Filed 10/30/14 Johnson v. Super. Ct. CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



TYRONE DANIEL JOHNSON,                                                                       C073091

                   Petitioner,                                                 (Super. Ct. Nos. 97F06816 &
                                                                                       12HC00585)
         v.

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

                   Respondent;

THE PEOPLE,

                   Real Party in Interest.




         Convicted of being a convicted felon in possession of a firearm and sentenced
under the “Three Strikes” law 15 years ago, petitioner Tyrone Daniel Johnson
(defendant) recently filed a petition for resentencing under the Three Strikes Reform Act
of 2012. The trial court denied the petition because defendant was armed with a firearm
when he possessed the firearm under the facts of this case.



                                                             1
       Treating defendant’s appeal from the denial of his petition for resentencing as a
petition for writ of mandate, we conclude the trial court did not err. We hold that: (1) we
need not decide whether the denial of a petition for resentencing is appealable because we
treat the purported appeal as a petition for writ of mandate; (2) defendant’s petition for
resentencing was properly denied, even though defendant’s felon-in-possession offense is
not listed as one of the disqualifying offenses, because he was armed when he committed
the offense, which is a disqualifying circumstance; and (3) defendant was not entitled to a
hearing on his petition for resentencing at the initial screening phase.
       We therefore deny the petition for writ of mandate.
                                      BACKGROUND
       In 1999, defendant was convicted by jury of being a convicted felon in possession
of a firearm in violation of Penal Code section 12021, subdivision (a). (Hereafter,
unspecified code citations are to the Penal Code.) Because he had two prior robbery
convictions, defendant was sentenced to an indeterminate term of 25 years to life under
the Three Strikes law.
       In November 2012, California voters passed Proposition 36, the Three Strikes
Reform Act of 2012, which we refer to in this opinion as the Three Strikes Reform Act
or, simply, the Act. The Act amended sections 667 and 1170.12 (relating to Three
Strikes sentencing) and added section 1170.126 (relating to resentencing of defendants
previously sentenced under the Three Strikes law). Among other things, the Act allows a
defendant serving an indeterminate life term under the Three Strikes law to file a petition
for resentencing. (§ 1170.126, subd. (b).)
       This proceeding deals exclusively with the resentencing provisions of the
Three Strikes Reform Act, found in section 1170.126. A defendant is not eligible for
resentencing under the Act if the defendant’s current conviction (here, the felon-in-
possession conviction) involved any of the circumstances listed in section 667,
subdivision (e)(2)(C)(i)-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii).

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(§ 1170.126, subd. (e)(2).) The circumstance in those lists that is relevant to this case is
that “[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).)
       Section 1170.126 provides for three distinct and separate phases after a defendant
petitions for resentencing. First, the court conducts an initial review of the petition and
the defendant’s criminal records to determine whether the defendant satisfies the
minimum requirements for resentencing under section 1170.126, subdivision (e) (the
initial screening). Second, if the petition demonstrates a prima facie basis for
resentencing, the court conducts an evidentiary hearing to determine whether the
defendant has, in fact, met all statutory requirements and whether resentencing of the
defendant as a second-striker will pose an unreasonable risk of danger to public safety
(the qualification hearing). (§ 1170.126, subd. (f).) And third, if the defendant is eligible
for resentencing and resentencing does not pose an unreasonable risk of danger to public
safety, the court conducts a new sentencing hearing (the resentencing). (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1299 (Kaulick).)
       In this case, the trial court denied defendant’s petition for resentencing in the
initial screening because the facts supporting his felon-in-possession offense established
that he was armed with a firearm when he committed the offense.
       Because of the trial court’s reliance on the appellate opinion affirming defendant’s
conviction and because defendant asserts that such reliance was inappropriate, we quote
the relevant part of the opinion (People v. Johnson (Aug. 31, 2001, C034325 [nonpub.
opn.]) concerning the facts of defendant’s offense:
       “Defendant was charged with being a felon in possession of a firearm, driving
under the influence of alcohol, and driving with a blood alcohol level of over .08 percent.
The complaint further alleged that defendant had two prior convictions for robbery and a
prior driving under the influence conviction.



                                               3
       “On July 23, 1997, at 7:45 p.m., Sacramento Police Officer Michael Iannone
pulled over a black Mitsubishi Starion driven by defendant. Defendant's girlfriend,
Billeen Pruett, was in the passenger seat. At that time, they were homeless and all of
their possessions were in their car.
       “Defendant identified himself to the officer. The officer discovered defendant had
a suspended license. As a result, the officer asked defendant and Pruett to step out of the
car.
       “While Officer Iannone did not have a distinct recollection of ordering the people
out of the car, his standard practice would have been to direct the driver to get out of the
car and then the passenger. He testified that he was certain that he brought defendant out
of the car first and Pruett out later. The officer did not observe Pruett make any furtive
movements while she was in the car.
       “Officer Iannone next conducted an inventory search of the car. Underneath the
driver’s front seat, he found a loaded nine millimeter firearm. There were no identifiable
fingerprints on the gun. The officer also found some DMV paperwork in the car with the
defendant’s name on it.
       “At trial, Pruett testified the car belonged to defendant and that she never drove it.
The parties stipulated that the car was not registered to defendant.
       “At the time they were pulled over, Pruett knew that there was a gun in the car
because defendant had told her about it and showed it to her. Pruett said defendant had
the gun most of the time she knew him. Pruett testified that the gun was not hers.
Defendant and Pruett used the gun for protection because they lived on the streets and
down by the river. Pruett also testified that she was being stalked by her ex-boyfriend,
who also carried a gun.
       “The People dismissed the allegation of the prior driving under the influence
count. The jury found defendant guilty on all counts and found the allegations



                                              4
concerning the two prior robbery convictions true. On October 14, 1999, the court
sentenced defendant to 25 years to life in prison.” (People v. Johnson, supra, C034325.)
       In denying the petition for resentencing at the initial screening, the trial court
stated, referring to the appellate opinion: “This shows that defendant was ‘armed’ with
the firearm he was convicted of possessing, at the time of his possession of the firearm.
He was the driver of the car, and the firearm was loaded and available for his immediate
use, right underneath his own seat in the car.”
                                       DISCUSSION
                                               I
                                        Appealability
       This purports to be an appeal from the denial of the resentencing petition, and
defendant argues that the order is appealable. However, the appealability of an order
denying a defendant’s petition for resentencing under the Three Strikes Reform Act is
currently under review in the California Supreme Court. (See, e.g., Teal v. Superior
Court (Second App. Dist., Div. Seven, Perluss, P. J., with Zelon and Segal, J.J.,
concurring), review granted July 31, 2013, S211708 [not appealable, but treated as
petition for writ of mandate]; People v. Hurtado (Second App. Dist., Div. One, Mallano,
P. J., with Rothschild, J., and Johnson, J., concurring), review granted July 31, 2013,
S212017 [appealable]; People v. Leggett (Third App. Dist., Raye, P. J., with Robie and
Murray, J.J., concurring), review granted Dec. 18, 2013, S214264 [appealable under
some circumstances, not appealable under others].)
       Since our opining either way will not resolve the appealability issue, we elect to
treat the appeal as a petition for writ of mandate and reach the merits to promote judicial
efficiency and expedite final resolution of defendant’s petition without waiting for the
Supreme Court to act. (See Olson v. Cory (1983) 35 Cal.3d 390, 401 [court has power to
treat appeal as petition for writ of mandate under unusual circumstances]; In re Martinez,



                                              5
review granted May 14, 2014, S216922 [treating appeal of denial of petition for
resentencing as habeas corpus petition to avoid appealability issue].)
                                              II
                      Disqualification for Being Armed with a Firearm
         Defendant contends that the trial court improperly denied the petition for
resentencing based on the fact that he was armed with a firearm during the commission
of his felon-in-possession offense. He argues that: (1) the felon-in-possession offense is
not one of the disqualifying offenses to which an arming enhancement may be attached;
(2) no sentence was “imposed” for his arming; and (3) the court improperly relied on the
statement of facts in the appellate opinion to support its factual finding that he was
armed.
         Some of these arguments were recently considered and rejected in People v. White
(2014) 223 Cal.App.4th 512 (White). We also find no merit in the arguments.
         A.     Felon-in-Possession Not a Disqualifying Offense
         Defendant asserts that a court considering a petition for resentencing is precluded
from finding the defendant was armed during the commission of the offense if the only
current felony conviction was being a felon in possession. For this proposition, he relies
on People v. Bland (1995) 10 Cal.4th 991 (Bland), which held that the arming
enhancement under section 12022 “requires both that the ‘arming’ take place during the
underlying crime and that it have some ‘facilitative nexus’ to that offense.” (Id. at p.
1002, italics omitted.)
         Possessing a firearm and being armed are not necessarily the same. One is armed
with a firearm when it is available for offensive or defensive use. (Bland, supra, 10
Cal.4th at p. 997.) On the other hand, one may possess a firearm constructively without
possessing it physically. (White, supra, 223 Cal.App.4th at p. 524.) Therefore, one may
possess a firearm without being armed with the firearm because if it is possessed merely
constructively it is not available for offensive or defensive use.

                                               6
       In Bland, police officers searched the defendant’s house when he was detained in a
police car outside the house. They found drugs and firearms in the same room. (Bland,
supra, 10 Cal.4th at p. 995.) The court held that, even though the defendant was not
present and armed at the time of the search, the factfinder could infer from the presence
and proximity of the drugs and firearms that the defendant was armed when he
committed the drug offenses. (Id. at pp. 1002-1003.) “[D]rug possession is a crime that
continues throughout the time that the defendant has possession of the unlawful drugs.”
(Id. at p. 1001.) The court further held that the proximity of the drugs and firearm must
be more than “accidental or coincidental.” (Id. at p. 1003.) In this regard, the court said:
       “Of course, contemporaneous possession of illegal drugs and a firearm will satisfy
the statutory requirement of being ‘armed with a firearm in the commission’ of felony
drug possession only if the evidence shows a nexus or link between the firearm and the
drugs. The federal courts, in interpreting the federal counterpart to California’s weapons
enhancement law [citation], have described this link as a ‘facilitative nexus’ between the
drugs and the gun. [Citation.] Under federal law, which imposes specified prison terms
for using or carrying a firearm ‘ “during and in relation to” ’ a crime of drug trafficking,
‘the firearm must have some purpose or effect with respect to the drug trafficking crime;
its presence or involvement cannot be the result of accident or coincidence.’ [Citation.]
So too in California.” (Bland, supra, 10 Cal.4th at p. 1002, original italics.)
       Here, there was a close relationship between the felon-in-possession offense and
the arming. They were mutually facilitative. He possessed the firearm so that he could
be armed, and he was armed to facilitate his possession of the firearm. Defendant was
armed for protection, which can be inferred was to maintain possession of his belongings,
including the firearm. The arming with the firearm was no accident or coincidence in
relation to the possession of the firearm.
       Relying on In re Pritchett (1994) 26 Cal.App.4th 1754 (Pritchett), defendant
asserts that one cannot be armed with a firearm in the commission of being a felon in

                                              7
possession of a firearm. We disagree for two reasons: (1) as already discussed, the
arming was something more than mere possession and facilitated that possession and
(2) the holding in Pritchett appears to be contrary to the Supreme Court’s holding in
Bland.
         In Pritchett, a convicted felon battered his former girlfriend with the barrel of a
sawed-off shotgun. He was convicted of being a felon in possession of a firearm, and a
personal use enhancement was added under section 12022.5, subdivision (a). (Pritchett,
supra, 26 Cal.App.4th at p. 1755.) On the defendant’s petition for writ of habeas corpus,
however, the Court of Appeal, First Appellate District, Division Three (Merrill, J., with
White, P. J., and Chin, J., concurring), held that the use enhancement was improper, not
because the firearm was used as a club, but because defendant did not use the firearm
when he came into possession of it. The Pritchett court reasoned:
         “ ‘Use’ in section 12022.5 means, among other things, ‘ “. . . ‘ “to carry out a
purpose or action by means of,” to “make instrumental to an end or process,” and to
“apply to advantage.” ’ ” ’ [Citation.] Defined somewhat differently, it may mean ‘to
avail oneself of’ and ‘to employ.’ [Citation.] Although Pritchett used the shotgun as a
club during his possession of it, he did not use it ‘in the commission’ of his crime of
possession. 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.” (Pritchett, supra, 26 Cal.App.4th at p. 1757, italics & fn. omitted.)
         Unlike the facts in Pritchett, defendant’s arming here facilitated the possession, as
discussed above. Therefore, Pritchett is distinguishable.
         Pritchett also appears to be at odds with Bland, which was decided one year after
Pritchett. The reasoning in Pritchett suggests that the relevant moment for whether the
defendant used the firearm in the commission of his offense of being a felon in
possession of a firearm was when he acquired the firearm. Yet Bland holds that such a



                                                8
possession offense (drugs, in Bland) continues, and becoming armed during that
continuing period of possession supports an arming enhancement.
       Either way, whether we distinguish Pritchett or disagree with it based on Supreme
Court precedent, it does not help defendant.
       Finally, with respect to whether defendant was armed when he committed his
felon-in-possession offense, defendant argues that “[n]o defendant convicted of the stand-
alone offense of possession of a firearm pursuant to section 12021, subdivision (a) has
ever been found to have been ‘armed’ in the commission of the crime.” But that is beside
the point. When a trial court is called upon by the Three Strikes Reform Act to consider
the circumstances of a defendant’s current conviction, it is not to retroactively add an
arming enhancement. Instead, the Act calls upon the court to determine whether the
current conviction was committed in a way that shows that the defendant is too dangerous
to be sentenced more leniently. No statutory or constitutional principle impedes that
determination, which was done properly here.
       B.     Sentence Imposed for Arming
       Subdivision (e)(2) of section 1170.126 allows resentencing if “[t]he inmate’s
current sentence was not imposed for any of the offenses appearing [in the cited
statutes].” One of those statutory provisions, as we have discussed, does not identify
specific offenses but, instead, identifies circumstances of the offense – that is, using a
firearm, being armed with a firearm or deadly weapon, or intending to cause great bodily
injury. (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii).) In this case,
defendant was armed with a firearm when he committed the felon-in-possession offense,
and for that reason was found ineligible for resentencing.
       Defendant asserts: “No sentence was ever ‘imposed’ on [defendant] for being
armed with, or using, [a firearm] or intending to inflict great bodily injury. Instead, a
sentence was imposed on [defendant] for simply being a felon in possession of a gun.



                                               9
Consequently, the language of section 1170.126 precludes application of the
disqualifying condition of being ‘armed’ to [defendant].”
       Defendant’s assertion fails because a sentence was imposed for the felon-in-
possession offense and that offense disqualifies him from resentencing under the Three
Strikes Reform Act because during the commission of that offense he was armed. The
language disqualifying a defendant from resentencing if the current sentence was
imposed for a specified offense includes all offenses during which a defendant was
armed. (White, supra, 223 Cal.App.4th at p. 527.) Under the plain meaning of the Act,
defendant was ineligible for resentencing based solely on the circumstances of his felon-
in-possession offense. Nothing more was needed to establish his ineligibility.
       C.     Reliance on Appellate Opinion
       Defendant argues that the trial court improperly relied on the facts in the appellate
opinion (which resulted from his appeal of the current conviction) to determine whether
defendant was armed during the commission of his felon-in-possession offense. To the
contrary, the appellate opinion is part of the record of conviction which the court properly
used in determining defendant’s eligibility.
       The factual determination of whether the felon-in-possession offense was
committed under circumstances that disqualify defendant from resentencing under the
Three Strikes Reform Act is analogous to the factual determination of whether a prior
conviction was for a serious or violent felony under the Three Strikes law. Such factual
determinations about prior convictions are made by the court based on the record of
conviction. (See People v. Guerrero (1988) 44 Cal.3d 343, 355 [in determining facts
underlying prior convictions, court may look to entire record of conviction].) And the
appellate opinion is part of the record of conviction. (People v. Woodell (1998) 17
Cal.4th 448, 456.)
       While we speak of the relevant conviction in this case (the felon-in-possession
conviction) as the “current conviction” because defendant is still serving the

                                               10
indeterminate state prison term for that conviction, it is a prior conviction in the sense
that the judgment is final and this is a postconviction proceeding. The Three Strikes
Reform Act, itself, states that the trial court’s consideration of a petition for resentencing
constitutes a “ ‘post-conviction release proceeding.’ ” (§ 1170.126, subd. (m).)
Therefore, the court properly looked to the record of conviction, including the appellate
opinion, in deciding whether defendant was armed with a firearm during the commission
of his felon-in-possession offense.
       Defendant also finds fault in the trial court’s conclusion that he was armed when
he committed his felon-in-possession offense because there was conflicting evidence.
Conflicting evidence, however, does not cast doubt on the trial court’s factual findings
because we review factual findings for substantial evidence. (People v. Johnson (1980)
26 Cal.3d 557, 578.) Here, there was substantial evidence that defendant was armed.
       Furthermore, the jury’s finding that defendant possessed the firearm under the
facts presented at trial in this case was tantamount to a finding that he was armed with the
firearm because there was no factual scenario under which defendant could have been
guilty of being in possession of the firearm found under his seat without it being available
for offensive or defensive use. Therefore, considering the evidence presented at trial and
the jury’s verdict, a determination that defendant was armed during the offense is the
only reasonable conclusion.
       D.     Conclusion
       We agree with the White court that (1) “where the record establishes that a
defendant convicted under the pre-Proposition 36 version of the Three Strikes law as a
third strike offender 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,
thus, the defendant is not entitled to resentencing relief under the Reform Act,” and
(2) “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, under which the

                                              11
defendant was charged and convicted of possession of a firearm by a felon, did not allege
he or she was armed with a firearm during the commission of that possession offense.”
(White, supra, 223 Cal.App.4th at p. 527.)
                                              III
                                      Right to Hearing
       Defendant contends that he had a right to a hearing in the trial court before the
court denied his petition for resentencing. While he concedes that section 1170.126 does
not provide expressly for a hearing at the initial screening, he claims he had a due process
right to be present and to be heard. We disagree.
       Due process guarantees a criminal defendant “ ‘the right to a fair opportunity to
defend against the State’s accusations.’ ” (People v. Hansel (1992) 1 Cal.4th 1211, 1219,
quoting Chambers v. Mississippi (1973) 410 U.S. 284, 294 [35 L.Ed.2d 297, 308].)
However, the state may prescribe the procedures under which its laws are carried out, and
its decisions in this regard do not violate the due process clause unless they offend some
fundamental principle of justice. (People v. Frye (1998) 18 Cal.4th 894, 968-969,
disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 420-421.)
       The Three Strikes Reform Act provides for a hearing if resentencing is
appropriate. (See § 1170.126, subd. (m) [“resentencing hearing”].) And the defendant
has a due process right to a hearing at the qualification phase where the trial court makes
a discretionary decision concerning dangerousness. (Kaulick, supra, 215 Cal.App.4th at
pp. 1299-1300.) But neither the statutory scheme nor the due process clause requires a
hearing at the initial screening phase.
       The petition for resentencing is similar to a petition for writ of habeas corpus,
which is another postconviction proceeding. When a defendant files a petition for writ of
habeas corpus, the trial court first reviews the petition to determine whether it establishes
a prima facie case for relief. If it does not establish a prima facie case, the petitioner has



                                              12
no right to a hearing on the petition. It can be denied summarily, which does not violate
the petitioner’s due process rights. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
       The same is true with a petition for resentencing. A defendant has no right to a
hearing unless the initial screening of the petition and the defendant’s record of criminal
convictions supports relief. Defendant gives us no authoritative reason to deviate from
this procedure in the name of due process rights.
       In this case, the trial court considered defendant’s petition for resentencing along
with his record of conviction. That record of conviction included the appellate opinion
which showed that defendant’s conviction for being a felon in possession of a firearm
was tantamount to a finding that he was armed with a firearm because the facts showed
that the firearm the jury found defendant possessed was available for offensive or
defensive use. On this record, summary denial of the petition for resentencing was
proper and did not violate defendant’s due process rights.
       Defendant argues that we should treat the petition for resentencing as a sentencing
hearing, at which a defendant has a due process right to be present and to be heard. He
cites People v. Rodriguez (1998) 17 Cal.4th 253, which held that on remand after a
reversal of the sentencing the defendant has a due process right to be present and to be
heard at the new sentencing hearing. That case is easily distinguished because it dealt
with a sentencing hearing at which the trial court would exercise its discretion in
imposing the sentence. (Id. at pp. 258-260.) The petition for resentencing, on the other
hand, is a postconviction proceeding during which a defendant may be given partial
sentencing relief for a conviction already suffered, but only if the statute’s requirements
are met. Furthermore, at the initial screening, there is no discretion to be exercised by the
trial court. Accordingly, People v. Rodriguez does not change our analysis.
       The trial court properly denied defendant’s petition for resentencing summarily –
that is, without affording defendant an opportunity to be present and to be heard.



                                             13
                                   DISPOSITION
     The petition for writ of mandate is denied.



                                                   NICHOLSON   , Acting P. J.



We concur:



     ROBIE                , J.



     HOCH                 , J.




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