Filed 8/4/14 P. v. Michael M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E059216
v. (Super.Ct.No. INF040548)
MICHAEL M., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford,
Jr., Judge. Affirmed.
Patricia J. Ulibarri, 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, Assistant Attorney General, Eric A. Swenson and Michael
Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
1 This is an appeal by defendant and appellant Michael M. 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 Reform Act). (Pen. Code, § 1170.126.)1
On appeal, defendant argues that (1) the trial court denied his due process rights by
finding him ineligible for resentencing under the Reform Act because the crime of
possession of a firearm by a felon is not a disqualifying offense under section 667,
subdivision (e)(2)(C)(iii); (2) the trial court abused its discretion in finding he posed an
unreasonable risk of danger to public safety without allowing defense counsel a
reasonable opportunity to prepare; and (3) he was denied effective assistance of counsel.
For the reasons explained below, we will affirm the trial court’s order.
I
FACTUAL AND PROCEDURAL BACKGROUND2
On May 5, 2002, a patrol officer initiated a traffic stop on a vehicle for
excessive speed. Upon contacting the four occupants of the vehicle, one of the
passengers, seated in the right rear seat and identified as defendant, informed the officer
that he had an outstanding warrant. A computer check revealed that defendant was a
parolee at large with a warrant. The officer searched defendant and found a “‘Speedy
1 All future statutory references are to the Penal Code unless otherwise stated.
2 The factual background of the underlying offense is taken from the probation report.
2 Loader’” containing six rounds of .45-caliber ammunition, as well as four other rounds of
the same ammunition.
A search of the vehicle revealed a loaded .25-caliber semiautomatic handgun with
one bullet in the chamber and seven in the magazine clip under the right front passenger’s
seat; and a loaded .45-caliber revolver in a pouch attached to the back of the right front
passenger’s seat (this pouch was directly in front of defendant’s rear passenger seat). The
revolver contained six rounds of the same ammunition as found in defendant’s pocket.
Another passenger was found in possession of a large amount of .25-caliber ammunition
and 1.5 grams of methamphetamine. A police scanner was also found in the vehicle and
was set on the Palm Springs frequency.
The four occupants of the vehicle were arrested and transported to the police
station. Defendant was unable to be interviewed as he had consumed a large amount of
methamphetamine when the vehicle was pulled over. Defendant was subsequently
transported to a hospital for treatment of possible overdose.
On January 22, 2003, an information was filed charging defendant with possession
of ammunition by a felon (Welf. & Inst. Code, §§ 8100 & 8103); possession of a firearm
by a felon (former §§ 12021/12021.1);3 and possession of methamphetamine (Health &
3 Effective January 1, 2012, former section 12021(a) was repealed and reenacted without substantive change as section 29800, subdivision (a). (See Cal. Law Revision Com. com. & Historical and Statutory Notes, 51D Pt. 4 West’s Ann. Pen. Code (2012 ed.) foll. § 29800, p. 194.) All further references to section 12021 are to the former version.
3 Saf. Code, § 11377, subd. (a)). The information further alleged that defendant had
sustained three prior serious and violent felony convictions (§§ 667, subds. (c) & (e),
1170.12, subd. (c)) for felon in possession of a firearm (§ 12021.1), assault with a deadly
weapon (§ 245, subd. (a)(1)), and robbery (§ 211). The information also alleged that
defendant had served three prior prison terms (§ 667.5, subd. (b)).4
On November 18, 2003, defendant was convicted of possession of ammunition by
a felon and possession of a firearm by a felon. It was also found true that defendant had
suffered three prior strike convictions and three prior prison terms. Defendant was
subsequently sentenced to 28 years to life in state prison with credit for time served.
On November 6, 2012, the electorate passed Proposition 36, also known as the
Reform 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
4 Although not part of the record, the information was apparently amended on June 23, 2003. The amended information deleted the drug offense charge, but otherwise contained the same allegations.
4 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 [s]ection 667.5 or
subdivision (c) of [s]ection 1192.7.” (§ 1170.126, subd. (e)(1).)
On January 29, 2013, defendant filed a petition for resentencing under
section 1170.126. The People opposed the petition on the grounds that defendant was
statutorily ineligible under the Reform Act because he was armed with a firearm during
the commission of the commitment offenses and because he posed an unreasonable risk
of danger to public safety.
The trial court heard the petition on July 16, 2013. Following argument from the
parties, the trial court denied the petition, finding defendant ineligible for resentencing
because defendant was armed with a firearm within the meaning of the armed-with-a-
firearm exclusion when he committed his current offense. The court also found
defendant was not eligible for resentencing because defendant posed an unreasonable risk
On July 17, 2013, defendant filed a notice of appeal.5
5 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 defendant’s appeal as a petition for writ of habeas corpus or petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating [footnote continued on next page]
5 II
DISCUSSION
Defendant argues that the trial court denied his due process rights by
finding him ineligible for resentencing under the Reform Act because the crime of
possession of a firearm by a felon is not a disqualifying offense under section 667,
subdivision (e)(2)(C)(iii). Specifically, defendant argues that he was statutorily eligible
under the plain language of the Reform Act, because the statute does not “encompass the
independent offense of possession,” instead the prosecution must plead and prove
defendant was “armed” during the commission of a separate, tethering felony. Defendant
further claims that using a disqualifying factor not pled and proved to the jury would
violate his constitutional rights to due process and a jury trial under Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi), and that the trial court’s “literal, but implausible,
interpretation of [the Reform Act] . . . produce[d] an absurd, unjust, and unconstitutional
result.”
Defendant also asserts that, assuming he was eligible for resentencing, the matter
should be remanded because the trial court abused its discretion by making a dangerous
finding without allowing counsel a reasonable opportunity to prepare, and because the
trial court stated that if defendant was eligible, defendant would have an opportunity to
[footnote continued from previous page] appeal as petition for writ of mandate due to uncertainty in the law].) In any event, we will review defendant’s appeal.
6 put forth evidence.6 In the alternative, defendant claims that he was denied effective
assistance of counsel when counsel was not prepared to put forth evidence concerning the
dangerousness issue and for counsel’s failure to object on Apprendi grounds.
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
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
6The trial court appeared to suggest that if defendant was statutorily eligible, the court would allow further evidence.
7 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
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.) 7 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
7 The People request that we take judicial notice of the Official Voter Information Guide for the California General Election of November 6, 2012, pages 48-53 and pages 105-110, plus the title page, relating to the Reform Act. We will grant that request pursuant to Evidence Code sections 452 and 459.
8 Prop. 36, § 7, p. 110.) Accordingly, we liberally construe the provisions of the Reform
Act in order to effectuate its foregoing purposes.
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.)
The Reform Act also created a post-conviction release proceeding by adding
section 1170.126. Section 1170.126 applies exclusively to those “persons presently
serving an indeterminate term of imprisonment pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
whose sentence under this act would not have been an indeterminate life sentence.”
(§ 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
9 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 offenses of felon in possession of
ammunition and felon in possession of a firearm are not violent felonies within the
meaning of section 667.5, subdivision (c), or serious felonies within the meaning of
section 1192.7, subdivision (c). However, the inquiry does not end with whether or not
the current offenses are 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 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,
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).8 Under the plain language of the armed-with-a-firearm
8 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 [footnote continued on next page]
10 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).)
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.9 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), currently states “‘used a firearm’ means to display a firearm in a
menacing manner, to intentionally fire it, to intentionally strike or hit a human being with
[footnote continued from previous page] 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.)
9In 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).)
11 it, or to use it in any manner that qualifies under Section 12022.5.”10 (See 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]; People v. Johnson (1995) 38 Cal.App.4th 1315,
1319 [declaring the statutory definition of gun use in section 1203.06 applicable to
section 12022.5].)
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
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
10 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.”
12 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 felon may involve the act of personally carrying or being in actual physical possession
of a firearm, as occurred here, 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”
13 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.
Defendant argues that he could not be armed with a firearm during the
commission of his possession of that firearm, because one is not “armed” with a firearm
during the commission of possession of that firearm; that the language “during the
commission of the current offense” in the Reform Act requires an additional tethering
offense to trigger that exclusion provision; and that no sentence was ever imposed on him
for being armed with a firearm.
As the People point out, defendant’s exact arguments were recently rejected by
our colleagues in People v. White (2014) 223 Cal.App.4th 512, 522-524 (White) (review
den. Apr. 30, 2014, S217030 [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
14 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.)
Here, the accusatory pleading charged defendant with possession of ammunition
by a felon and possession of a firearm by a felon by alleging the essential elements of
those offenses. Although the information did not allege that defendant was armed with a
firearm when he committed that offense, and it contained no sentence enhancement
allegation that he was armed with a firearm, the record shows the prosecution’s case was
based on evidence that defendant not only possessed the firearm, but also that he was
armed with the firearm, which was available for immediate use, during his commission
of the current offenses. Specifically, the record demonstrates that defendant not only
had a firearm in his possession or under his custody or control; he also was personally
armed with the firearm because he was carrying it loaded in the pocket of the seatback
directly in front of him—and, thus, had “ready access” (Bland, supra, 10 Cal.4th at
p. 997) to—that firearm. The record of conviction shows that when the officer
searched defendant, defendant had in his pocket a “Speedy Loader” containing six rounds
of .45-caliber ammunition. Defendant also had four other rounds of the same
ammunition in his pocket. Also, the loaded .45-caliber revolver was found directly in
front of defendant’s rear passenger seat. The revolver contained six rounds of the same
ammunition as found in defendant’s pocket.
15 We reject defendant’s arguments that he could not be armed with a firearm during
the commission of his current possessory offenses or that possessory offenses can never
fall under the armed-with-a-firearm exclusion without another separate, tethering offense.
Our conclusion is consistent with the purposes of the Reform Act. As noted, the
Reform Act is intended to provide resentencing relief to low-risk, nonviolent inmates
serving life sentences for petty crimes, such as shoplifting and simple drug possession.
(Voter Information Guide, supra, text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105.)
Defendant’s current offenses of being a felon in possession of a firearm and being a felon
in possession of ammunition—when viewed in light of the fact that he was armed with
the firearm during the commission of those offenses—cannot be deemed a petty or minor
crime for purposes of the Reform Act. The Reform Act is also intended to limit
eligibility for resentencing to inmates who have not committed current and prior offenses,
including gun-related felonies. (Voter Information Guide, supra, Analysis by Legislative
Analyst, pp. 49-50.)
D. “Plead and Prove” Requirement
Citing the “plead and prove” language contained in sections 667, subdivision
(e)(2)(C), and 1170.12, subdivision (c)(2)(C) (discussed, post), defendant claims that
“when read in context,” the prosecution was required to have “plead and prove” that he
was armed with a firearm, and since here the prosecution did not plead or prove that he
was armed with a firearm during the commission of the current offenses, the armed-with-
a-firearm exclusion does not apply.
16 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
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) 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.)
We reject defendant’s contention 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. Defendant’s reliance on the plead-and-prove
language is unavailing. “Although section 1170.126, subdivision (e)(2), expressly cross-
references clauses (i) to (iii), inclusive of sections 667, subdivision (e)(2)(C), and
1170.12, subdivision (c)(2)(C), nothing in the language of section 1170.126, subdivision
(e)(2), or of any of the other subdivisions of section 1170.126 governing an inmate’s
17 petition for resentencing relief under the Reform Act references the plead-and-prove
language.” (White, supra, 223 Cal.App.4th at pp. 526-527.)
As the White court noted, defendant’s reference to 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 p. 527, italics in original.) The court in Kaulick
explained: “[T]here 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).” (Kaulick, supra, 215 Cal.App.4th at p. 1292.) The Kaulick
court also 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.” (Id. at p. 1293.)
We also reject defendant’s assertion that using a disqualifying factor not pled and
proved to the jury would violate his constitutional rights to due process and a jury trial
18 under Apprendi, supra, 530 U.S. 466 and its progeny. He maintains that he was entitled
to a jury trial to determine whether he was armed with a gun.
Apprendi states that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S.
466 at p. 490.) Subsequently, in Blakely v. Washington (2004) 542 U.S. 296, the high
court clarified that the “prescribed statutory maximum” for purposes of the right to a jury
trial is not necessarily the maximum penalty provided by statute for the crime; rather, it is
“the maximum sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” (Id. at p. 303, italics omitted.) And in
Alleyne v. United States (2013) __ U.S. __ [133 S.Ct. 2151, 186 L.Ed.2d 314] the same
court declared that a fact which increases the mandatory minimum sentence must
likewise be submitted to a jury, and proved beyond a reasonable doubt. (133 S.Ct. at
p. 2154, 186 L.Ed.2d at p. 321.) Thereafter, the high court in Cunningham v. California
(2007) 549 U.S. 270, explained that, “under the Sixth Amendment, any fact that exposes
a defendant to a greater potential sentence must be found by a jury, not a judge, and
established beyond a reasonable doubt, not merely by a preponderance of the evidence.”
(Id. at p. 281.) Defendant’s reliance on these cases is based upon a contention that
because the finding that defendant was armed with a firearm during the felon in
possession of a firearm offense increased the mandatory minimum term of the
19 resentencing provision from a two strikes sentence to a three strikes sentence, he was
entitled to have a jury determine whether he was armed with or used a gun.
Defendant misapplies Apprendi and its progeny to resentencing petitions under
section 1170.126. The 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.) “The retrospective part of the
[Reform] 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.” (Id. at pp. 1304-1305, citing Dillon v. United
States (2010) 560 U.S. 817, 829 (Dillon).)
The failure of the applicability of these cases here lies in the difference between a
proceeding which would increase a sentence and one which would decrease the sentence.
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; see Dillon, supra, 560 U.S. at p. 829), and therefore Apprendi
and the limitations of the Sixth Amendment do not apply to resentencing determinations.
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
20 was physically armed with the firearm or had ready access to that 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
was armed with a firearm during the commission of that possession offense.
Accordingly, we will affirm the order denying defendant’s petition for a recall of
his life sentence and for resentencing as a second strike offender under the Reform Act.11
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
KING J.
MILLER J.
11 Because we find defendant was ineligible for resentencing relief, we need not address defendant’s remaining contentions.