Filed 4/8/16 P. v. Hatfield CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068756

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE207071)

RONALD HATFIELD,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.



         Anthony J. Dain, 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, Scott C. Taylor and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.
                                     BACKGROUND

       On July 29, 2000, James Schmidt went to a neighbor's apartment, where he

encountered defendant and appellant Ronald Hatfield. Defendant struck Schmidt in the

face and took his keys. Defendant then handed the keys to his companions. Later, two

people entered Schmidt's apartment and stole guns. Two days later, an El Cajon police

officer detained defendant and two companions at a gas station after the officer

recognized defendant as an individual who might have been involved in the July 29

crimes. The automobile was searched, and a gun stolen from Schmidt was recovered.

The driver denied knowledge of the gun. Defendant was riding in the rear passenger seat;

he was not wearing a shirt. The arresting officer testified the gun was found concealed

by a T-shirt and other clothing on the rear seat. Defendant was convicted of being a felon

in possession of a firearm in violation of Penal Code former section 12021, subdivision

(a)(1), for which he received a sentence of 25 years to life. He received an additional one

year for each of four prison priors, for a total sentence of 29 years to life. Defendant filed

a timely notice of appeal. This court affirmed his conviction and sentence in 2001.

(People v. Hatfield (Nov. 14, 2001, D037240) [nonpub. opn.].)

       On March 14, 2015, defendant filed a motion, and later, addendums, to recall his

sentence pursuant to Penal Code section 1170.126. On August 12, 2015, defendant's

motion was denied based on the trial court's finding he was armed during the commission

of his current offense and was therefore ineligible for relief. He filed a timely notice of

appeal.

       Defendant argues on appeal that the trial court erred in denying his motion to

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reduce his sentence.

                                        ANALYSIS

       On November 6, 2012, California voters approved Proposition 36, the Three

Strikes Reform Act of 2012 (the Act), which modified Penal Code sections 667 and

1170.12 and added Penal Code section 1170.126. Under Penal Code section 1170.126,

the three strikes law was diluted 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. In all other cases, the recidivist will be sentenced as a second strike

offender. The Act also created a postconviction release proceeding whereby a prisoner

serving an indeterminate life sentence imposed under the three strikes 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.

(§ 1170.126; see People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)

       One of the disqualifying factors in the Act is whether, during the commission of

the current offense, the defendant was "armed with a firearm or deadly weapon." (See

Pen. Code, §§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii); see also Pen. Code,

§ 1170.126, subd. (e)(2).) A trial court need only find the existence of a disqualifying

factor by a preponderance of the evidence. (People v. Osuna (2014) 225 Cal.App.4th

1020, 1040.)

       The definition of "armed" is quite broad. Our Supreme Court has ruled that

"armed" means that the defendant had the prohibited weapon available for offensive or

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defensive use. (People v. Bland (1995) 10 Cal.4th 991, 1002.) The term "armed" has

also been interpreted to mean ready access to a firearm, which creates a real danger it can

be used. (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1662-1663; People v. Moore

(1956) 143 Cal.App.2d 333, 336.) Even when a defendant is not holding a gun, or did

not have it on his or her person, it has been held the defendant was "armed." (People v.

Wandick (1991) 227 Cal.App.3d 918, 921; People v. Searle (1989) 213 Cal.App.3d 1091,

1099.)

         Here, the jury found defendant possessed the gun. The trial court concluded from

the record of conviction that defendant was armed. Defendant was in the backseat of the

car, and the gun was under clothing on the backseat next to him, where it was readily

available for use. This provided the evidence necessary under the preponderance of the

evidence test. Contrary to defendant's argument, the trial court did not engage in

improper relitigation of the circumstances of the crime, which would run afoul of People

v. Guerrero (1988) 44 Cal.3d 343 and People v. Trujillo (2006) 40 Cal.4th 165. People

v. Guerrero authorizes a review of the entire record of conviction in order to determine

the conduct that underlies the crime. It is the use of evidence derived from outside the

record that is prohibited. People v. Trujillo prohibited the use of incriminating statements

in a postplea probation report. Here, the facts used by the trial court to determine the

circumstances of the crime were clear. Defendant was not wearing a shirt. He was

sitting in the backseat and next to him, under clothing, was a gun. The unpublished

opinion of this court confirms this factual circumstance.

         Defendant also argues the "arming" must be anchored to an offense that does not

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include a possession charge. We find no language in the statutes that supports such an

argument. The facts surrounding the crime of possession in this case more than

adequately meet the definition of "armed." They certainly meet the burden of proof

establishing defendant was armed, that is, a preponderance of the evidence.

                                     DISPOSITION

      The conclusion of the court denying reduction of defendant's conviction is

affirmed.




                                                                    BENKE, Acting P. J.

WE CONCUR:


HALLER, J.


AARON, J.




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