Filed 1/30/15 P. v. Garcia 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                  C075069

         v.                                                                      (Super. Ct. No. CRF10491)

GEORGE ISEQUIEL GARCIA,

                   Defendant and Appellant.




         Defendant George Isequiel Garcia filed a petition for resentencing in the trial court
pursuant to Penal Code section 1170.126.1 Section 1170.126 was added pursuant to
Proposition 36, the Three Strikes Reform Act of 2012 (the Act). The trial court denied
defendant’s petition. The trial court determined that defendant is ineligible for
resentencing because he was armed with a firearm during the commission of his most




1 Undesignated statutory references are to the Penal Code.


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recent offense (possession of a firearm by a convicted felon). The trial court also denied
the petition based on defendant’s dangerousness.
       Defendant now contends (1) the trial court erred in finding him ineligible for
resentencing; (2) defendant was entitled to automatic nondiscretionary resentencing
under section 1170.12 based on principles of retroactivity; and (3) the trial court denied
defendant a fair hearing on whether resentencing would pose an unreasonable risk to
public safety.
       We conclude (1) the record of conviction for possession of a firearm by a
convicted felon supports the trial court’s determination that defendant was armed with a
firearm during the commission of the offense, thereby rendering defendant ineligible for
resentencing under section 1170.126; (2) defendant is not entitled to automatic
nondiscretionary resentencing because section 1170.126 is the equivalent of a “saving
clause” that defeats the presumption of retroactivity; and (3) any error in making the
alternative finding of dangerousness was harmless.
       We will affirm the trial court’s order denying the petition for recall and
resentencing.
                                     BACKGROUND
       A Marysville police officer stopped defendant on September 19, 2010, for driving
with expired registration tags. Because the car registration had expired more than six
months before the traffic stop, the officer advised defendant the car would be towed and
directed defendant to retrieve his belongings. Defendant removed a long brown wallet
from the car. The officer subsequently removed a loaded gun from the trunk of the car,
and a search of defendant found a methamphetamine pipe in one of defendant’s pockets
and a loaded pistol in his wallet.
       Following a court trial, the trial court convicted defendant on possession of a
firearm by a convicted felon (former § 12021, subd. (a)(1), now § 29800 -- counts 1 and
2), possession of ammunition by a convicted felon (former § 12316, subd. (b)(1), now

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§ 16150), and possession of drug paraphernalia (Health & Saf. Code, § 11364). The trial
court also found true allegations that defendant had two prior strike convictions. The trial
court sentenced defendant to 25 years to life in prison on the count 1 conviction for
possession of a firearm by a convicted felon, imposed a concurrent 25-to-life sentence on
the count 2 conviction for possession of a firearm by a convicted felon, and stayed
sentence on the conviction for possession of ammunition by a convicted felon. This court
affirmed the judgment on November 26, 2012.
       Defendant filed a petition for recall and resentencing and motion for appointment
of counsel on May 23, 2013. The People filed an opposition arguing defendant is
ineligible for resentencing because he was armed during the commission of his offense
(possession of a firearm by a convicted felon). Defendant responded that the People did
not plead and prove that defendant was armed during the commission of the possession
offenses, and in any event, possession was not the same as being armed. The trial court
found that defendant was ineligible for resentencing because he was armed with a firearm
during the commission of his offense. In addition, the trial court orally explained that it
was also denying the petition based on defendant’s dangerousness.
                                        DISCUSSION
                                               I
       Defendant contends the trial court erred in finding him ineligible for resentencing.
He argues (A) a conviction for possession of a firearm by a convicted felon does not
necessarily support a finding that defendant was armed with a firearm during the
commission of the offense, (B) there must by an underlying tethering offense during
which the defendant was armed, and (C) the People did not plead or prove the
ineligibility factor in the underlying case.
                                               A
       We begin with defendant’s argument that a conviction for possession of a firearm
by a convicted felon does not necessarily support a finding that defendant was armed

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with a firearm during the commission of the offense. Section 1170.126 allows
defendants serving a life term for a third strike to petition for recall and resentencing.
(§ 1170.126, subd. (b).) Eligibility for recall of sentence is limited to defendants serving
indeterminate terms of life in prison under the three strikes law for felonies that are
neither serious nor violent. (§ 1170.126, subd. (b).) But a defendant is ineligible for
resentencing if, “[d]uring the commission of the current offense, the defendant used a
firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily
injury to another person.” (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii).)
       According to defendant, the language “[d]uring the commission” does not “define
a criminal act or offense, but describes an aspect of the underlying criminal act that is not
always present and that warrants additional punishment, or in this context,
disqualification.” He claims it is impermissible “bootstrapping” to find that a possession
violation establishes the “arming” circumstance in question; that would allow “the same
conduct which defines the offense to be used to describe an aspect of that offense that
warrants disqualification. The law simply does not allow that result.”
       Defendant’s argument misstates the nature of the factors that render a defendant
ineligible for resentencing. “The eligibility criteria here refer to something that occurs
‘[d]uring the commission of the current offense,’ that being ‘the defendant used a
firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily
injury to another person.’ [Citation.] By referring to those facts attendant to commission
of the actual offense, the express statutory language requires the trial court to make a
factual determination that is not limited by a review of the particular statutory offenses
and enhancements of which petitioner was convicted.” (People v. Bradford (2014)
227 Cal.App.4th 1322, 1332 (Bradford).) In order to determine whether a defendant is
ineligible for resentencing, a trial court examines the “conduct that occurs during the
commission of an offense.” (Id. at p. 1333.) The trial court must therefore “consider the
nature of a petitioner’s prior conviction. Specifically, the court must consider whether,

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during the commission of an offense that has been previously adjudicated at the time of
the resentencing proceedings, ‘the defendant used a firearm, was armed with a firearm or
deadly weapon, or intended to cause great bodily injury to another person.’ [Citations.]”
(Id. at pp. 1338-1339.) The trial court may look at “the record of conviction” as that
phrase is defined in the cases addressing whether a prior conviction is a serious felony.
(Id. at p. 1338; see People v. Woodell (1998) 17 Cal.4th 448; People v. Guerrero (1988)
44 Cal.3d 343.) That includes the trial and appellate record of the conviction and any
appellate opinion in the case. (Woodell, supra, 17 Cal.4th at p. 456.)
       The appellate opinion affirming defendant’s conviction indicates defendant had a
firearm in a wallet in the center console of his car; defendant removed the wallet before
the car was towed, and the firearm was found on defendant when he was searched.
Defendant was armed with the firearm because the weapon was physically available to
him for his use. (People v. Bland (1995) 10 Cal.4th 991, 1001.)
                                               B
       We turn next to defendant’s argument that there must by an underlying tethering
offense during which the defendant was armed. Defendant argues the language in the
Act mirrors the language in section 12022. But the language is actually different.
Section 12022 authorizes a sentencing enhancement when a defendant is armed with a
firearm “in the commission or attempted commission of the underlying felony.”
(§ 12022, subd. (a)(1), emphasis added.) Whereas section 1170.126, subdivision (e)(2)
renders defendant ineligible for resentencing if “[d]uring the commission of the current
offense, the defendant . . . was armed with a firearm . . . .” (§ 667, subd. (e)(2)(C)(iii).)
       Defendant’s argument has been expressly rejected based on these differences in
language and purpose. (People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314
(Elder); People v. Osuna (2014) 225 Cal.App.4th 1020, 1032 (Osuna).) As the court
explained in Osuna, the defendant in that case was armed with a firearm “during” the
commission of his possession offense, not “in” the commission of his possession offense.

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(Osuna, supra, 225 Cal.App.4th at p. 1032.) “There was no facilitative nexus; his having
the firearm available for use did not further his illegal possession of it. There was,
however, a temporal nexus.” (Ibid.) Because the Act uses the phrase “[d]uring the
commission” and not “in the commission,” and because the Act does not impose
additional punishment but rather the opportunity for reduced punishment, the court in
Osuna concluded “the literal language of the Act disqualifies an inmate from
resentencing if he or she was armed with a firearm during the unlawful possession of that
firearm.” (Osuna, supra, 225 Cal.App.4th at p. 1032.) Other courts have held that when
a defendant is armed with a firearm during the commission of the offense of possession
of a firearm by a convicted felon, the defendant is ineligible for resentencing under
section 1170.126. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1054; People v.
White (2014) 223 Cal.App.4th 512, 524.)
       Here, because the record indicates defendant held one of the firearms, the trial
court did not err in finding that he was ineligible for section 1170.126 resentencing.
                                             C
       Defendant also argues the trial court erred in finding him ineligible for
resentencing because the People did not plead or prove the ineligibility factor in the
underlying case.
       But defendant’s interpretation was rejected by two decisions from this court
(Elder, supra, 227 Cal.App.4th at pp. 1311-1312; Bradford, supra, 227 Cal.App.4th at
pp. 1333-1336), as well as every other court of appeal to consider it. (See Osuna, supra,
225 Cal.App.4th at p. 1033; People v. Blakely, supra, 225 Cal.App.4th at p. 1058;
People v. White, supra, 223 Cal.App.4th at pp. 526-527.) Those cases held that the
omission of a pleading and proof requirement in section 1170.126 was dispositive.
(See Elder, supra, 227 Cal.App.4th at pp. 1314-1315.) We decline to depart from that
precedent.



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                                               II
       Defendant next asserts he was entitled to automatic nondiscretionary resentencing
under section 1170.12. He claims he should have been sentenced under the Act’s
changes to the three strikes law because his conviction was not final by the effective date
of that enactment, November 7, 2012. Defendant relies on the rule of retroactivity set
forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). Under the Estrada rule, a
legislative amendment that lessens criminal punishment is presumed to apply to all cases
not yet final (the Legislature deeming its former penalty too severe), unless there is a
“saving clause” providing for prospective application. (Id. at pp. 742, 745, 748.)
       However, in People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood), the
Fifth Appellate District concluded section 1170.126 is the equivalent of a “saving clause”
that defeats the presumption of retroactivity in Estrada for persons like defendant whose
appeals were pending when the Act became effective. (Yearwood, supra,
213 Cal.App.4th at pp. 172, 176.) Like in Yearwood, we conclude Estrada does not
apply and defendant’s only recourse was his petition for recall of sentence in the trial
court pursuant to section 1170.126. He is therefore not entitled to a remand for
resentencing under the amendments to sections 667 and 1170.12 unless he can satisfy the
requirements of section 1170.126. (Yearwood, at pp. 171-172, 176.)
                                               III
       In addition, defendant claims the trial court denied him a fair hearing on whether
resentencing would pose an unreasonable risk to public safety.
       Section 1170.126 requires the trial court to make a threshold determination
regarding whether a defendant is eligible for recall of sentence and resentencing. “Upon
receiving a petition for recall of sentence under this section, the court shall determine
whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced pursuant to paragraph (1) of
subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12

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unless the court, in its discretion, determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) “In exercising
its discretion in subdivision (f), the court may consider: [¶] (1) The petitioner’s criminal
conviction history, including the type of crimes committed, the extent of injury to
victims, the length of prior prison commitments, and the remoteness of the crimes; [¶] (2)
The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and
[¶] (3) Any other evidence the court, within its discretion, determines to be relevant in
deciding whether a new sentence would result in an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (g).)
       Here, the trial court made the threshold determination that defendant is ineligible
for resentencing. As a result, there was no need for the trial court to determine whether
resentencing defendant would pose an unreasonable risk of danger to public safety, and
no need for a further evidentiary hearing on that issue. Because we have concluded the
trial court properly found defendant ineligible for resentencing, any error in making the
alternative finding was harmless under any standard.
                                      DISPOSITION
       The order denying the petition for recall and resentencing is affirmed.



                                                                MAURO                  , J.


We concur:


             NICHOLSON                , Acting P. J.


             DUARTE                   , J.




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