Filed 2/18/15 P. v. Davis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Respondent, E060014
v. (Super.Ct.No. RIF111066)
CHRISTOPHER DAVIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michele D. Levine,
Judge. Remanded with directions.
Esther Kim Hong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
1 This is an appeal by defendant and appellant Christopher Davis following the trial
court’s order denying defendant’s petition to recall his sentence under the Three Strikes
Reform Act of 2012, added by Proposition 36 (the Act). (Pen. Code, § 1170.126.)1
On appeal, defendant makes numerous arguments related to the denial of his petition for
resentencing. For the reasons explained below, we will remand the matter to allow the
trial court to make an eligibility finding consistent with this opinion.
I
FACTUAL AND PROCEDURAL BACKGROUND2
Early one morning in August 2002, while defendant was living with his girlfriend,
Lisa McDowell, in a one-bedroom apartment, United States Postal Inspectors searched
defendant and McDowell’s apartment. When the inspectors knocked and announced
their presence, McDowell immediately let them in. Defendant remained in the bedroom
while the inspectors repeatedly called for anyone else to come out. Finally, after the
inspectors called out defendant’s name, defendant exited the bedroom.
The inspectors searched the bedroom. Defendant’s pants with his wallet were on
the floor to the right of the bed. On top of the nightstand, on the right side of the bed,
was a box of .38-caliber ammunition, two .25-caliber bullets, and a 380-automatic bullet.
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual background of the underlying offense is taken from this court’s nonpublished opinion in defendant’s prior appeal following his current convictions (see People v. Davis (June 15, 2005, E036278) [nonpubl. opn.]).
2 There was also .25- and 380-caliber ammunition on top of the dresser. Inspector
Goodrich bumped the bed and a loaded .44-magnum semiautomatic handgun fell onto his
foot, from a cavity in the underside of the bed box spring. Inspector Griffin found in the
bedroom closet a plastic bag containing letters addressed to “Slow Poke” and to
“Mr. S. Capone”; photographs of defendant with fellow Insane Crip gang member Lovell
Polk, known as “Red”; and a couple .25-caliber bullets. Also in the closet were utility
bills and other papers bearing defendant’s name. Defendant’s gang moniker was “Slow
Poke” and sometimes he used the name, “Slow Capone.”
At trial, McDowell testified that she did not bring the ammunition or gun into the
apartment and the gun was not hers. She said defendant slept on the right side of the bed.
She saw him with the gun in the living room in February or March that year and told him
to get rid of it.
McDowell had convictions for robbery, petty theft with a prior, passing a bad
check, burglary, and giving a false I.D. to the police. At the time of her testimony, she
was in custody in Chowchilla for a probation violation.
Later on the day of the search, defendant called McDowell from the detention
center and told her to tell “cuz” that the police had seized the .44-magnum handgun.
Defendant had not previously been told the caliber of the gun the inspectors found in his
bedroom. The call was taped.
While detention center correctional deputy, Thomas Tanner, was screening inmate
mail, he noticed an envelope with defendant’s name and booking number on it and a
3 letter. The letter requested others, in effect, to intimidate or eliminate McDowell as a
witness.
On July 19, 2004, defendant was found guilty of ex-felon in possession of a
firearm (former § 12021, subd. (a)(1)) and unlawful possession of ammunition
(§ 12316, subd. (b)(1)). In a bifurcated proceeding, the trial court found true that
defendant had suffered 10 prior strike convictions (§§ 667, subd. (c) & (e)(2)(A),
1170.12, subd. (c)(2)(A)) and two prior prison terms (§ 667.5, subd. (b)). Defendant was
sentenced to a total term of 27 years to life in state prison.
On November 6, 2012, the electorate passed Proposition 36, also known as the
Act. Among other things, 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).) If the trial court determines, in its discretion, that
the defendant meets the criteria of section 1170.126, subdivision (e), the court may
resentence the defendant. (§ 1170.126, subds. (f), (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or
subdivision (c) of section 1170.12 “for a conviction 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.” (§ 1170.126, subd. (e)(1).) The Act makes
4 ineligible for resentencing those persons who “[d]uring the commission of the current
offense, the defendant used a firearm, [or] was armed with a firearm . . . .” (§§ 667,
subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii); see § 1170.126, subd. (e).)
On January 10, 2013, defendant, in pro. per., filed a petition for resentencing
under section 1170.126. The court thereafter appointed counsel to represent defendant.
On April 17, 2013, defendant’s counsel filed a resentencing brief, and again on May 6,
2013. On April 18, 2013, the People filed three oppositions to defendant’s petition for
resentencing. The People opposed the petition on the ground that defendant was
statutorily ineligible for resentencing under the Act because during the commission of his
commitment offenses, defendant was armed with a firearm. The People also opposed the
petition on the basis that defendant continued to pose an unreasonable risk of danger to
public safety based on his past criminal behavior and continued criminal behavior while
incarcerated.
The trial court heard the petition on November 8, 2013. At that time, defendant
filed a psychological report from Dr. Robert Suiter, as well as letters of support,
education progress reports, and education certificates. Following argument from the
parties, the trial court denied the petition, finding defendant continued to pose an
unreasonable risk of danger to public safety.3
Defendant timely filed an appeal on November 12, 2013. We note that in
3There is no indication in the record whether or not the trial court made the initial determination of eligibility for resentencing under section 1170.126.
5 Teal v. Superior Court (2014) 60 Cal.4th 595, 597, our Supreme Court recently
concluded decisions under the “Three Strikes Reform Act” are appealable orders.
II
DISCUSSION
A. The Act Generally
“The Act amended sections 667 and 1170.12 and added section 1170.126; it
changed the requirements for sentencing some third strike offenders. ‘Under the original
version of the three strikes law a recidivist with two or more prior strikes who is
convicted of any new felony is subject to an indeterminate life sentence. The Act diluted
the three strikes law by reserving the life sentence 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. [Citations.] The Act also created a postconviction release proceeding whereby
a prisoner who is serving an indeterminate life sentence imposed pursuant to 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.)’ ” (People v. Brimmer (2014) 230 Cal.App.4th 782, 791
[Fourth Dist., Div Two] (Brimmer), quoting People v. Yearwood (2013) 213 Cal.App.4th
161, 167-168 (Yearwood).)
6 “Thus, there are two parts to the 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 [citations]; 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.).” (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292, italics omitted (Kaulick).)
“The main difference between the prospective and the retrospective parts of the Act is
that the retrospective part of the Act contains an ‘escape valve’ from resentencing for
prisoners whose release poses a risk of danger.” (Id. at p. 1293.)
We agree with defendant that his current commitment felony offenses of felon in
possession of a firearm and unlawful possession of ammunition are not serious or violent
felonies 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. As previously noted, 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 the Act apply.
(§ 1170.126, subd. (e).)
Being armed with a firearm during the commission of a current offense is a
disqualifying factor listed in section 667, subdivision (e)(2)(C)(iii), and section 1170.12,
7 subdivision (c)(2)(C)(iii).4 Thus, 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).)
“In approving the 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
life sentence. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1,
subds. (3), (4) & (5), p. 105 (Voter Information Guide); see People v. White (2014) 223
Cal.App.4th 512, 522 . . . (White) (review den. Apr. 30, 2014, S217030 [Fourth Dist.,
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 used a firearm, [or] 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 used a firearm, [or] was armed with a firearm . . . .” (Italics added.)
8 Div. One].) The electorate also mandated that the 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; see White, supra, at p. 522.)
Accordingly, we liberally construe the provisions of the Act in order to effectuate its
foregoing purposes and note that findings in voter information guides may be used to
illuminate ambiguous or uncertain provisions of an enactment. [Citations.]” (Brimmer,
supra, 230 Cal.App.4th at p. 793, citing White, supra, at p. 522 and Yearwood, supra,
213 Cal.App.4th at pp. 170-171.)
B. Eligibility Finding
Anticipating that the People will argue he was ineligible for resentencing under the
armed with a firearm exclusion, defendant initially argues the People forfeited this claim
for failing to press the court to rule on this issue. In the alternative, defendant argues the
armed with a firearm exclusion does not apply, because the trial court, reviewing the
petition, implicitly found he was not armed with a firearm during his commitment
offenses and therefore eligible to be resentenced under the Act. The People respond that
they did not forfeit this claim since the trial court was not authorized to resentence him
under the Act, and any reduction in defendant’s sentence would have been unauthorized.
We reject defendant’s claim that the People forfeited the initial eligibility
determination. The People argued defendant was ineligible to be resentenced under the
Act based on the armed with a firearm exclusion in their opposition motions. Although
the People never “press[ed] for a ruling,” as defendant claims citing People v. Ramirez
9 (2006) 39 Cal.4th 398, 472-473, the trial court never made an initial ineligibility finding.
In ruling on a section 1170.126 resentencing petition, the trial court must first determine
whether an inmate is eligible for resentencing. (§ 1170.126, subd. (f).) Here, the court
never made the initial determination of eligibility based on defendant’s record of
conviction. As such, if defendant was ineligible due to being armed with a firearm
during the commission of his commitment offenses, the court would not be authorized to
make a dangerousness finding under the Act. (§ 1170.126, subd. (f); Kaulick, supra, 215
Cal.App.4th at pp. 1293-1294, fn. 12.)
Defendant ignores that there are two separate considerations under the Act. First,
the trial court must determine whether an inmate is eligible for resentencing. And
second, the trial court must evaluate whether resentencing an eligible inmate would pose
an unreasonable risk of danger to the public. An inmate is eligible for resentencing if:
the inmate is serving an indeterminate life term imposed for a non-serious, non-violent
felony conviction; the inmate’s current sentence was not imposed for any of the
disqualifying offenses specified in section 1170.126, subdivision (e)(2); and the inmate
has no prior convictions for any of the disqualifying offenses adverted to in section
1170.126, subdivision (e)(3). (§ 1170.126, subd. (e).) As previously noted and as held
by this court in Brimmer, supra, 230 Cal.App.4th 782, 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.” (Id. at p. 793, citing §§ 667,
10 subd. (e)(2)(C)(iii) & 1170.12, subd. (c)(2)(C)(iii), both cross-referenced in § 1170.126,
subd. (e)(2).)
If the inmate is eligible, the trial court must resentence the inmate unless, in its
discretion, the trial court determines resentencing the inmate would pose an unreasonable
risk of danger to the public. (§ 1170.126, subd. (f); Kaulick, supra, 215 Cal.App.4th at
pp. 1293-1294, fn. 12.) Hence, there are two separate considerations. First, the trial
court must determine whether an inmate is eligible for resentencing. And second, the
trial court must evaluate whether resentencing an eligible inmate would pose an
unreasonable risk of danger to the public. Here, the trial court never made the initial
determination of eligibility based on defendant’s record of conviction. Accordingly, as
explained below, the matter must be remanded.
C. Armed With a Firearm Exclusion
Based on the rule of lenity, the People’s failure to plead the firearm exclusion, and
the facts of this case, defendant argues that he was eligible for resentencing because he
was not armed with a firearm during the commission of his commitment offenses.
We note that several published cases have held that the Act does not contain a
pleading and proof requirement with respect to factors that disqualify defendants from
resentencing, including our decision in Brimmer, supra, 230 Cal.App.4th 782; White,
supra, 223 Cal.App.4th 512 (Fourth Dist., Div. One); People v. Osuna (2014) 225
Cal.App.4th 1020 (Osuna) (Fifth Dist.); People v. Blakely (2014) 225 Cal.App.4th 1042,
(Fifth Dist.) (Blakely); and People v. Elder (2014) 227 Cal.App.4th 1308 (Elder) (Third
11 Dist.). Our colleagues in White, supra, 223 Cal.App.4th 512, and more recently our
colleagues in Osuna, supra, 225 Cal.App.4th 1020 have found 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, at p. 527, italics in original; accord, Osuna, at p. 1033; Blakely, supra, 225
Cal.App.4th at p. 1058.) Our analysis has led this court to the same statutory
interpretation. (Brimmer, supra, 230 Cal.App.4th at pp. 793-803.)
We also find that using a disqualifying factor not pled and proved to the jury does
not violate a defendant’s constitutional rights to due process and a jury trial under
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. Appellate
courts have consistently found that the resentencing provisions under section 1170.126
are akin to a hearing regarding “downward sentence modifications due to intervening
laws” (Kaulick, supra, 215 Cal.App.4th at p. 1304), and therefore Apprendi and the
limitations of the Sixth Amendment do not apply to resentencing determinations.
(Accord, Brimmer, supra, 230 Cal.App.4th at pp. 804-805 [Apprendi and its progeny do
not apply to a determination of eligibility under the Act]; White, supra, 223 Cal.App.4th
at p. 527 [same]; Osuna, supra, 225 Cal.App.4th at p. 1039 [same]; Blakely, supra, 225
Cal.App.4th at p. 1060 [same].)
12 Determinations required under section 1170.126 are not factors justifying
enhancing a defendant’s sentence beyond the statutory maximum. (See Kaulick, supra,
215 Cal.App.4th at pp. 1302-1304.) As such, “the United States Supreme Court has
already concluded that its opinions regarding a defendant’s Sixth Amendment right to
have essential facts found by a jury beyond a reasonable doubt do not apply to limits on
downward sentence modifications due to intervening laws.” (Id. at p. 1304, citing Dillon
v. United States (2010) 560 U.S. 817, 829.) “The retrospective part of the Act is not
constitutionally required, but an act of lenity on the part of the electorate. It does not
provide for wholesale resentencing of eligible petitioners. Instead, it provides for a
proceeding where the original sentence may be modified downward. Any facts found at
such a proceeding, such as dangerousness, do not implicate Sixth Amendment issues.
Thus, there is no constitutional requirement that the facts be established beyond a
reasonable doubt.” (Kaulick, at pp. 1304-1305; accord, Brimmer, supra, at p. 805,
quoting Osuna, at p. 1040 [“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.” Osuna, at p. 1040; see
Blakely, at p. 1061].) “A trial court’s determination that a defendant is ineligible for
resentencing pursuant to section 1170.126 does ‘not increase the penalty to which [a]
defendant [is] already subject, but instead disqualifie[s] [a] defendant from an act of
lenity on the part of the electorate to which [a] defendant was not constitutionally
entitled.’ ” (Brimmer, at p. 805, quoting Osuna, at p. 1040.)
13 We further conclude that the Act does not require a facilitative nexus or a
“tethered” felony for the armed with a firearm exclusion to apply. Unlike section 12022,
which requires that a defendant be armed “in the commission of” a felony for additional
punishment to be imposed (italics added), the 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.’ (Webster’s 3d New
Internat. Dict. (1993) p. 703.)” (Osuna, supra, 225 Cal.App.4th at p. 1032.) Thus, there
must be a temporal nexus between the arming and the underlying felony, not a facilitative
one. The two are not the same. (People v. Bland (1995) 10 Cal.4th 991, 1002 (Bland)
[“ ‘in the commission’ of” requires both that “ ‘arming’ ” occur during underlying crime
and that it have facilitative nexus to offense].) Since the 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 plain 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 if the record
of conviction shows the firearm was readily available for offensive or defensive use.
(Brimmer, supra, 230 Cal.App.4th at pp. 796-800.)
In Brimmer, supra, 230 Cal.App.4th 782, following an analysis of the firearm
enhancement statutes, we held: “a defendant is armed if the gun has a facilitative nexus
14 with the underlying offense (i.e., it serves some purpose in connection with it); however,
this requires only that the defendant is aware during the commission of the offense of the
nearby presence of a gun available for use offensively or defensively, the presence of
which is not a matter of happenstance. This does not require any intent to use the gun
for this purpose.” (Id. at pp. 794-795, citing People v. Pitto (2008) 43 Cal.4th 228, 239-
240, italics in original.) We further explained: “Although 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, as occurred [there], such an act is not an essential
element of a violation of former section 12021, subdivision (a), because a conviction of
this offense may also be based on a defendant’s constructive possession of a firearm.
[Citations.] . . . 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.” (Brimmer at p. 795, citing People v. Sifuentes (2011) 195 Cal.App.4th
1410, 1417 [a conviction for possession of a gun can also be based on constructive
possession of the gun] and 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].)
The appellate court in White affirmed the holding that the defendant was not
eligible for resentencing because the “armed-with-a-firearm” exclusion applied. In that
case, the defendant’s underlying conviction was for possession of a firearm by a felon.
15 The court recognized that actual possession is not an essential element of that offense,
because a conviction for violation of former section 12021, subdivision (a), may be based
on a defendant’s constructive possession of a firearm. (White, supra, 223 Cal.App.4th at
p. 524.) Even though the information had not alleged that the defendant was armed with
a firearm nor contained a sentence enhancement allegation that he was so armed, the
record showed that he had been armed with a firearm during the commission of the
current offense. The court determined that the armed with a firearm exclusion applied
based on the record, and rejected the defendant’s claim that the pleading and proof
requirement applied to the retrospective portion of the Act. (Id. at p. 526-527.)
In April 2014, the Fifth District published four cases germane to this issue:
People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011 (Cervantes);
People v. Superior Court (Martinez) 225 Cal.App.4th 979, 984-985 (Martinez); Osuna,
supra, 225 Cal.App.4th 1020; and Blakely, supra, 225 Cal.App.4th 1042. The California
Supreme Court denied review in all of these cases on July 9, 2014.
In Blakely, the court held that a defendant convicted of being a felon in possession
of a firearm is not automatically disqualified from resentencing because of that
conviction. Such a defendant is disqualified for resentencing only if he or she had the
firearm available for offensive or defensive use.5 (Blakely, supra, 225 Cal.App.4th at
5 In addition to applying standard principles of statutory construction in the court’s analysis of section 1170.126 in Blakely, the court also considered the rule of lenity, which defendant argues is operative here. (Blakely, supra, 225 Cal.App.4th at pp. 1053-1054.)
16 pp. 1048, 1056-1063.) In Cervantes and Martinez, the court held a defendant may be
barred from resentencing and is armed with a firearm even if he or she was not carrying a
firearm on his or her person. (Cervantes, supra, 225 Cal.App.4th at pp. 1011-1018;
Martinez, supra, 225 Cal.App.4th at pp. 984-985, 989-995.)
In Osuna, supra, 225 Cal.App.4th 1020, the court held that where there are facts in
the record of conviction showing the defendant was armed with a firearm—meaning it
was available for immediate offensive or defensive use—during the commission of the
defendant’s current offense, the defendant is disqualified from resentencing under the Act
even though he or she was convicted of possessing the firearm and not of being armed
with it. The court further concluded that being armed with a firearm during the
commission of the current offense for the purposes of the Act does not require that the
possession be “tethered” to or have some “facilitative nexus” to an underlying felony.
(Osuna, at pp. 1026-1040.) The court explained: “unlike section 12022, which requires
that a defendant be armed ‘in the commission of’ a felony for additional punishment to be
imposed (italics added), the 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. [Citation.]” (Id. at p. 1032; accord, Brimmer, supra, 230
Cal.App.4th at pp. 798-799.)
17 Here, defendant was not per se prohibited under the Act from making a motion for
resentencing. Rather, if the record of conviction shows defendant had a firearm for
offensive or defensive use at the time of his arrest for being a felon in possession of a
firearm meant defendant was armed with a firearm. If such a finding was made, a
defendant would be disqualified from consideration for resentencing pursuant to the Act.
The trial court here did not make the initial threshold finding based on defendant’s entire
record of conviction. (Brimmer, supra, 230 Cal.App.4th at pp. 800-801, citing People v.
Woodell (1998) 17 Cal.4th 448, 454-457 and People v. Blackburn (1999) 72 Cal.App.4th
1520, 1526-1527, 1531-1532 [Fourth Dist., Div. Two] [preliminary hearing transcript on
prior offenses supported determination prior conviction was a serious felony]; accord,
White, supra, 223 Cal.App.4th at p. 525 [reliance on record of conviction including
information, pretrial motion, and closing argument]; Blakely, supra, 225 Cal.App.4th at
pp. 1058-1063 [a trial court may examine relevant, reliable, admissible portions of the
record of conviction to determine disqualifying factors]; People v. Bradford (2014) 227
Cal.App.4th 1322, 1336-1338 [reliance on record of conviction but may not consider new
evidence outside of the record of conviction].)
There is no indication in the record to show whether the court even assessed from
the record of conviction the existence of the disqualifying factor. And, the record does
not contain any findings made by the court as to the initial threshold question of
eligibility. As such, the matter must be remanded to the trial court to determine, based on
18 defendant’s entire record of conviction, the threshold question of eligibility, i.e., whether
defendant was armed with a firearm during the commission of his commitment offenses.
III
DISPOSITION
The judgment is remanded with directions in accordance with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
McKINSTER J.
MILLER J.