Filed 12/1/15 P. v. Vasquez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068959
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. MCR13764)
                   v.

JESUS MANUEL VASQUEZ,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.
         Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Lewis A. Martinez, Ivan P. Marks and Amanda D. Cary, Deputy Attorneys
General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
                                     INTRODUCTION
       The Three Strikes Reform Act of 2012 (Proposition 36) permits third strike
offenders serving indeterminate life sentences for crimes that are not serious or violent
felonies to petition for resentencing. (Pen. Code, § 1170.126 et seq.) 1 If a petitioning
offender satisfies the statute’s eligibility criteria, the petitioner will be resentenced as a
second strike offender “unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).)
       Following the enactment of Proposition 36, defendant filed a petition for
resentencing. The trial court, however, found defendant statutorily ineligible for
resentencing and denied the petition. On appeal, defendant contends the superior court
erred by denying his petition for resentencing, as unlawful possession of a firearm is not a
disqualifying offense under Proposition 36. We affirm.
                                            FACTS
       On October 1, 2002, defendant, a convicted felon, was twirling a handgun on his
finger when he accidentally shot Michael Gamboa in the leg. On February 5, 2003, a
jury found defendant guilty of unlawful possession of a firearm by a felon (count 2) and
unlawful possession of ammunition by a felon (count 3). The trial court sentenced
defendant as a third strike offender to a term of 25 years to life in prison.
       On May 8, 2013, defendant filed a petition for resentencing under Proposition 36.
Following a hearing on defendant’s petition, the superior court found defendant
statutorily ineligible for resentencing on the basis of the fact he was armed during the
commission of his unlawful possession of a firearm offense. This appeal followed.




1      Unless otherwise indicated, all statutory references are to the Penal Code.


                                               2.
                                       DISCUSSION
       Defendant argues his conviction for unlawful possession of a firearm does not
disqualify him from resentencing under Proposition 36, as the conviction was not
“imposed for” any of the disqualifying offenses enumerated within Proposition 36. We
disagree.
       Under Proposition 36, an inmate is not eligible for resentencing if the inmate’s
current conviction was “imposed for any of the offenses appearing in clauses (i) to (iii),
inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or
clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12.” (§ 1170.126, subd. (e)(2).) Among the crimes covered under those
clauses are any offenses where the defendant, during the commission of the offense,
“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).) Thus, in People v. Osuna (2014) 225 Cal.App.4th 1020, 1029 (Osuna),
we held an inmate is statutorily ineligible for resentencing if the inmate was armed with a
firearm during the commission of his or her current offense.
       While defendant acknowledges this court’s holding in Osuna, as well as similar
holdings in this court’s opinions in People v. White (2014) 223 Cal.App.4th 512,
People v. Blakely (2014) 225 Cal.App.4th 1042, and People v. Elder (2014) 227
Cal.App.4th 1308, defendant contends those cases were wrongly decided and invites us
to revisit their holdings in the instant case. We decline to do so. All the arguments
advanced by defendant are addressed and rejected in this court’s decision in Osuna, and
we find those rejections apply with equal force to the arguments in this case.
       Most specifically, defendant devotes much of his brief to arguing that unlawful
possession of a firearm is not an enumerated offense under Proposition 36, while being
armed with a firearm is not an offense at all, so his current sentence was not “imposed
for” any enumerated offense, even if he was armed. We discussed an identical argument

                                              3.
in great detail in Osuna, and found an offense committed while armed with a firearm is a
disqualifying offense within the meaning of section 1170.126, subdivision (e)(2).
(Osuna, supra, 225 Cal.App.4th at pp. 1022-1038.)
       Defendant also contends that his interpretation of Proposition 36 is favored under
the rule of lenity. We rejected this argument in Osuna as well, noting the rule of lenity
only applies to cases involving egregious statutory ambiguity, whereas in this case, “[a]n
examination of the statutory scheme as a whole supports the conclusion the phrase
‘[d]uring the commission of the current offense, the defendant ... was armed with a
firearm,’ as used in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision
(c)(2)(C)(iii), and as disqualifies an inmate from resentencing pursuant to section
1170.126, subdivision (e)(2), extends to situations in which the defendant was convicted
of violating section 12021 but also had the firearm he or she was convicted of possessing
available for use, either offensively or defensively.” (Osuna, supra, 225 Cal.App.4th at
p. 1035.)
       As we remain firm in our belief that Osuna accurately states the law with regard to
disqualifying offenses under Proposition 36, defendant’s claims to the contrary must be
rejected.
                                         DISPOSITION
       The judgment is affirmed.




                                             4.
