Filed 8/20/14 P. v. Lewis CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                        E058643

v.                                                                       (Super.Ct.No. RIF096243)

ANTHONY LEE LEWIS,                                                       OPINION

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Reversed with directions.

         Paul E. Zellerbach, District Attorney, Emily R. Hanks, Deputy District Attorney,

for Plaintiff and Appellant.

         Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant

and Respondent.

         This is plaintiff and appellant the People’s appeal from the superior court’s order

granting defendant and respondent Anthony Lee Lewis’s petition for recall of sentence



                                                             1
under Proposition 36 (Pen. Code, § 1170.126).1 The People argue defendant was

“armed” with a firearm during the commission of the commitment offense—being a felon

in possession of a firearm (former § 12021, subd. (a)(1))—and thus was ineligible for

resentencing. As discussed below, the record on appeal does not contain the accusatory

pleading or the trial transcript, and so we cannot determine with certainty whether the

conviction was based on defendant being armed with the firearm he was convicted of

possessing. For this reason, we reverse and remand with directions to allow the trial

court to examine the evidence adduced at trial to determine and state on the record

whether the prosecution’s case was based on the theory that defendant was guilty of

possession of a firearm by a felon because he had possession of a firearm that was

capable of offensive or defensive use. The trial court shall then act on defendant’s

resentencing petition in a manner consistent with this opinion.




       1   All section references are to the Penal Code unless otherwise indicated.



                                              2
                                FACTS2 AND PROCEDURE

       On August 30, 2001, the People filed an information charging defendant in count

1 with robbery (§ 211); in count 2 with first degree burglary (§ 459); in count 3 with

assault with a firearm (§ 245, subd. (a)(2)); in count 4 with felony child abuse (§ 273a,

subd. (a)); and in count 5 with being a felon in possession of a firearm. Defendant had

two prior convictions under the “Three Strikes” law.

       On November 30, 2001, a jury convicted defendant in counts 2 and 4 of the lesser

included crimes of misdemeanor assault (§ 240) and misdemeanor child endangerment

(§ 273a, subd. (b)). The jury was unable to reach a verdict on charges of robbery (§ 211)

and first degree burglary (§ 459). The jury did convict defendant, as charged, of being a

felon in possession of a firearm. On April 5, 2002, the trial court sentenced defendant


       2  The parties disagree regarding the facts underlying the charges and convictions;
these facts are not conclusively set forth in the record on appeal—hence the disposition.
The People’s rendering of these facts can be found in their opening brief in this appeal, in
the People’s opposition to defendant’s petition for resentencing, filed March 6, 2013, as
well as the People’s supplemental opposition filed April 25, 2013. These last two
pleadings are contained in the clerk’s transcript in this appeal. The People’s brief and the
pleadings below depict defendant and a codefendant entering the victim’s home and
demanding money at gunpoint. The People describe defendant as pointing a firearm at
the victim, forcing her into the bedroom, and taking a large quantity of money while the
codefendant remained with the other occupants of the home and physically restrained the
victim’s nine-year-old daughter. The People state that police recovered a loaded firearm
from under defendant’s mattress in a later search of his home. Defendant in his
responsive brief objects to the People’s factual statements as “unwarranted,”
“misleading,” and “unsupported by proof and findings” and asks this court to disregard
them. At the April 25, 2013, hearing on defendant’s petition, the court stated the felony
“was based on the officer finding the firearm later when they went to arrest him in his
house. I believe it was under a bed or some hidden place separately from the crime
itself.”


                                             3
under the Three Strikes law to 25 years to life for being a felon in possession of a firearm,

as well as concurrent sentences for the misdemeanor convictions and a concurrent one-

year sentence for a prior conviction. (§ 667, subd. (e)(2)(A).)

       On November 6, 2012, the electorate passed Proposition 36, also known as the

“Three Strikes Reform Act” (Reform Act). This ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

Three Strikes law to file a petition in the sentencing court, seeking to be resentenced to a

determinate term as a second-striker. (§ 1170.126, subd. (f).) Prisoners must first be

statutorily eligible to be considered for resentencing based on their criminal history and

current commitment offense. If a prisoner is statutorily eligible, the superior court can

then exercise its discretion to determine whether the prisoner should be resentenced to a

second-strike term.

       Accordingly, defendant filed his petition for recall of sentence on December 3,

2012. The People filed its opposition on March 6, 2013, in which it presented its

statement of the facts of the crime. The People conceded that defendant was statutorily

eligible for discretionary resentencing, but argued the superior court should exercise its

discretion to decline to resentence defendant because he poses an unreasonable risk of

danger to public safety. On March 8, 2013, defendant filed a memorandum summarizing

his criminal history, accomplishments while in prison and factors supporting

resentencing. On April 25, 2013, defendant filed a brief on the issue of his eligibility for

discretionary resentencing. Also on that date the People filed a supplemental opposition,



                                              4
for the first time taking the position that defendant is statutorily ineligible for

resentencing because he was “armed with a firearm” in the course of the commitment

offense—being a felon in possession of a firearm.

       The court held a hearing on April 25, 2013. Initially, the court noted that

defendant was not convicted of the robbery, burglary or assault with a firearm charges

stemming from the incident described in the People’s opposition and supplemental

opposition. Rather, the jury convicted defendant of two misdemeanors. The court further

noted that the felony commitment offense was based on “the officer finding the firearm

later when they went to arrest him in his house. I believe it was under a bed or some

hidden place separately from the crime itself. So I think for this particular case, we can

say he wasn’t armed or used a firearm at the time of the offense, at least no jury so

found.” The court stated it believed the People were required to have “pled and proved”

that defendant was armed or used a firearm during the commitment offense. The court

found that defendant was statutorily eligible for resentencing, and then granted him

discretionary resentencing based on his overall history and track record while in custody.

The court sentenced defendant to a total of seven years as follows: three years on the

felon-in-possession charge, doubled to six years as a second strike, plus concurrent

sentences on the misdemeanors and one-year consecutive for having served a prior prison

term (§ 667). The court noted that defendant would be released “because he has been in

much longer than that.”




                                               5
       This appeal followed.3

                                            DISCUSSION

       The People contend defendant is statutorily ineligible to petition for a recall of his

sentence because during the commission of the commitment offense he “was armed with

a firearm” under section 1170.126, subdivision (e)(2). Specifically, the People argue the

plain language of Proposition 36 does not require a firearm enhancement and further the

statute does not require the People to plead and prove that defendant was armed with or

used a firearm during the commitment offense.

       A. Principles of Statutory Interpretation

       Statutory interpretation is a question of law. (Reno v. Baird (1998) 18 Cal.4th

640, 660.) Consequently, appellate courts apply their independent judgment when

interpreting a legislative act. (California Teachers Assn. v. San Diego Community

College Dist. (1981) 28 Cal.3d 692, 699.)

       “Thus, the first step in statutory construction is to examine the statutory language

and give it a plain and commonsense meaning.” (People v. Verduzco (2012) 210

       3  The appealability of the denial of a section 1170.126 petition is currently being
considered by the Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217
Cal.App.4th 308, review granted July 31, 2013, S211708 [court held it was not
appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31,
2013, S212017 [court held it was appealable].) Even if we were to conclude it was a
nonappealable order, we could, in the interest of judicial economy and because of
uncertainty in the law, treat the People’s appeal as a petition for writ of mandate. (Drum
v. Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two]
[treating appeal as petition for writ of mandate due to uncertainty in the law].) In any
event, we will review the People’s appeal.



                                              6
Cal.App.4th 1406, 1414.) In other words, “We must give the statutory provisions at issue

a reasonable and common sense interpretation, consistent with the apparent purpose and

intention of the Legislature. If possible, we will give significance to the plain meaning of

every word, phrase, and sentence of a statute in pursuance of the legislative purpose,

harmonizing the various parts of an enactment by considering each particular clause or

section in the context of the statutory framework as a whole. In this process, we must

take into account the context, object, and history of the legislation, as well as public

policy and contemporaneous construction in our attempt to arrive at a construction that is

practical rather than technical in nature. [Citations.]” (In re Rochelle B. (1996) 49

Cal.App.4th 1212, 1216; see also People v. Zambia (2011) 51 Cal.4th 965, 972.)

       “If the meaning of the statute remains unclear after examination of both the

statute’s plain language and its legislative history, then we proceed to the third and final

step of the interpretive process. We apply ‘reason, practicality, and common sense to the

language at hand.’ [Citation.] The words of the statute should be interpreted ‘to make

them workable and reasonable.’ [Citation.]” (People v. Verduzco, supra, 210

Cal.App.4th at p. 1414.)

       B. The Reform Act

       In approving the Reform Act, the voters found and declared that its purpose was to

prevent the early release of dangerous criminals and relieve prison overcrowding by

allowing low-risk, nonviolent inmates serving life sentences for petty crimes, such as

shoplifting and simple drug possession, to receive twice the normal sentence instead of a



                                              7
life sentence. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1,

subds. (3), (4) & (5), p. 105; see Historical and Statutory Notes, 49 West’s Ann. Pen.

Code (2014 supp.) foll. § 667, pp. 40-41.) The electorate also approved a mandate that

the Reform Act be liberally construed to effectuate the protection of the health, safety,

and welfare of the People of California. (Voter Information Guide, supra, text of

Prop. 36, § 7, p. 110.)

       The Reform Act amended the Three Strikes Statutes (§§ 667, 1170.12) to require

that before a defendant may be sentenced to an indeterminate life term in prison under the

Three Strikes law, the new felony (the commitment offense) must generally qualify as a

serious or violent felony. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(A), (C).)

An exception to this general rule exists, among others, where the prosecution has pled

and proved the defendant used a firearm in the commission of the current offense, was

armed with a firearm or deadly weapon, or intended to cause great bodily injury to

another (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). If the prosecution

pleads and proves this exception exists, the defendant must be sentenced under the Three

Strikes law. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.) There is no

dispute here that sections 667 and 1170.12 explicitly reserved 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.

       The Reform Act also created a post-conviction release proceeding by

adding section 1170.126. Section 1170.126 applies exclusively to those “persons



                                              8
presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of

subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,

whose sentence under this act would not have been an indeterminate life sentence.”

(§ 1170.126, subd. (a).) Under section 1170.126, “a prisoner who is serving an

indeterminate life sentence imposed pursuant to the [T]hree [S]trikes law for a crime that

is not a serious or violent felony and who is not disqualified, may have his or her

sentence recalled and be sentenced as a second strike offender unless the court

determines that resentencing would pose an unreasonable risk of danger to public safety.”

(People v. Yearwood, supra, 213 Cal.App.4th at p. 168.)

       Defendant’s current commitment felony offense of felon in possession of a firearm

is not a serious or violent felony under section 667.5, subdivision (c), or section 1192.7,

subdivision (c). However, the inquiry does not end with whether or not the current

conviction is a serious or violent felony. An inmate is eligible for such resentencing if

none of his or her commitment offenses constitute serious or violent felonies and none of

the enumerated factors disqualifying a defendant for resentencing under Proposition 36

apply. (§ 1170.126, subd. (e).)

       Section 1170.126, subdivision (e)(2), provides, as pertinent here, that a defendant

is eligible for resentencing if “[t]he inmate’s current sentence was not 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,



                                               9
subd. (e)(2).) Being armed with a firearm during the commission of a current offense is

listed in section 667, subdivision (e)(2)(C)(iii), and section 1170.12, subdivision

(c)(2)(C)(iii).4 Here, as the parties correctly acknowledge, only the second resentencing

eligibility criterion set forth in section 1170.126, subdivision (e)(2), is at issue in this

appeal.5 Under the plain language of the armed-with-a-firearm exclusion, defendant is

ineligible for resentencing relief as a second strike offender if his life sentence was

“imposed” because “[d]uring the commission of the current offense, [he] . . . was armed

with a firearm.” (§§ 667, subd. (e)(2)(C)(iii) & 1170.12, subd. (c)(2)(C)(iii), both cross-

referenced in § 1170.126, subd. (e)(2).)




       4  Section 667, subdivision (e)(2)(C)(iii), provides: “[(e)(2)](C) If a defendant has
two or more prior serious and/or violent felony convictions as defined in subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and
the current offense is not a serious or violent felony as defined in subdivision (d), the
defendant shall be sentenced [as a second strike offender] pursuant to paragraph (1) of
subdivision (e) unless the prosecution pleads and proves any of the following: [¶] . . . [¶]
(iii) During the commission of the current offense, the defendant . . . was armed with a
firearm . . . .” (Italics added.)
        Section 1170.12, subdivision (c)(2)(C)(iii), provides: “[(c)(2)](C) If a defendant
has two or more prior serious and/or violent felony convictions as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved,
and the current offense is not a felony described in paragraph (1) of subdivision (b) of
this section, the defendant shall be sentenced [as a second strike offender] pursuant to
paragraph (1) of subdivision (c) of this section, unless the prosecution pleads and proves
any of the following: [¶] . . . [¶] (iii) During the commission of the current offense, the
defendant . . . was armed with a firearm . . . .” (Italics added.)

       5 The first resentencing eligibility criterion set forth in section 1170.126,
subdivision (e)(1), is met because defendant is serving an indeterminate life sentence for
crimes that (as noted, ante ) are not serious or violent felonies.



                                               10
       C. “Armed With a Firearm”

       The Reform Act does not define “armed with a firearm.” However, the Penal

Code provides definitions to distinguish between arming and use.6 Section 1203.06,

subdivision (b)(3), defines “armed with a firearm” as “to knowingly carry or have

available for use a firearm as a means of offense or defense.” Section 1203.06,

subdivision (b)(2), defines “used a firearm” as meaning “to display a firearm in a

menacing manner, to intentionally fire it, to intentionally strike or hit a human being with

it, or to use it in any manner that qualifies under Section 12022.5.”7 (See also

CALCRIM No. 3146 [adopts the statutory definition for “use of a firearm”]; People v.

Wims (1995) 10 Cal.4th 293, 302 [noting the definition in the standard jury instruction for

“use” was adapted from the statutory definition].)

       The lead case construing the language of “armed with a firearm” and addressing

the definition of arming for purposes of former section 12022 is Bland, supra, 10 Cal.4th

991. In Bland, our Supreme Court, contrasting arming with use of a firearm, explained

that former section 12022, which imposed an additional prison term for anyone “armed

with a firearm in the commission” of a felony, applied where “the defendant has the

       6 In sections 12022 and 12022.5, the Legislature drew a distinction between
armed with a firearm in the commission of a felony and using a firearm in the
commission of a felony, and it made firearm use subject to more severe penalties.
(People v. Bland (1995) 10 Cal.4th 991, 996-997 (Bland).)

       7  Section 12022.5, subdivision (a), provides in pertinent part: “[A]ny person who
personally uses a firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for 3,
4, or 10 years, unless use of a firearm is an element of that offense.”


                                            11
specified weapon available for use, either offensively or defensively.” (Id. at p. 997.)

The court explained: “[T]he statutory language ‘in the commission of a felony’ mean[s]

any time during and in furtherance of the felony. Therefore . . . [a] sentence enhancement

for being ‘armed’ with an assault weapon applies whenever during the commission of the

underlying felony the defendant had an assault weapon available for use in the

furtherance of that felony. [Citation.]” (Id. at p. 1001, italics omitted.) “[B]y specifying

that the added penalty applies only if the defendant is armed with a firearm ‘in the

commission’ of the felony offense, section 12022 implicitly requires both that the

‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’

to that offense.” (Bland, at p. 1002.)

       The Supreme Court has subsequently reiterated Bland’s holding that the arming

under section 12022 must have occurred both during the commission of the underlying

crime and have a facilitative nexus to the crime. (In re Tameka C. (2000) 22 Cal.4th 190,

197.) And, most recently, in People v. Pitto (2008) 43 Cal.4th 228, in refusing to

overrule Bland, the court agreed with the defendant’s contention that “Bland appears to

have adopted a ‘facilitative nexus’ test and embraced a ‘purpose and effect’ standard.”

(Id. at p. 239.)

       “The statutory elements of a violation of section 12021, subdivision (a)(1) . . . are

that a person, who has previously been convicted of a felony, had in his or her possession

or under his or her custody or control any firearm.” (People v. Padilla (2002) 98

Cal.App.4th 127, 138, italics added.) Although the crime of possession of a firearm by a



                                             12
felon may involve the act of personally carrying or being in actual physical possession of

a firearm, such an act is not an essential element of a violation of section 12021,

subdivision (a), because a conviction of this offense may also be based on a defendant’s

constructive possession of a firearm. (See People v. Sifuentes (2011) 195 Cal.App.4th

1410, 1417 (Sifuentes); People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [defendant

need not physically have the weapon on his person; constructive possession of a firearm

“is established by showing a knowing exercise of dominion and control” over it].) “To

establish constructive possession, the prosecution must prove a defendant knowingly

exercised a right to control the prohibited item, either directly or through another person.”

(Sifuentes, supra, at p. 1417.) Hence, while the act of being armed with a firearm—that

is, having ready access to a firearm (Bland, supra, 10 Cal.4th at p. 997)—necessarily

requires possession of the firearm, possession of a firearm does not necessarily require

that the possessor be armed with it.

       As the court in In re Pritchett (1994) 26 Cal.App.4th 1754 explained: “Possession

was complete without use of the shotgun. In addition to possessing it, he did use it, but

using it as a club in no way furthered the crime of possession. [¶] At most, [the

defendant] used the shotgun as an instrument of possession, or made ‘possessory use’ of

the shotgun, in the commission of his crime of [felon in] possession. However, if

possessory use is a legally cognizable concept, it does not support a use enhancement

because possessory use is an element of the crime of possession of a deadly weapon.”

(Id. at p. 1757.)



                                             13
       Defendant argues that he could not be armed with a firearm during the

commission of his possession of that firearm, because the language “during the

commission of the current offense” in the Reform Act requires an additional tethering

offense to trigger that exclusion provision. Defendant further maintains that “[n]o

defendant convicted of the stand-alone offense of possession of a firearm under section

12021, subdivision (a) has ever been found to have been ‘armed’ in the course of that

crime.”

       Where the record establishes that a defendant convicted of possession of a firearm

by a felon was armed with the firearm during the commission of that offense, the armed-

with-a-firearm exclusion applies and the defendant is not entitled to resentencing relief

under the Reform Act. We therefore reject defendant’s argument that the plain language

of the armed-with-a-firearm exclusion requires that the arming be anchored or tethered to

an offense which does not include possession. Here, the record does not contain the

accusatory pleading or the trial transcript. We cannot know with certainty, therefore,

whether defendant was charged with being armed with a firearm during the commission

of his current commitment offense—being a felon in possession of a firearm. And, the

record on appeal does not contain the trial evidence regarding the factual circumstances

of the crime. We do note that the trial court that considered defendant’s resentencing

petition conducted the hearing as if the felony conviction was based on the firearm being

found under defendant’s mattress when officers later searched his home. While we do




                                            14
not doubt the trial court’s reasons for so considering the basis of the felony conviction,

these reasons do not appear in the record on appeal.

       Defendant’s exact arguments were recently rejected by our colleagues in People v.

White (2014) 223 Cal.App.4th 512, 522 (White) (petn. for review denied Apr. 30, 2014

[Fourth Dist., Div. One].) White deemed it appropriate for the court to look beyond the

crime for which defendant had been sentenced to determine whether the “armed-with-a-

firearm” exception to resentencing applied. (Id. at p. 523.) There, the defendant had

been convicted and sentenced as a felon in possession of a firearm. The court recognized

that “possession of a firearm does not necessarily require that the possessor be armed

with it” (id. at p. 524), but affirmed the denial of resentencing because “the record of

conviction establishes that the applicable resentencing eligibility criterion set forth in

section 1170.126[, subdivision] (e)(2) is not satisfied, and, thus, [the defendant] is

ineligible for resentencing relief.” (Id. at p. 524.)

       The trial evidence in White showed that the prosecution’s case was not based on

the theory that White was guilty of possession of a firearm by a felon because he had

constructive possession of the firearm; it was based on the theory that he was guilty of

that offense because he had actual physical possession of the firearm. (White, supra, 223

Cal.App.4th at p. 525.) The court noted: “The trial evidence shows the police officers

conducting a surveillance of White’s residence saw White walking towards his pickup

truck and carrying a rolled-up cloth (sweatpants) with an object inside. The officers

believed White might be armed, and when they moved towards him and drew their guns,



                                              15
White began to run, reached inside the rolled-up sweatpants he was carrying, and soon

thereafter threw both the sweatpants and the object inside the sweatpants into the bed of

his truck. The officers arrested White and found that the object he had thrown into the

truck bed was a loaded .357-magnum revolver. [¶] Furthermore, the record shows White

asserted in a pretrial motion that the object he threw into the back of his truck was ‘a

hand gun in a holster rolled up inside’ the sweatpants. Also, White’s counsel stipulated

during his closing argument at trial that White had been armed.” (Ibid.)

       There is no evidence in this record to show that defendant was armed with the

firearm during his commission of the current offense, i.e., that he had ready access to the

firearm during this offense. The record here does not show the prosecution proved that

defendant not only possessed the firearm, but also that he was armed with the firearm.

We will therefore remand the matter to allow the trial court to examine the evidence

adduced at trial to determine and state on the record whether the evidence shows that

defendant was guilty of possession of a firearm by a felon because he had actual physical

possession of the firearm.

       D. “Plead and Prove” Requirement

       The People argue that the resentencing provisions of section 1170.126 do not

contain a pleading and proof requirement.

       Section 667, subdivision (e)(2)(C), provides in pertinent part that, “[i]f a defendant

has two or more prior serious and/or violent felony convictions . . . and the current

offense is not a serious or violent felony, . . . the defendant shall be sentenced” (italics



                                              16
added) as a second strike offender “unless the prosecution pleads and proves” (italics

added) any of the four enumerated exceptions or exclusions set forth in clauses (i)

through (iv) of section 667, subdivision (e)(2)(C). (See People v. Superior Court

(Kaulick) (2013) 215 Cal.App.4th 1279, 1293 (Kaulick).)

       Section 1170.12, subdivision (c)(2)(C), similarly provides that, “[i]f a defendant

has two or more prior serious and/or violent felony convictions . . . and the current

offense is not a [serious or violent] felony . . . , the defendant shall be sentenced” (italics

added) as a second strike offender “unless the prosecution pleads and proves” (italics

added) any of the four enumerated exceptions or exclusions set forth in clauses (i)

through (iv) of section 1170.12, subdivision (c)(2)(C). (See Kaulick, supra, 215

Cal.App.4th at p. 1293.)

       In White, supra, 223 Cal.App.4th 512 the inmate claimed that the pleading and

proof requirement set forth in both section 667, subdivision (e)(2)(C), and section

1170.12, subdivision (c)(2)(C), “‘is incorporated into section 1170.126.’” (White at p.

526.) The White court rejected this claim, finding the inmate’s reliance on the plead-and-

prove language was unavailing for two principal reasons. (Ibid.) The court explained:

“First, although section 1170.126[, subdivision] (e)(2) expressly cross-references

‘sections clauses (i) to (iii), inclusive’ of [sections] 667[, subdivision] (e)(2)(C) and

1170.12[, subdivision] (c)(2)(C), nothing in the language of section

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

governing an inmate’s petition for resentencing relief under the Reform Act references



                                              17
the plead-and-prove language. [¶] Second, what White refers to as the pleading and

proof requirement plainly is a part of only the prospective part of the Reform Act, which

governs the sentencing of a defendant with ‘two or more prior serious and/or violent

felony convictions’ who has suffered a third felony conviction; it is not a part of section

1170.126, the retrospective part of the Reform Act that governs a petition for

resentencing brought by an inmate already serving a life sentence under the Three Strikes

law.” (White, supra, 223 Cal.App.4th at pp. 526-527.)

       The White court, quoting Kaulick, also explained that “‘there are two parts to the

[Reform Act]: the first part is prospective only, reducing the sentence to be imposed in

future three strike cases where the third strike is not a serious or violent felony (Pen.

Code, §§ 667, 1170.12); the second part is retrospective, providing similar, but not

identical, relief for prisoners already serving third strike sentences in cases where the

third strike was not a serious or violent felony (Pen. Code, § 1170.126).’ [Citation.] The

Kaulick court further explained that, ‘under the prospective part of the [Reform Act], if

the defendant’s current third strike offense is not serious or violent, and none of four

enumerated exceptions applies, the defendant “shall be” sentenced as if the defendant had

only a single prior strike.’ [Citation.]” (White, supra, 223 Cal.App.4th at p. 527, citing

and quoting Kaulick, supra, 215 Cal.App.4th at pp. 1292-1293, fn. omitted.)

       For the reasons explained in White and Kaulick, we conclude that the plead-and-

prove language is not incorporated into section 1170.126.




                                              18
       In sum, we conclude that, where the record establishes the prosecution’s case was

based on the theory a defendant convicted of possession of a firearm by a felon used or

was physically armed with the firearm during the commission of that offense, the armed-

with-a-firearm exclusion applies and, thus, a defendant is not entitled to resentencing

relief under the Reform Act. We also hold that, in such a case, a trial court may deny

section 1170.126 resentencing relief under the armed-with-a-firearm exclusion even if the

accusatory pleading did not allege he or she used or was armed with a firearm during the

commission of that possession offense.

                                       DISPOSITION

       The judgment is reversed and remanded with directions to allow the trial court to

examine the evidence adduced at trial to determine and state on the record whether the

prosecution’s case was based on the theory that defendant was guilty of possession of a

firearm by a felon based on evidence consistent with this opinion. The trial court shall

then act on defendant’s resentencing petition in a manner consistent with this opinion.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                               RAMIREZ
                                                                                          P. J.


We concur:

RICHLI
                          J.

MILLER
                          J.




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