an indeterminate term of 25 years to life in state prison.

       After voters approved Proposition 36, the Three Strikes Reform Act of 2012 (the

Act), defendant filed a petition under section 1170.126, subdivision (b), requesting that

the court resentence him to a determinate term. The trial court denied defendant's


1      Penal Code section 12021, subdivision (a)(1), has since been repealed and
reenacted without substantive change as section 29800, subdivision (a)(1). All statutory
references are to the Penal Code.

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petition on the basis that he was "armed with a firearm" during the commission of his

third strike offense.

                                       DISCUSSION

       On appeal, defendant argues the trial court erred in denying his resentencing

petition because (1) the "armed" exclusion requires an additional offense be tethered to

the current offense; (2) the court improperly relied on the record of conviction to make its

determination; (3) the record does not support a finding that defendant was "armed"

within the meaning of the Act; and (4) the People did not plead and prove the "armed"

exclusion. For reasons stated below, we find that none of defendant's claims have merit.

                                   I. Standards of Review

       Questions of statutory interpretation are subject to de novo review on appeal.

(People v. Bradford (2014) 227 Cal.App.4th 1322, 1332.) We review a trial court's

factual findings for substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

                              II. Overview of Proposition 36

       In November 2012, California voters approved Proposition 36, which amended

sections 667 and 1170.12 and added section 1170.126. (People v. Yearwood (2013) 213

Cal.App.4th 161, 167-168 (Yearwood).) Under section 1170.126, the three strikes law

was changed by reserving life sentences for cases where the current crime is a serious or

violent felony or the prosecution has pled and proved an enumerated disqualifying factor.

(Ibid.) In all other cases, the recidivist will be sentenced as a second strike offender.

(Ibid.; §§ 667, 1170.12.)

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       The Act also created a postconviction release proceeding whereby a prisoner

serving an indeterminate life sentence under the three strikes law for a third conviction

that is not a serious or violent felony may be resentenced as a second strike offender.

Resentencing relief is subject to three specified eligibility criteria as well as certain

disqualifying exclusions. The court may nonetheless deny relief if it determines that the

resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126;

Yearwood, supra, 213 Cal.App.4th at pp. 167-168.)

       Here, the parties agree defendant's commitment offense for being a felon in

possession of a firearm was not a serious or violent felony. At issue in this appeal is the

"armed with a firearm" disqualification exclusion, which renders a 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).)

                          III. A Tethering Offense Is Not Required

       Defendant first contends the language " 'during the commission of the current

offense' " in the Act requires that the arming be tethered to an additional offense which

does not include possession. However, our court previously rejected this claim in People

v. White (2014) 223 Cal.App.4th 512, 527 (White). Other courts have agreed. (See

People v. Brimmer (2014) 230 Cal.App.4th 782, 797; People v. Osuna (2014) 225

Cal.App.4th 1020, 1032; People v. Hicks (2014) 231 Cal.App.4th 275, 283-284 (Hicks).)



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We reaffirm that a tethering offense is not required; it is sufficient that defendant's

conviction offense was for the unlawful possession of a firearm.

       Defendant argues that People v. Bland (1995) 10 Cal.4th 991 requires a facilitative

nexus between the arming and the underlying felony and that being armed with a firearm

does not facilitate unlawful possession of the firearm. Defendant's reliance on Bland is

misplaced. Bland, unlike here, involved a section 12022 arming enhancement, which

requires a defendant to have a firearm available for use to further the commission of the

underlying felony to qualify as being "armed." (Bland, at p. 999.) "However, unlike

section 12022, which requires that a defendant be armed 'in the commission of' a felony

for additional punishment to be imposed . . . , the 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 . . . ." (Hicks, supra, 231 Cal.App.4th at pp. 283-284.)

The Act's use of the word "during" requires a temporal nexus, not a facilitative one. (Id.

at p. 284.)

       The temporal nexus requirement is met here because the arming and the

possession were simultaneous. Defendant was home when police found the loaded pistol

on his bedroom nightstand, and defendant stated the gun was for self-defense. Thus,

defendant unlawfully possessed a weapon with which he was also armed because it was

available to him for defensive use.




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             IV. The Trial Court Properly Relied on the Record of Conviction

       Defendant next asserts the trial court erred in determining he was ineligible for

relief because it looked past the adjudicated elements of the offense and, instead, relied

on the record of conviction to find he was "armed" during the commission of the offense.

We reject this contention, as it is well settled that a trial court may look to the entire

record of conviction to determine if a defendant was "armed." (See, e.g., Hicks, supra,

231 Cal.App.4th at p. 285 [the trial court's factual determination is not limited by a

review of the particular statutory offenses for which a defendant's sentence was

imposed]; White, supra, 223 Cal.App.4th at pp. 524-525; People v. Bradford, supra, 227

Cal.App.4th at p. 1327; People v. Blakely (2014) 225 Cal.App.4th 1042, 1048-1049;

People v. Estrada (2015) 243 Cal.App.4th 336, 340.)

       Here, the trial court looked to the preliminary hearing transcript to determine

whether defendant was "armed" within the meaning of section 1170.126, subdivision

(e)(2). Because a preliminary hearing transcript is part of the record of conviction, the

trial court's reliance on it was proper. (See People v. Reed (1996) 13 Cal.4th 217, 223

[holding that a preliminary hearing transcript is part of the record of conviction]; People

v. Estrada, supra, 243 Cal.App.4th at p. 340 [trial court's reliance on preliminary hearing

transcript was appropriate because it was part of the record of conviction].)

       We reject defendant's assertion that a trial court's reliance on the record of

conviction is "no longer tenable" under Descamps v. United States (2013) __ U.S. __

[133 S.Ct. 2276]. Defendant insists that under Descamps, the trial court violated his

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Sixth Amendment and due process rights when it found him ineligible for relief because

it found new facts from the record of conviction that were not adjudicated.

       In Descamps, the United States Supreme Court considered whether Apprendi2

applied to sentencing enhancements under the Armed Career Criminal Act (ACCA) (18

U.S.C., § 924(e)). (Descamps, supra, 133 S.Ct. 2276.) The defendant in Descamps faced

a minimum sentence of 15 years because he had a prior burglary conviction in California.

However, the California burglary statute was broader than the burglary definition set

forth under the ACCA, which requires an additional element. To determine whether the

additional element was satisfied, the district court looked to the facts contained in the

transcript of his plea colloquy. Finding the element satisfied based on the prosecutor's

statements, the court increased the defendant's sentence. (Descamps, supra, 133 S.Ct. at

p. 2282.)

       The Descamps court held the district court's factfinding of priors based on the

record of conviction violated the Sixth Amendment under Apprendi, noting that such

factfinding would "raise serious Sixth Amendment concerns if it went beyond merely

identifying a prior conviction." (Descamps, supra, 133 S.Ct. at p. 2288.)

       However, Apprendi, and by extension, Descamps, are not applicable in the context

of a petition for resentencing under section 1170.126. A determination that a prior


2      In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
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conviction qualifies as a strike increases punishment. However, a determination that a

petitioner is eligible for resentencing does not; section 1170.126 is an ameliorative

provision that can only decrease a defendant's sentence.

       Accordingly, we hold that the court did not err in relying on the record of

conviction, namely, the preliminary hearing transcript, to determine whether defendant

was "armed" under the Act.

    V. The Record of Conviction Supports the Finding that Defendant Was "Armed"

       Defendant contends the record did not support a finding he was "armed" with a

firearm. We disagree.

       Courts construe "armed with a firearm" within the meaning of the Act as having a

firearm available for use, either offensively or defensively. (People v. Brimmer, supra,

230 Cal.App.4th at p. 795.) As our Supreme Court has explained, " '[i]t is the

availability—the ready access—of the weapon that constitutes arming.' [Citation.]"

(People v. Bland, supra, 10 Cal.4th at p. 997.)

       A defendant can be "armed with a firearm," so as to be disqualified from

resentencing under the Act, even if he did not have the firearm on his person. (People v.

Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 985 [affirming the defendant was

"armed" when he was in his kitchen at the time police found one shotgun in a bedroom

and other firearms in a closet]; see People v. Superior Court (Cervantez) (2014) 225

Cal.App.4th 1007, 1011-1012 [affirming that the defendant was "armed" when he was



                                             8
standing inside his doorway and police discovered a loaded gun inside the defendant's

wife's purse in an adjacent bedroom].)

        In People v. Elder (2014) 227 Cal.App.4th 1308, the defendant was outside his

front door when police executed a search warrant inside his apartment and found one

loaded gun on a shelf of an entertainment center and another gun in an unlocked safe in a

bedroom. (Id. at p. 1317.) The defendant's commitment offense was for being a felon in

possession of a firearm. (Id. at p. 1311.) The court affirmed the defendant was "armed"

and therefore ineligible for resentencing under the Act. (Id. at p. 1317.)

        Additionally, in Hicks, supra, 231 Cal.App.4th 275, the defendant was by the front

gate of an apartment complex when police searched the apartment of the person

defendant had visited. Inside, officers found a backpack containing a loaded pistol. (Id.

at p. 280.) The defendant was sentenced under the three strikes law for being a felon in

possession of a firearm. (Id. at p. 279.) The court affirmed the denial of the defendant's

petition for resentencing under the Act because he was "armed with a firearm." (Id. at p.

284.)

        Here, the trial court concluded from the record of conviction that defendant was

armed. When the police knocked on defendant's door and served the search warrant,

defendant stepped outside his house. Defendant lived alone. After defendant disclosed

that he had a gun inside for self-defense, the police found defendant's loaded .357-

magnum pistol on his bedroom nightstand. This evidence is sufficient to support the

court's finding that the gun was readily accessible to defendant as to constitute being

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"armed" under the Act. Thus, defendant's commitment offense was not an eligible

offense for resentencing.

          VI. The Prosecutor Did Not Need to Plead and Prove the "Armed" Exclusion

       Defendant's final contention is that the prosecutor was required to plead and prove

that defendant was "armed with a firearm" before he could be disqualified from relief

under the Act. However, we previously considered and rejected this precise issue in

People v. White, supra, 223 Cal.App.4th at pages 526-527. We reasoned that "nothing in

the language of section 1170.126[, subdivision ](e)(2) or any of the other subdivisions of

section 1170.126 governing an inmate's petition for resentencing relief under the Reform

Act references the plead-and-prove language." (Ibid.; see People v. Bradford, supra, 227

Cal.App.4th 1322; People v. Elder, supra, 227 Cal.App.4th at pp. 1314-1315.) The

pleading and proof language applies only to the prospective part of section 1170.126, not

the retrospective part of the Act that governs an inmate's petition for resentencing.

(White, at p. 527.)




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                               DISPOSITION

      The order is affirmed.




                                             HALLER, J.

WE CONCUR:



NARES, Acting P. J.



MCDONALD, J.




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