Filed 8/20/14 P. v. Lewis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Appellant, E058643
v. (Super.Ct.No. RIF096243)
ANTHONY LEE LEWIS, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Reversed with directions.
Paul E. Zellerbach, District Attorney, Emily R. Hanks, Deputy District Attorney,
for Plaintiff and Appellant.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant
and Respondent.
This is plaintiff and appellant the People’s appeal from the superior court’s order
granting defendant and respondent Anthony Lee Lewis’s petition for recall of sentence
1 under Proposition 36 (Pen. Code, § 1170.126).1 The People argue defendant was
“armed” with a firearm during the commission of the commitment offense—being a felon
in possession of a firearm (former § 12021, subd. (a)(1))—and thus was ineligible for
resentencing. As discussed below, the record on appeal does not contain the accusatory
pleading or the trial transcript, and so we cannot determine with certainty whether the
conviction was based on defendant being armed with the firearm he was convicted of
possessing. For this reason, we reverse and remand with directions to allow the trial
court to examine the evidence adduced at trial to determine and state on the record
whether the prosecution’s case was based on the theory that defendant was guilty of
possession of a firearm by a felon because he had possession of a firearm that was
capable of offensive or defensive use. The trial court shall then act on defendant’s
resentencing petition in a manner consistent with this opinion.
1 All section references are to the Penal Code unless otherwise indicated.
2 FACTS2 AND PROCEDURE
On August 30, 2001, the People filed an information charging defendant in count
1 with robbery (§ 211); in count 2 with first degree burglary (§ 459); in count 3 with
assault with a firearm (§ 245, subd. (a)(2)); in count 4 with felony child abuse (§ 273a,
subd. (a)); and in count 5 with being a felon in possession of a firearm. Defendant had
two prior convictions under the “Three Strikes” law.
On November 30, 2001, a jury convicted defendant in counts 2 and 4 of the lesser
included crimes of misdemeanor assault (§ 240) and misdemeanor child endangerment
(§ 273a, subd. (b)). The jury was unable to reach a verdict on charges of robbery (§ 211)
and first degree burglary (§ 459). The jury did convict defendant, as charged, of being a
felon in possession of a firearm. On April 5, 2002, the trial court sentenced defendant
2 The parties disagree regarding the facts underlying the charges and convictions; these facts are not conclusively set forth in the record on appeal—hence the disposition. The People’s rendering of these facts can be found in their opening brief in this appeal, in the People’s opposition to defendant’s petition for resentencing, filed March 6, 2013, as well as the People’s supplemental opposition filed April 25, 2013. These last two pleadings are contained in the clerk’s transcript in this appeal. The People’s brief and the pleadings below depict defendant and a codefendant entering the victim’s home and demanding money at gunpoint. The People describe defendant as pointing a firearm at the victim, forcing her into the bedroom, and taking a large quantity of money while the codefendant remained with the other occupants of the home and physically restrained the victim’s nine-year-old daughter. The People state that police recovered a loaded firearm from under defendant’s mattress in a later search of his home. Defendant in his responsive brief objects to the People’s factual statements as “unwarranted,” “misleading,” and “unsupported by proof and findings” and asks this court to disregard them. At the April 25, 2013, hearing on defendant’s petition, the court stated the felony “was based on the officer finding the firearm later when they went to arrest him in his house. I believe it was under a bed or some hidden place separately from the crime itself.”
3 under the Three Strikes law to 25 years to life for being a felon in possession of a firearm,
as well as concurrent sentences for the misdemeanor convictions and a concurrent one-
year sentence for a prior conviction. (§ 667, subd. (e)(2)(A).)
On November 6, 2012, the electorate passed Proposition 36, also known as the
“Three Strikes Reform Act” (Reform Act). 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).) Prisoners must first be
statutorily eligible to be considered for resentencing based on their criminal history and
current commitment offense. If a prisoner is statutorily eligible, the superior court can
then exercise its discretion to determine whether the prisoner should be resentenced to a
second-strike term.
Accordingly, defendant filed his petition for recall of sentence on December 3,
2012. The People filed its opposition on March 6, 2013, in which it presented its
statement of the facts of the crime. The People conceded that defendant was statutorily
eligible for discretionary resentencing, but argued the superior court should exercise its
discretion to decline to resentence defendant because he poses an unreasonable risk of
danger to public safety. On March 8, 2013, defendant filed a memorandum summarizing
his criminal history, accomplishments while in prison and factors supporting
resentencing. On April 25, 2013, defendant filed a brief on the issue of his eligibility for
discretionary resentencing. Also on that date the People filed a supplemental opposition,
4 for the first time taking the position that defendant is statutorily ineligible for
resentencing because he was “armed with a firearm” in the course of the commitment
offense—being a felon in possession of a firearm.
The court held a hearing on April 25, 2013. Initially, the court noted that
defendant was not convicted of the robbery, burglary or assault with a firearm charges
stemming from the incident described in the People’s opposition and supplemental
opposition. Rather, the jury convicted defendant of two misdemeanors. The court further
noted that the felony commitment offense was based on “the officer finding the firearm
later when they went to arrest him in his house. I believe it was under a bed or some
hidden place separately from the crime itself. So I think for this particular case, we can
say he wasn’t armed or used a firearm at the time of the offense, at least no jury so
found.” The court stated it believed the People were required to have “pled and proved”
that defendant was armed or used a firearm during the commitment offense. The court
found that defendant was statutorily eligible for resentencing, and then granted him
discretionary resentencing based on his overall history and track record while in custody.
The court sentenced defendant to a total of seven years as follows: three years on the
felon-in-possession charge, doubled to six years as a second strike, plus concurrent
sentences on the misdemeanors and one-year consecutive for having served a prior prison
term (§ 667). The court noted that defendant would be released “because he has been in
much longer than that.”
5 This appeal followed.3
DISCUSSION
The People contend defendant is statutorily ineligible to petition for a recall of his
sentence because during the commission of the commitment offense he “was armed with
a firearm” under section 1170.126, subdivision (e)(2). Specifically, the People argue the
plain language of Proposition 36 does not require a firearm enhancement and further the
statute does not require the People to plead and prove that defendant was armed with or
used a firearm during the commitment offense.
A. Principles of Statutory Interpretation
Statutory interpretation is a question of law. (Reno v. Baird (1998) 18 Cal.4th
640, 660.) Consequently, appellate courts apply their independent judgment when
interpreting a legislative act. (California Teachers Assn. v. San Diego Community
College Dist. (1981) 28 Cal.3d 692, 699.)
“Thus, the first step in statutory construction is to examine the statutory language
and give it a plain and commonsense meaning.” (People v. Verduzco (2012) 210
3 The appealability of the denial of a section 1170.126 petition is currently being considered by the Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708 [court held it was not appealable]; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017 [court held it was appealable].) Even if we were to conclude it was a nonappealable order, we could, in the interest of judicial economy and because of uncertainty in the law, treat the People’s appeal as a petition for writ of mandate. (Drum v. Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we will review the People’s appeal.
6 Cal.App.4th 1406, 1414.) In other words, “We must give the statutory provisions at issue
a reasonable and common sense interpretation, consistent with the apparent purpose and
intention of the Legislature. If possible, we will give significance to the plain meaning of
every word, phrase, and sentence of a statute in pursuance of the legislative purpose,
harmonizing the various parts of an enactment by considering each particular clause or
section in the context of the statutory framework as a whole. In this process, we must
take into account the context, object, and history of the legislation, as well as public
policy and contemporaneous construction in our attempt to arrive at a construction that is
practical rather than technical in nature. [Citations.]” (In re Rochelle B. (1996) 49
Cal.App.4th 1212, 1216; see also People v. Zambia (2011) 51 Cal.4th 965, 972.)
“If the meaning of the statute remains unclear after examination of both the
statute’s plain language and its legislative history, then we proceed to the third and final
step of the interpretive process. We apply ‘reason, practicality, and common sense to the
language at hand.’ [Citation.] The words of the statute should be interpreted ‘to make
them workable and reasonable.’ [Citation.]” (People v. Verduzco, supra, 210
Cal.App.4th at p. 1414.)
B. The Reform Act
In approving the Reform 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
7 life sentence. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1,
subds. (3), (4) & (5), p. 105; see Historical and Statutory Notes, 49 West’s Ann. Pen.
Code (2014 supp.) foll. § 667, pp. 40-41.) The electorate also approved a mandate that
the Reform 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.)
The Reform Act amended the Three Strikes Statutes (§§ 667, 1170.12) to require
that before a defendant may be sentenced to an indeterminate life term in prison under the
Three Strikes law, the new felony (the commitment offense) must generally qualify as a
serious or violent felony. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(A), (C).)
An exception to this general rule exists, among others, where the prosecution has pled
and proved the defendant used a firearm in the commission of the current offense, was
armed with a firearm or deadly weapon, or intended to cause great bodily injury to
another (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). If the prosecution
pleads and proves this exception exists, the defendant must be sentenced under the Three
Strikes law. (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.) There is no
dispute here that sections 667 and 1170.12 explicitly reserved life sentences for cases
where the current crime is a serious or violent felony or the prosecution has pled and
proved an enumerated disqualifying factor.
The Reform Act also created a post-conviction release proceeding by
adding section 1170.126. Section 1170.126 applies exclusively to those “persons
8 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.”
(§ 1170.126, subd. (a).) Under section 1170.126, “a prisoner who is serving an
indeterminate life sentence imposed pursuant to the [T]hree [S]trikes 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.”
(People v. Yearwood, supra, 213 Cal.App.4th at p. 168.)
Defendant’s current commitment felony offense of felon in possession of a firearm
is not a serious or violent felony 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. 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 Proposition 36
apply. (§ 1170.126, subd. (e).)
Section 1170.126, subdivision (e)(2), provides, as pertinent here, that a defendant
is eligible for resentencing if “[t]he inmate’s current sentence was not imposed for any
of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126,
9 subd. (e)(2).) Being armed with a firearm during the commission of a current offense is
listed in section 667, subdivision (e)(2)(C)(iii), and section 1170.12, subdivision
(c)(2)(C)(iii).4 Here, as the parties correctly acknowledge, only the second resentencing
eligibility criterion set forth in section 1170.126, subdivision (e)(2), is at issue in this
appeal.5 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).)
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 . . . 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 . . . was armed with a firearm . . . .” (Italics added.)
5 The first resentencing eligibility criterion set forth in section 1170.126, subdivision (e)(1), is met because defendant is serving an indeterminate life sentence for crimes that (as noted, ante ) are not serious or violent felonies.
10 C. “Armed With a Firearm”
The Reform Act does not define “armed with a firearm.” However, the Penal
Code provides definitions to distinguish between arming and use.6 Section 1203.06,
subdivision (b)(3), defines “armed with a firearm” as “to knowingly carry or have
available for use a firearm as a means of offense or defense.” Section 1203.06,
subdivision (b)(2), defines “used a firearm” as meaning “to display a firearm in a
menacing manner, to intentionally fire it, to intentionally strike or hit a human being with
it, or to use it in any manner that qualifies under Section 12022.5.”7 (See also
CALCRIM No. 3146 [adopts the statutory definition for “use of a firearm”]; People v.
Wims (1995) 10 Cal.4th 293, 302 [noting the definition in the standard jury instruction for
“use” was adapted from the statutory definition].)
The lead case construing the language of “armed with a firearm” and addressing
the definition of arming for purposes of former section 12022 is Bland, supra, 10 Cal.4th
991. In Bland, our Supreme Court, contrasting arming with use of a firearm, explained
that former section 12022, which imposed an additional prison term for anyone “armed
with a firearm in the commission” of a felony, applied where “the defendant has the
6 In sections 12022 and 12022.5, the Legislature drew a distinction between armed with a firearm in the commission of a felony and using a firearm in the commission of a felony, and it made firearm use subject to more severe penalties. (People v. Bland (1995) 10 Cal.4th 991, 996-997 (Bland).)
7 Section 12022.5, subdivision (a), provides in pertinent part: “[A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”
11 specified weapon available for use, either offensively or defensively.” (Id. at p. 997.)
The court explained: “[T]he statutory language ‘in the commission of a felony’ mean[s]
any time during and in furtherance of the felony. Therefore . . . [a] sentence enhancement
for being ‘armed’ with an assault weapon applies whenever during the commission of the
underlying felony the defendant had an assault weapon available for use in the
furtherance of that felony. [Citation.]” (Id. at p. 1001, italics omitted.) “[B]y specifying
that the added penalty applies only if the defendant is armed with a firearm ‘in the
commission’ of the felony offense, section 12022 implicitly requires both that the
‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’
to that offense.” (Bland, at p. 1002.)
The Supreme Court has subsequently reiterated Bland’s holding that the arming
under section 12022 must have occurred both during the commission of the underlying
crime and have a facilitative nexus to the crime. (In re Tameka C. (2000) 22 Cal.4th 190,
197.) And, most recently, in People v. Pitto (2008) 43 Cal.4th 228, in refusing to
overrule Bland, the court agreed with the defendant’s contention that “Bland appears to
have adopted a ‘facilitative nexus’ test and embraced a ‘purpose and effect’ standard.”
(Id. at p. 239.)
“The statutory elements of a violation of section 12021, subdivision (a)(1) . . . are
that a person, who has previously been convicted of a felony, had in his or her possession
or under his or her custody or control any firearm.” (People v. Padilla (2002) 98
Cal.App.4th 127, 138, italics added.) Although the crime of possession of a firearm by a
12 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 section 12021,
subdivision (a), because a conviction of this offense may also be based on a defendant’s
constructive possession of a firearm. (See People v. Sifuentes (2011) 195 Cal.App.4th
1410, 1417 (Sifuentes); 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].) “To
establish constructive possession, the prosecution must prove a defendant knowingly
exercised a right to control the prohibited item, either directly or through another person.”
(Sifuentes, supra, at p. 1417.) 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.
As the court in In re Pritchett (1994) 26 Cal.App.4th 1754 explained: “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. [¶] At most, [the
defendant] used the shotgun as an instrument of possession, or made ‘possessory use’ of
the shotgun, in the commission of his crime of [felon in] possession. However, if
possessory use is a legally cognizable concept, it does not support a use enhancement
because possessory use is an element of the crime of possession of a deadly weapon.”
(Id. at p. 1757.)
13 Defendant argues that he could not be armed with a firearm during the
commission of his possession of that firearm, because the language “during the
commission of the current offense” in the Reform Act requires an additional tethering
offense to trigger that exclusion provision. Defendant further maintains that “[n]o
defendant convicted of the stand-alone offense of possession of a firearm under section
12021, subdivision (a) has ever been found to have been ‘armed’ in the course of that
crime.”
Where the record establishes that a defendant convicted 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 the defendant is not entitled to resentencing relief
under the Reform Act. We therefore reject defendant’s argument that the plain language
of the armed-with-a-firearm exclusion requires that the arming be anchored or tethered to
an offense which does not include possession. Here, the record does not contain the
accusatory pleading or the trial transcript. We cannot know with certainty, therefore,
whether defendant was charged with being armed with a firearm during the commission
of his current commitment offense—being a felon in possession of a firearm. And, the
record on appeal does not contain the trial evidence regarding the factual circumstances
of the crime. We do note that the trial court that considered defendant’s resentencing
petition conducted the hearing as if the felony conviction was based on the firearm being
found under defendant’s mattress when officers later searched his home. While we do
14 not doubt the trial court’s reasons for so considering the basis of the felony conviction,
these reasons do not appear in the record on appeal.
Defendant’s exact arguments were recently rejected by our colleagues in People v.
White (2014) 223 Cal.App.4th 512, 522 (White) (petn. for review denied Apr. 30, 2014
[Fourth Dist., Div. One].) White deemed it appropriate for the court to look beyond the
crime for which defendant had been sentenced to determine whether the “armed-with-a-
firearm” exception to resentencing applied. (Id. at p. 523.) There, the defendant had
been convicted and sentenced as a felon in possession of a firearm. The court recognized
that “possession of a firearm does not necessarily require that the possessor be armed
with it” (id. at p. 524), but affirmed the denial of resentencing because “the record of
conviction establishes that the applicable resentencing eligibility criterion set forth in
section 1170.126[, subdivision] (e)(2) is not satisfied, and, thus, [the defendant] is
ineligible for resentencing relief.” (Id. at p. 524.)
The trial evidence in White showed that the prosecution’s case was not based on
the theory that White was guilty of possession of a firearm by a felon because he had
constructive possession of the firearm; it was based on the theory that he was guilty of
that offense because he had actual physical possession of the firearm. (White, supra, 223
Cal.App.4th at p. 525.) The court noted: “The trial evidence shows the police officers
conducting a surveillance of White’s residence saw White walking towards his pickup
truck and carrying a rolled-up cloth (sweatpants) with an object inside. The officers
believed White might be armed, and when they moved towards him and drew their guns,
15 White began to run, reached inside the rolled-up sweatpants he was carrying, and soon
thereafter threw both the sweatpants and the object inside the sweatpants into the bed of
his truck. The officers arrested White and found that the object he had thrown into the
truck bed was a loaded .357-magnum revolver. [¶] Furthermore, the record shows White
asserted in a pretrial motion that the object he threw into the back of his truck was ‘a
hand gun in a holster rolled up inside’ the sweatpants. Also, White’s counsel stipulated
during his closing argument at trial that White had been armed.” (Ibid.)
There is no evidence in this record to show that defendant was armed with the
firearm during his commission of the current offense, i.e., that he had ready access to the
firearm during this offense. The record here does not show the prosecution proved that
defendant not only possessed the firearm, but also that he was armed with the firearm.
We will therefore remand the matter to allow the trial court to examine the evidence
adduced at trial to determine and state on the record whether the evidence shows that
defendant was guilty of possession of a firearm by a felon because he had actual physical
possession of the firearm.
D. “Plead and Prove” Requirement
The People argue that the resentencing provisions of section 1170.126 do not
contain a pleading and proof requirement.
Section 667, subdivision (e)(2)(C), provides in pertinent part that, “[i]f a defendant
has two or more prior serious and/or violent felony convictions . . . and the current
offense is not a serious or violent felony, . . . the defendant shall be sentenced” (italics
16 added) as a second strike offender “unless the prosecution pleads and proves” (italics
added) any of the four enumerated exceptions or exclusions set forth in clauses (i)
through (iv) of section 667, subdivision (e)(2)(C). (See People v. Superior Court
(Kaulick) (2013) 215 Cal.App.4th 1279, 1293 (Kaulick).)
Section 1170.12, subdivision (c)(2)(C), similarly provides that, “[i]f a defendant
has two or more prior serious and/or violent felony convictions . . . and the current
offense is not a [serious or violent] felony . . . , the defendant shall be sentenced” (italics
added) as a second strike offender “unless the prosecution pleads and proves” (italics
added) any of the four enumerated exceptions or exclusions set forth in clauses (i)
through (iv) of section 1170.12, subdivision (c)(2)(C). (See Kaulick, supra, 215
Cal.App.4th at p. 1293.)
In White, supra, 223 Cal.App.4th 512 the inmate claimed that the pleading and
proof requirement set forth in both section 667, subdivision (e)(2)(C), and section
1170.12, subdivision (c)(2)(C), “‘is incorporated into section 1170.126.’” (White at p.
526.) The White court rejected this claim, finding the inmate’s reliance on the plead-and-
prove language was unavailing for two principal reasons. (Ibid.) The court explained:
“First, although section 1170.126[, subdivision] (e)(2) expressly cross-references
‘sections 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
17 the plead-and-prove language. [¶] Second, what White refers to as 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, supra, 223 Cal.App.4th at pp. 526-527.)
The White court, quoting Kaulick, also explained that “‘there are two parts to the
[Reform 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 (Pen.
Code, §§ 667, 1170.12); 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).’ [Citation.] The
Kaulick court further explained that, ‘under the prospective part of the [Reform Act], if
the defendant’s current third strike offense is not serious or violent, and none of four
enumerated exceptions applies, the defendant “shall be” sentenced as if the defendant had
only a single prior strike.’ [Citation.]” (White, supra, 223 Cal.App.4th at p. 527, citing
and quoting Kaulick, supra, 215 Cal.App.4th at pp. 1292-1293, fn. omitted.)
For the reasons explained in White and Kaulick, we conclude that the plead-and-
prove language is not incorporated into section 1170.126.
18 In sum, we conclude that, where the record establishes the prosecution’s case was
based on the theory a defendant convicted of possession of a firearm by a felon used or
was physically armed with the firearm during the commission of that offense, the armed-
with-a-firearm exclusion applies and, thus, a defendant is not entitled to resentencing
relief under the Reform Act. We also hold that, 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 did not allege he or she used or was armed with a firearm during the
commission of that possession offense.
DISPOSITION
The judgment is reversed and remanded with directions to allow the trial court to
examine the evidence adduced at trial to determine and state on the record whether the
prosecution’s case was based on the theory that defendant was guilty of possession of a
firearm by a felon based on evidence consistent with this opinion. The trial court shall
then act on defendant’s resentencing petition in a manner consistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
RICHLI J.
MILLER J.