Filed 11/12/15 P. v. Moreno CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041189
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS111435A)

         v.

FERNANDO MORENO,

         Defendant and Appellant.


         In October 2012, defendant Fernando Moreno pleaded guilty to possession of a
weapon by a prisoner (Pen. Code, § 4502, subd. (a))1 and admitted two or more prior
strike convictions for robbery (§ 1170.12, subd. (c)(2)). Moreno was sentenced under the
Three Strikes law to an indeterminate term of 25 years to life, consecutive to any other
term he was presently serving.
         In 2014, Moreno petitioned for resentencing under the Three Strikes Reform Act
of 2012 (Reform Act), passed by the voters as Proposition 36. The trial court denied the
petition without a hearing, concluding Moreno was ineligible for resentencing because he
was “armed with a . . . deadly weapon” during the commission of the current offense.
         On appeal, Moreno argues the trial court improperly relied on evidence outside the
record of conviction in concluding he was armed with a weapon, rather than merely
possessing a weapon without lawful purpose. He also contends he should have been
found eligible for resentencing because: (1) the arming factor was not pleaded and
         1
             Unspecified statutory references are to the Penal Code.
proved at the time of his conviction, and (2) there was no “tethering” offense to which the
arming factor applied.
       We find the trial court improperly relied on evidence outside the record of
conviction and will reverse the order denying Moreno’s petition for resentencing. We
reject his other arguments.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.     Recitation of facts2
       “Defense counsel stipulated that on January 30, 2011, ‘Mr. Moreno, while housed
in a California penal institution, was in possession of a sharp instrument and without
lawful purpose.’ On October 10, 2012, Moreno pleaded guilty to possession of a weapon
by a prisoner and admitted having two or more prior serious and/or violent felony
convictions. The trial court imposed a sentence of 25 years to life pursuant to
section 1170.12, subdivision (c)(2), the Three Strikes law.”
       B.     Moreno’s petition for resentencing under the Reform Act
       On April 8, 2014, Moreno, through the public defender’s office, filed a petition
for recall of sentence under section 1170.126. The trial court denied the petition by
written order dated June 16, 2014, finding Moreno ineligible for resentencing because it
concluded he was “armed with a deadly weapon” within the meaning of
section 1170.126, subdivision (e)(2). The trial court based this conclusion on “[t]he
People’s opposition to defense counsel’s request to strike a prior strike [which] further
explain[ed] that correctional officers found a 5-inch sharpened instrument tied to
[Moreno’s] boxer shorts during an unclothed body search following a riot.” The trial
court noted that if it determined Moreno was eligible for resentencing, it would be

       2
         We recite the facts of Moreno’s underlying conviction from our opinion in his
prior appeal, People v. Moreno (Dec. 16, 2013, H039087 [nonpub. opn.]), and from the
record in that appeal, of which we take judicial notice. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).)

                                             2
entitled to consider information outside the record of conviction in deciding, in its
discretion, whether resentencing Moreno would be an unreasonable risk of danger to
public safety, citing section 1170.126, subdivision (g). Accordingly, it concluded there
was no reason it could not “initially review the very same information that will be
reviewable at a dangerousness hearing” in deciding Moreno’s eligibility for resentencing.
       This appeal followed.
II.    DISCUSSION
       A.     The Three Strikes Reform Act
       In the November 6, 2012 election, California voters approved Proposition 36, the
so-called Three Strikes Reform Act of 2012. Prior to the passage of Proposition 36, the
Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) required that a defendant convicted of
two prior serious or violent felonies be subject to a sentence of 25 years to life upon
conviction of a third felony. As amended by the Reform Act, section 1170.12,
subdivision (c)(2)(C), and section 667, subdivision (e)(2)(C), now mandate that a
defendant with two or more strikes who is convicted of a felony that is neither serious nor
violent be sentenced as a second strike offender unless “the prosecution pleads and
proves” one or more disqualifying factors.
       The Reform Act also added section 1170.126, which allows eligible inmates
who are currently subject to 25-years-to-life sentences under the Three Strikes law to
petition the court for resentencing. “Section 1170.126, subdivisions (a) and (b), broadly
describe who is eligible to file a petition and to be resentenced. Subdivision (a) of
section 1170.126 states: ‘The resentencing provisions under this section and related
statutes are intended to apply exclusively to persons 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.’ ” (Teal v. Superior Court (2014) 60
Cal.4th 595, 598 (Teal).) “Subdivision (b) of section 1170.126 states: ‘Any person
                                              3
serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12
upon conviction, whether by trial or plea, of a felony or felonies that are not defined as
serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7, may file a petition for a recall of sentence. . . .’ ” (Id. at p. 599.)
       Subdivision (e) of section 1170.126 addresses eligibility more specifically. It
provides that an inmate is “eligible for resentencing” if (1) he or she is “serving an
indeterminate term of life imprisonment” imposed under the Three Strikes law “for a
conviction of a felony or felonies that are not defined as serious and/or violent felonies”
and (2) his or her current and prior convictions are not for certain designated offenses.
(§ 1170.126, subd. (e)(1); Teal, supra, 60 Cal.4th at p. 600.) An eligible prisoner “shall
be resentenced” as a second strike offender unless the court determines that resentencing
him or her “would pose an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).)
       “[E]ligibility is not a question of fact that requires the resolution of disputed
issues. The facts are limited to the record of conviction underlying a defendant’s
commitment offense; the statute neither contemplates an evidentiary hearing to establish
these facts, nor any other procedure for receiving new evidence beyond the record of
conviction. [Citation.] What the trial court decides is a question of law: whether the
facts in the record of conviction are the proper subject of consideration, and whether they
establish eligibility.” (People v. Oehmigen (2014) 232 Cal.App.4th 1, 7, third set of
italics added (Oehmigen).)

       B.     The trial court erred in relying on evidence outside the record of conviction
              to find Moreno was “armed with a deadly weapon”
       In People v. Bradford (2014) 227 Cal.App.4th 1322 (Bradford), the court
decided that, in determining the “armed with a deadly weapon” disqualifying factor, the
trial court is limited to the record of conviction because the language and framework of

                                               4
the Reform Act relating to that determination was similar to that involved in determining
whether a prior conviction may be proved as an enhancement under People v. Guerrero
(1988) 44 Cal.3d 343. (Bradford, supra, at p. 1338.) Accordingly, the trial court may
look to the “relevant, reliable, admissible portions of the record of conviction to
determine disqualifying factors.” (People v. Brimmer (2014) 230 Cal.App.4th 782, 800
(Brimmer).)
       The exact parameters of what constitutes the “record of conviction” have not been
precisely defined. (People v. Woodell (1998) 17 Cal.4th 448, 454.) It has been held that
the record of conviction includes the charging document and court records reflecting a
defendant’s admission, no contest plea, or guilty plea. (People v. Reed (1996) 13 Cal.4th
217, 224 (Reed)). “[F]acts established within the record of conviction, even if those facts
were not essential to the judgment” may be considered. (People v. Smith (1988) 206
Cal.App.3d 340, 344.) The record of conviction also includes pretrial motions and
closing arguments (People v. White (2014) 223 Cal.App.4th 512, 525 (White)) and the
prior opinion in defendant’s appeal (Brimmer, supra, 230 Cal.App.4th at pp. 800-801).
The transcript of a preliminary hearing, which falls within both the official records and
former-testimony exceptions to the hearsay rule, is also considered part of the record of
conviction and will be admissible to support a determination that a prior conviction was a
serious felony. (Reed, supra, at p. 230; People v. Trujillo (2006) 40 Cal.4th 165, 177.)
       In this case, the record of conviction does not contain any information which
supported the trial court’s conclusion that Moreno was armed with a deadly weapon at
the time of the current offense. Moreno’s guilty plea was based on the following
stipulated facts: “while housed in a California penal institution [Moreno] was in
possession of a sharp instrument and without lawful purpose.” Faced with the paucity of
information in the record of conviction, the trial court relied on a recitation of facts set




                                               5
forth in the People’s opposition to Moreno’s Romero3 motion to deny his petition for
resentencing. The trial court, in a tacit acknowledgement that the record of conviction by
itself was insufficient, justified its reliance on this material by citing section 1170.126,
subdivision (g), which describes the more expansive information the court may consider
when it is making a posteligibility determination on the question of whether resentencing
a defendant would present an unreasonable danger to public safety. This was error.
       The initial eligibility determination must be made on the record of conviction and
the record of conviction alone. (Bradford, supra, 227 Cal.App.4th at p. 1339; Oehmigen,
supra, 232 Cal.App.4th at p. 7.) It is only once a petitioner has been found eligible for
resentencing that the trial court may consider information outside that record, as
described in section 1170.126, subdivision (g), in evaluating the ultimate question of
whether resentencing the petitioner “would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f).) Of course, that information will be considered at a
contested hearing, where the petitioner would have notice and an opportunity to be heard,
not to mention the opportunity to rebut the material presented by the People. As noted in
Bradford, “[r]egarding eligibility, the current statute contains no procedure permitting the
trial court to consider new evidence outside of the record of conviction . . . . To do so
would impose a cumbersome two-step process in which the trial court would be required
to consider new evidence at two stages of the proceedings. Had the drafters of
Proposition 36 intended the trial court to consider newly offered ‘evidence’ at the
eligibility stage, they would have included express language of the type they did to
describe the nature of the court’s later, discretionary sentencing determination.”
(Bradford, supra, at p. 1339.)
       The People argue that the complaint and information, which are part of the record
and conviction, charged Moreno with unlawfully “possess[ing] and carry[ing] upon his

       3
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

                                               6
person and hav[ing] under his custody and control” a deadly weapon. Having pleaded
guilty to that charge, Moreno necessarily admitted being armed with a deadly weapon.
We disagree.
       To be armed with a weapon, the defendant must have “the specified weapon
available for use, either offensively or defensively.” (People v. Bland (1995) 10 Cal.4th
991, 997.) In White, supra, 223 Cal.App.4th 512, the Court of Appeal addressed whether
defendant’s conviction for unlawful possession of a firearm in violation of former
section 12021, subdivision (a)(1) was sufficient to establish that he was armed with a
firearm. The court noted the statutory elements of that crime were that a person, “ ‘who
has previously been convicted of a felony, had in his or her possession or under his or
custody or control any firearm.’ ” (White, supra, at p. 524.) However, “[a]lthough the
crime of possession of a firearm by a 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 [former] section 12021[, subdivision] (a) because a conviction of this
offense also may be based on a defendant’s constructive possession of a firearm.” (Ibid.)
Accordingly, “while the act of being armed with a firearm—that is, having ready access
to a firearm [citation]—necessarily requires possession of the firearm, possession of a
firearm does not necessarily require that the possessor be armed with it.” (Ibid.)
Although the defendant in White was charged with and convicted of being a felon in
possession of a firearm, as opposed to possession of a deadly weapon in violation of
section 4502, subdivision (a), the same analysis applies.
       Moreno was charged with possession of a deadly weapon in both the complaint
and information, and pleaded guilty. His guilty plea was to the effect that he was “in
possession of a sharp instrument and without lawful purpose.” His possession of that
weapon could have been either physical; i.e., carried on his person, or constructive; i.e.,
under his custody or control. There is nothing in the record of conviction establishing
which of those factual scenarios occurred.
                                              7
       As a result, the trial court erred in finding Moreno ineligible for resentencing by
relying on information outside the record of conviction to establish he was armed with a
deadly weapon in the commission of the current offense.
       B.     No pleading and proof requirement in resentencing proceedings
       Moreno contends the “plain language” of the Reform Act does not permit a
defendant to be found ineligible for resentencing due to the fact that, “[d]uring the
commission of the current offense” he or she “was armed with a deadly weapon,” unless
that fact was pleaded and proved when the defendant was convicted of the current
offense. (§§ 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) We disagree.
       This court recently held in People v. Chubbuck (2014) 231 Cal.App.4th 737
(Chubbuck), that a prosecutor is not required to plead and prove any of the
disqualification factors set forth in section 1170.126. (Chubbuck, supra, at p. 740.)
Chubbuck endorsed the analysis set forth in many other recent published decisions from
our sister Courts of Appeal, such as White, supra, 223 Cal.App.4th 512, People v. Osuna
(2014) 225 Cal.App.4th 1020 (Osuna), People v. Blakely (2014) 225 Cal.App.4th 1042
(Blakely), People v. Elder (2014) 227 Cal.App.4th 1308, and Brimmer, supra, 230
Cal.App.4th 782. (Chubbuck, supra, at p. 745.)
       As in the present case, the defendant in Chubbuck argued that “ ‘a fair reading’ ”
of the Reform Act “ ‘compels a conclusion’ that the pleading and proof language of
section 1170.12, subdivision (c)(2)(C) applies to the disqualifying factors referenced in
section 1170.126, subdivision (e)(2).” (Chubbuck, supra, 231 Cal.App.4th at p. 746.)
In other words, because the Reform Act expressly requires the prosecution to plead and
prove the disqualifying factors at the initial sentencing of a potential third strike
defendant, the prosecution must also plead and prove the disqualifying factors for anyone
seeking resentencing under the Reform Act. Chubbuck expressly rejected this argument,
pointing out that the Reform Act “explicitly distinguishes between the procedures


                                               8
applicable to resentencing and the procedures applicable prospectively, to defendants
who are being sentenced for a new offense.” (Ibid.)
       Moreno next argues his current third strike sentence was imposed for being a felon
in possession of a deadly weapon, and was not imposed for being armed with a deadly
weapon which is one of “the offenses appearing in . . . clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126,
subd. (e)(2).) Noting that clause (iii) describes only “a fact relating to an unspecified
generic offense,” that is, that “[d]uring the commission of the current offense, the
defendant was armed . . . with a . . . deadly weapon,” Moreno claims that the provision
can be construed as describing an “offense,” only if it is read in conjunction with the
pleading and proof language of section 1170.12, subdivision (c)(2)(C).
       Chubbuck rejected this same argument: “While section 1170.126,
subdivision (e)(2) ‘expressly cross-references “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 the plead-and-prove language.’ ” (Chubbuck, supra, 231
Cal.App.4th at p. 747, quoting White, supra, 223 Cal.App.4th at pp. 526-527.)
       Citing Apprendi v. New Jersey (2000) 530 U.S. 466, Moreno further contends it is
unconstitutional to impose a sentence “for a particular aggravated crime or enhancement
unless the facts giving rise to the aggravation or enhancement have been pleaded and
either proven to a jury beyond a reasonable doubt, or admitted by the defendant.”
This argument was rejected in Blakely, supra, 225 Cal.App.4th 1042, which reasoned:
“A finding an inmate is not eligible for resentencing under section 1170.126 does not
increase or aggravate that individual’s sentence; rather, it leaves him or her subject to the
sentence originally imposed. In the case of a third strike offender such as defendant, that
sentence is the indeterminate term of 25 years to life in prison that the trial court
                                               9
permissibly imposed at the time defendant was convicted of his current offense, ‘solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ ”
(Id. at p. 1061.) We agree that Apprendi does not apply to resentencing petitions under
the Reform Act.
       Moreno also argues that “courts are obligated to construe any ambiguity in a penal
statute in a manner which avoids constitutional problems” and thus “judicial factfinding
in the present case about the nature of the ‘current’ conviction is constitutionally
dubious.”
       This reasoning was addressed and rejected in Chubbuck: “[W]e find no ambiguity
as to whether section 1170.126, subdivision (e)(2) incorporates the pleading and proof
requirements of section 1170.12, subdivision (c)(2)(C). As explained above, the Reform
Act explicitly distinguishes between the procedures applicable to resentencing and the
procedures applicable to defendants who are being sentenced for a new offense, and
section 1170.126, subdivision (e)(2) only ‘expressly cross-references “clauses (i) to (iii),
inclusive” of [sections] 667[, subdivision] (e)(2)(C) and 1170.12[, subdivision]
(c)(2)(C),’ not any other provisions of those statutes.” (Chubbuck, supra, 231
Cal.App.4th at p. 747.)
       Moreno next argues the Reform Act should be broadly and liberally construed to
promote its legislative goals, i.e., to ensure that sentences of 25 years to life are reserved
only for defendants whose current convictions are for violent or serious crimes and to
save taxpayers’ money by reducing the costs associated with lifelong incarceration of
nonviolent offenders. Thus, he claims that “an interpretation of section 1170.126 which
includes the ‘pleading and proof’ requirement for the resentencing exclusions clearly
promotes the remedial goals of the initiative.”
       Moreno has accurately stated two of the Reform Act’s underlying remedial
purposes. “However, the goals of the Reform Act included ensuring that ‘ “dangerous
criminals serve their full sentences” ’ (Osuna, supra, 225 Cal.App.4th at p. 1037), and
                                              10
the Reform Act explicitly included, as a factor disqualifying an inmate from resentencing,
[those defendants who were armed with a deadly weapon]. . . . We are not persuaded that
in order to effectuate the remedial purposes of the Reform Act, facts that disqualify an
offense from resentencing eligibility must have been pleaded and proved in a prior
proceeding, rather than determined by a judge at a resentencing eligibility proceeding. [¶]
Although reducing sentences would save taxpayer money, we do not agree with
defendant that this is a sufficient reason to impose a pleading and proof requirement on
resentencing disqualification criteria. ‘It is clear the electorate’s intent was not to throw
open the prison doors to all third strike offenders whose current convictions were not for
serious or violent felonies, but only to those who were perceived as nondangerous or
posing little or no risk to the public.’ ” (Chubbuck, supra, 231 Cal.App.4th at p. 748,
quoting Osuna, supra, at p. 1038.)
       Lastly, Moreno argues “the rule of lenity” supports his interpretation of
section 1170.126, subdivision (e)(2). However, “the rule of lenity ‘applies “ ‘only if the
court can do no more than guess what the legislative body intended; there must be an
egregious ambiguity and uncertainty to justify invoking the rule.’ ” [Citation.]’
[Citation.] As stated above, we find no ambiguity as to whether section 1170.126,
subdivision (e)(2) incorporates the pleading and proof requirements of section 1170.12,
subdivision (c)(2)(C).” (Chubbuck, supra, 231 Cal.App.4th at p. 748.)
       C.     No “tethering” requirement in resentencing proceedings
       Moreno also argues he should be found eligible for resentencing because there was
no “separate, tethering felony current offense” besides his mere possession of a deadly
weapon. In support of this argument, Moreno cites several statutes which impose
sentence enhancements for being armed “in the commission of the current offense” and
notes that case law has uniformly held that those arming enhancements may be imposed
only where there was a separate connected felony charge beyond simple possession of a
deadly weapon.
                                              11
       The arming enhancement statutes cited by Moreno4 all use the phrase “in the
commission of a felony or attempted felony” whereas the Reform Act uses the phrase
“[d]uring the commission of the current offense.” (§ 1170.12, subd. (c)(2)(C).) The
distinction makes a difference, as explained in Osuna, “[U]nlike section 12022, which
requires that a defendant be armed ‘in the commission of’ a felony for additional
punishment to be imposed (italics added), the [Reform] Act disqualifies an inmate from
eligibility for lesser punishment if he or she was armed with a firearm ‘during the
commission of’ the current offense (italics added). ‘During’ is variously defined as
‘throughout the continuance or course of’ or ‘at some point in the course of.’ [Citation.]
In other words, it requires a temporal nexus between the arming and the underlying
felony, not a facilitative one. The two are not the same.” (Osuna, supra, 225
Cal.App.4th at p. 1032.) “Since the [Reform] Act uses the phrase ‘[d]uring the
commission of the current offense,’ and not in the commission of the current offense
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the
imposition of additional punishment but rather eligibility for reduced punishment, we
conclude the literal language of the [Reform] Act disqualifies an inmate from
resentencing if he or she was armed with a firearm during the unlawful possession of that
firearm.” (Ibid.; Brimmer, supra, 230 Cal.App.4th at pp. 798-799.) We find no fault
with the analysis in Osuna and therefore conclude that the Reform Act does not mandate
exclusion for resentencing only where there is a separate tethering felony in which the
defendant is armed with a deadly weapon.


       4
         Specifically, section 12022, subdivision (a)(1) (one year enhancement for any
person “armed with a firearm in the commission of a felony or attempted felony”);
section 12022, subdivision (b)(1) (one year enhancement where person “personally uses a
deadly or dangerous weapon in the commission of a felony or attempted felony”); and
section 12022.5, subdivision (a) (three, four or 10 year enhancement for person “who
personally uses a firearm in the commission of a felony or attempted felony”).

                                              12
III.   DISPOSITION
       The order denying Moreno’s petition is reversed. The matter is remanded to the
superior court with directions to set a hearing on the question of whether resentencing
Moreno would pose an unreasonable risk of danger to public safety, in accordance with
Penal Code section 1170.126, subdivision (f).




                                            13
                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




People v. Moreno
H041189

      *
        Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
