Filed 6/30/14 P. v. Upton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058258, E059249
v. (Super.Ct.No. FCH02080)
JAMES UPTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Patricia A. Scott, 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, Erin A. Swenson and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant James Upton is currently serving a prison sentence of 50
years to life based on two 1997 firearm related convictions, for which he was sentenced
under the three strikes law. Pursuant to Proposition 36, known as the Three Strikes
Reform Act of 2012 (hereafter Reform Act or Act), defendant petitioned the trial court
for a recall of his sentence and resentencing as a second strike offender. (Pen. Code,1
§ 1170.126, subd. (b).) The trial court denied the petition, finding defendant was
ineligible for resentencing under the Reform Act because he was armed with a firearm
and personally used a firearm during his commitment offenses. (§ 1170.126,
subd. (e)(2).) Defendant timely appealed (case No. E058258), and while that appeal was
pending he requested that the trial court reconsider its order. The trial court once again
found defendant was ineligible for recall and resentencing, and it denied the request for
reconsideration. Defendant appealed from the second denial (case No. E059249), and we
granted his motion to consolidate the appeals.
On appeal, defendant contends the trial court erred by finding he is ineligible for
resentencing under the Act because (1) the two convictions for which he is serving
consecutive 25 years to life sentences are not serious or violent felonies, (2) the People
did not plead and prove that defendant used a firearm or was armed with a firearm or
deadly weapon during the commission of his commitment offenses, and (3) the court
based its ruling on facts that were not found true beyond a reasonable doubt by a jury.
1 Unless otherwise indicated, all further undesignated statutory references are to
the Penal Code.
2
The record of defendant’s direct appeal from his conviction, of which we take
judicial notice, demonstrates that defendant was armed with a firearm during his
commitment offenses, and nothing in the plain language of the Act or in relevant case law
requires that being armed with a firearm must have been pleaded and proven at trial in
order to render a prisoner ineligible for resentencing. Furthermore, the facts used to
disqualify defendant from resentencing were not used to impose greater sentences than
the ones he was already serving, so a jury need not have found them true beyond a
reasonable doubt. Because defendant is ineligible for resentencing under the plain
language of the Act, we affirm the orders denying defendant’s petition and his request for
reconsideration.
I.
FACTS AND PROCEDURAL BACKGROUND2
In an information filed on October 30, 1996, the People alleged defendant
committed an assault on a peace officer with a semiautomatic firearm (§ 245,
subd. (d)(2), count 1), drew or exhibited a firearm in the immediate presence of a peace
officer (§ 417, subd. (c), count 2), drew or exhibited a deadly weapon to a peace officer
to resist arrest (§ 417.8, count 3), and was a felon in possession of a firearm (former
§ 12021, subd. (a)(1), count 4). With respect to count 1, the People alleged defendant
2 We granted defendant’s request for judicial notice of the record in his direct
appeal from the 1997 judgment in case No. E021749, and on our own motion we took
judicial notice of defendant’s appeal from 2002 postjudgment orders in case
No. E032020. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
3
personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d),
which if found true would cause count 1 to become a serious felony within the meaning
of section 1192.7, subdivision (c)(8). Finally, the People alleged defendant suffered two
prior Arizona convictions for armed robbery and aggravated assault, which were serious
or violent felonies within the meaning of section 667, subdivision (b).
In defendant’s direct appeal, we summarized the evidence at trial as follows:
“At about 10:48 p.m. on August 31, 1996, Chino Police Officer Norman Carter spotted
defendant pushing a motorcycle in the right-hand traffic lane of a four-lane road. Officer
Carter knew that several motorcycles had been stolen in the area by being pushed away
from garages. He thought defendant might have stolen the motorcycle. He also was
concerned that, because defendant was wearing dark clothing and the motorcycle had no
light, he might be hit by a motorist.
“Officer Carter got out of his patrol car and asked defendant what was going on.
Defendant said he was out of gas and was pushing his motorcycle home. Officer Carter
asked defendant to step up to the curb so they would not be hit by traffic. As defendant
did so, Officer Carter noticed a bulge in defendant’s right waistband or pocket and asked
defendant if he had any weapons. Defendant did not answer.
“Officer Carter told defendant to turn around and put his hands on his head so he
could search defendant. Defendant complied, but then turned to Officer Carter and
assumed a ‘fighting stance’ with his right hand in his right waistband area. Officer Carter
thought defendant was reaching for a weapon. He drew his gun, pointed it at defendant,
and told him to put his hands up. Defendant started to comply, but then took off running.
4
“Officer Carter pursued defendant. As he did so, defendant turned and reached for
his right waistband. Officer Carter drew his gun toward defendant. Defendant continued
running but then started to turn again. Officer Carter saw a handgun in defendant’s right
hand as defendant came to a street corner. Defendant pointed the gun at Officer Carter.
He fired two rounds at defendant, wounding him.
“A semiautomatic handgun was found about two feet from where defendant lay in
the street after he was shot. The gun was operable but not loaded.” (People v. Upton
(Feb. 25, 1999, E021749) [nonpub. opn.].)
On August 27, 1997, a jury acquitted defendant on count 1, but found him guilty
on counts 2 through 4. Notwithstanding its acquittal of defendant of assault on a peace
officer with a semiautomatic firearm as alleged in count 1, the jury found true the
allegation that defendant personally used a firearm during the commission of the alleged
assault. The trial court found true the allegations that defendant suffered Arizona
convictions for armed robbery and aggravated assault, and that they were serious or
violent felonies.
At defendant’s sentencing hearing, the trial court denied defendant’s request to
strike the two Arizona serious or violent felony convictions pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court designated count 4 as
the principal term, and sentenced defendant under the three strikes law to 25 years to life,
plus the middle term of four years for the true finding that defendant personally used a
firearm within the meaning of section 12022.5, subdivisions (a) and (d). The court
sentenced defendant under the three strikes law to 25 years to life on count 2, to be served
5
consecutively to count 4, and sentenced defendant to 25 years to life on count 3, to be
served concurrently to count 4. Therefore, defendant was sentenced to a total prison term
of 54 years to life.
On appeal, this court affirmed the judgment over a variety of challenges, but
modified the judgment to delete the true finding on the personal use enhancement that
was not tethered to a conviction, and stayed the sentence on count 3 pursuant to section
654 pending execution of the sentence on the remaining counts. (People v. Upton, supra,
E021749.)3
Following passage of the Act, defendant, acting in propria persona, filed a petition
in the superior court requesting that the court appoint counsel, that his sentence be
recalled, and that he be resentenced as a second strike offender. The trial court denied
defendant’s petition at an ex parte hearing conducted on January 18, 2013. The minute
order states: “The Court has read and considered [the] Petition for Recall of Sentence
pursuant to PC 1170.126. [¶] The Court finds that Petitioner does not satisfy the criteria
in PC 1170.126(e) and is not eligible. [¶] The petition for recall of sentence is denied.
Defendant was armed with a firearm . . . in the current commitment offenses. Defendant
is therefore ineligible for resentencing under 1170.126 (PC 667(e)[(2)](C)(III);
PC 1170.126(e)(2)).” Defendant timely filed a notice of appeal (case No. E058258).
3 In a subsequent appeal, we affirmed postjudgment orders amending the abstract
of judgment in conformity with this court’s first opinion, and affirmed an order denying
defendant’s renewed motion to strike his Arizona strike convictions pursuant to Romero,
supra, 13 Cal.4th 497. (People v. Upton (Mar. 1, 2003, E032030) [nonpub. opn.].)
6
While defendant’s appeal in case No. E058258 was pending, defendant, this time
through the San Bernardino County Public Defender, requested that the court place his
case on calendar for the trial court to reconsider its denial of defendant’s petition for
recall and resentencing. According to the public defender, reconsideration was warranted
because “the Armed Allegation was overturned on appeal on 2/25/1999.” (Bold type
omitted.) The court did not calendar defendant’s request, and, after another ex parte
hearing, again found defendant was ineligible based on personal use of a firearm and
denied the request for recall of sentence and resentencing. Defendant timely appealed
from this second denial (case No. E059249), and we consolidated the appeals.
II.
DISCUSSION
Defendant contends he is not disqualified from resentencing under the Act because
the People did not plead and prove he was armed and personally used a firearm in the
commission of the two convictions4 for which he is serving his three-strike sentences,
and because the sole true finding that he personally used a firearm was stricken on appeal
because it was not tethered to a valid conviction. Defendant also contends he may not be
found ineligible for resentencing based on facts that were not found true beyond a
reasonable doubt by a jury.
4 Because we stayed under section 654 the sentence on defendant’s conviction for
exhibiting a firearm to a peace officer to resist arrest (People v. Upton, supra, E021749),
we will not consider that conviction in our analysis.
7
Although we agree with defendant that he is not disqualified for resentencing
under the Act based on the jury’s true finding of personal use of a firearm, which we
struck, we conclude the evidence that defendant was armed during the commission of his
commitment offenses, which need not have been pleaded and proven, does disqualify
him. We also conclude disqualifying facts need not have been found true beyond a
reasonable doubt by a jury.5
A.
Background to the Reform Act
“On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended sections 667 and 1170.12 and added section
1170.126 (hereafter the Act). The Act changes the requirements for sentencing a third
strike offender to an indeterminate term of 25 years to life imprisonment. 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
5 We note that the question of whether a prisoner may appeal the denial of a
petition for recall and resentencing under the Act is pending before the Supreme Court.
(Teal v. Superior Court, review granted July 31, 2013, S211708.) Even if we were to
conclude such an order is not appealable, we could, in the interests of judicial economy,
treat this appeal as a petition for writ of habeas corpus or a petition for writ of mandate.
(See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal from
nonappealable order as a petition for writ of habeas corpus]; Drum v. Superior Court
(2006) 139 Cal.App.4th 845, 852-853 [Fourth Dist., Div. Two] [treating appeal as a
petition for writ of mandate due to uncertainty in the law about appealability].)
Therefore, we reach the merits of the appeal.
8
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. (§§ 667, 1170.12.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-
168.)
Besides reforming prospective three-strike sentencing, the Act added section
1170.126, which provides for retroactive reform of existing, pre-Proposition 36, three-
strike sentences. That section “provides a means whereby, under three specified
eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner
currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the
Three Strikes law for a third felony conviction that was not a serious or violent felony
may be eligible for resentencing as if he or she only had one prior serious or violent
felony conviction. [Citations.]” (People v. White (2014) 223 Cal.App.4th 512, 517
(White).)
An eligible prisoner may petition the superior court for recall of his sentence and
for resentencing as a second strike offender. (§ 1170.126, subd. (b).) A prisoner is
eligible for recall of sentence and resentencing if: (1) he is currently serving an
indeterminate life sentence under the pre-Reform Act three strikes law, which was
imposed for a commitment offense or offenses that are not serious and/or violent felonies
within the meaning of section 667.5, subdivision (c) or section 1192.7, subdivision (c);
(2) the prisoner’s current sentence was not imposed for any offense set forth in section
667, subdivision (e)(2)(C)(i)-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii); and
(3) the prisoner has no prior convictions for any offense set forth in section 667,
9
subdivision (e)(2)(C)(iv) or section 1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126,
subd. (e).) Even if the inmate is otherwise eligible for resentencing, the court may, in its
discretion, deny the petition if it concludes resentencing “would pose an unreasonable
risk of danger to public safety.” (§ 1170.126, subd. (f).)
The trial court denied defendant’s petition and request for reconsideration because
it concluded he was armed with a firearm during the commission of his commitment
offenses, so the sole eligibility criteria at issue here is the one found in section 1170.126,
subdivision (e)(2).6 “That criterion is satisfied if the prisoner’s life sentence was not
imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of sections
667(e)(2)(C) and 1170.12(c)(2)(C). (§ 1170.126(e)(2).) Stated differently, the second
resentencing eligibility criterion set forth in 1170.126(e)(2) is not satisfied—and the
petitioning prisoner is ineligible for resentencing relief under the Reform Act—if the
prisoner’s life sentence was imposed for any of the disqualifying offenses . . . appearing
in sections 667(e)(2)(C)(i)-(iii) and 1170.12(c)(2)(C)(i)-(iii).” (White, supra, 223
Cal.App.4th at p. 523, fn. omitted.)
More specifically, because defendant was not convicted of a controlled substance
offense or a sex offense as defined, respectively, in section 667, subdivision (e)(2)(C)(i)
and (ii), and section 1170.12, subdivision (c)(2)(C)(i) and (ii), “[t]he sole disqualifying
exclusion at issue in this appeal [is] the armed-with-a-firearm exclusion . . . set forth in
6 There is no question that defendant meets the eligibility requirements under
section 1170.126, subdivision (e)(1) and (3), and the People do not contend otherwise.
10
section 667(e)(2)(C)(iii), and also in section 1170.12(c)(2)(C)(iii), which in pertinent
part is substantially identical to section 667(e)(2)(C)(iii). 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(e)(2)(C)(iii) & 1170.12(c)(2)(C)(iii) [both cross-referenced in
§ 1170.126(e)(2)].)” (White, supra, 223 Cal.App.4th at p. 523, fns. omitted.)
B.
A Prisoner May Be Disqualified from Resentencing Under the Reform Act Based on
Facts That Are Not Tethered to a Conviction Or a Firearm Enhancement
Defendant argues he is not ineligible for resentencing under section 1170.126,
subdivision (e)(2), because he was not found to have been “armed with a firearm” during
the commission of his commitment offenses. According to defendant, sections 667,
subdivision (e)(2)(C)(iii), and 1170.12, subdivision (c)(2)(C)(iii)—which are referenced
in section 1170.126, subdivision (e)(2)—“mirror and encompass the firearm sentencing
enhancement” in section 12022 and, therefore, require (1) a true finding that defendant
was armed with a firearm during the commission of a felony, and (2) a “tethering or
underlying felony, not mere possession of a firearm.” Because the sole true finding that
defendant was armed with a firearm was not tethered to a conviction on count 1, and this
court struck that true finding in defendant’s first appeal, defendant contends he is eligible
for resentencing under the Reform Act. Our colleagues in Division One of the Fourth
District and in the Fifth District recently rejected similar arguments.
11
In White, the prisoner was serving a three-strike sentence following his conviction
for being a felon in possession of a firearm. (White, supra, 223 Cal.App.4th at p. 518.)
The trial court denied the prisoner’s petition for resentencing under the Act because he
was armed with a firearm during the commission of his commitment offense. (Ibid.)
Division One of the Fourth District noted that the accusatory pleading did not allege the
prisoner was “armed” when he committed the offense of being a felon in possession of a
firearm, and the People did not plead a sentence enhancement based on the prisoner being
armed with a firearm. (Id. at pp. 524-525.) However, the court concluded the record of
the prisoner’s underlying conviction established that he was, in fact, armed with a
firearm, and that the People’s theory of the case was not that defendant merely possessed
a firearm, “but also that he was armed with the firearm during [the] commission of the
current offense.” (Id. at pp. 525-526.) Finally, the court concluded that finding the
prisoner ineligible for resentencing based on evidence in the record that he was armed,
but not based on such a finding by the trier of fact, “is consistent with the purposes of the
Reform Act. [T]he 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. [Citation.] [The prisoner’s] current offense of being a felon in
possession of a firearm—when viewed in light of the fact that he was armed with the
firearm during the commission of that offense—cannot be deemed a petty or minor crime
for purposes of the Reform Act.” (Id. at p. 526.)
12
More recently, the Fifth District reached a similar conclusion in People v. Osuna
(2014) 225 Cal.App.4th 1020, petition for review pending, petition filed May 28, 2014,
S218183 (Osuna). As in White, the prisoner in Osuna was serving a three-strike sentence
after having been convicted of being a felon in possession of a firearm, but the People did
not allege he was armed with a firearm at the time or allege a sentence enhancement
based on being armed with a firearm. (Osuna, at p. 1027.) The trial court denied the
prisoner’s petition for resentencing, concluding he was ineligible because he was armed
with a firearm during the commission of his offense. (Id. at p. 1028.) The appellate court
concluded the record contained evidence that the prisoner “had a firearm available for
offensive or defensive use” during the commission of his offense because he “was
actually holding a handgun.” (Id. at p. 1030.) “Thus, factually he was ‘armed with a
firearm’ within the meaning of the Act.” (Ibid.)
The prisoner argued he was not ineligible for resentencing under section 1170.126,
subdivision (e)(2), because a finding of being armed with a firearm had to be tethered to
an underlying conviction or there had to be a “‘facilitative nexus’” between the arming
and the possession. (Osuna, supra, 225 Cal.App.4th at p. 1030.) The appellate court
agreed tethering and a “‘facilitative nexus’” are required when imposing an “‘armed with
a firearm’” sentence enhancement under section 12022. (Osuna, at pp. 1030-1031.)
“However, 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 ‘[d]uring the commission of’ the current offense (italics added). ‘During’ is
13
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.) “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 literal
language of the Act disqualifies an inmate from resentencing if he or she was armed with
a firearm during the unlawful possession of that firearm.” (Ibid.)
Applying White and Osuna to this case, we conclude defendant was armed with a
firearm during the commission of his commitment offenses. The two convictions for
which defendant is serving three-strike sentences are for possession of a firearm by a
felon (former § 12021, subd. (a)(1)), and for exhibiting a firearm in the presence of a
peace officer (§ 417, subd. (c)). Neither conviction requires a specific finding that the
defendant was “armed with a firearm” during the commission of the offense, but both
offenses may be committed by an armed defendant.
“A defendant is armed if the defendant has the specified weapon available for use,
either offensively or defensively. [Citations.] . . . ‘[A] firearm that is available for use
as a weapon creates the very real danger it will be used.’ [Citation.] Therefore, ‘[i]t is
the availability—the ready access—of the weapon that constitutes arming.’ [Citation.]”
(People v. Bland (1995) 10 Cal.4th 991, 997, italics omitted.) The defendant is
considered armed even if the weapon is inoperable (People v. Nelums (1982) 31 Cal.3d
14
355, 359-360) or, as here, it is unloaded (People v. Masbruch (1996) 13 Cal.4th 101,
1006-1007).
“‘The statutory elements of a violation of [former] section 12021[(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.’ [Citation.] [¶] 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 [former] 12021(a) because a conviction of this offense
also may be based on a defendant’s constructive possession of a firearm. [Citations.]
‘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.’
[Citation.] [¶] Thus, while the act of being armed with a firearm—that is, having ready
access to a firearm [citation]—necessarily requires possession of the firearm, possession
of a firearm does not necessarily require that the possessor be armed with it. For
example, a convicted felon may be found to be a felon in possession of a firearm if he or
she knowingly kept a firearm in a locked offsite storage unit even though he or she had
no ready access to the firearm and, thus, was not armed with it.” (White, supra, 223
Cal.App.4th at p. 524, italics omitted.)
Although section 417, subdivision (c), does not require the fact finder to conclude
the defendant was “armed” with a firearm (see CALCRIM No. 981), it would appear it is
almost impossible to find that a defendant “drew or exhibited” a firearm in a rude, angry,
or threatening manner in the presence of a peace officer, without also implicitly finding
15
the defendant was armed because he had a firearm available for offensive or defensive
use. To “draw” means, among other things, “to remove (a weapon) from a sheath,” and
“the removing of a revolver or automatic pistol from its holster.” (Webster’s 3d New
Internat. Dict. (1981) p. 686, cols. 2, 3.) To “exhibit” means “to present to view: SHOW,
DISPLAY.” (Id. at p. 796, col. 1.) If in a rude, angry, or threatening manner the
defendant pulls out his firearm from a holster, waistband, or coat pocket, in the presence
of a peace officer, he has drawn a firearm that was available for offensive or defensive
use and, therefore, he was armed. Likewise, if the defendant pulls up his shirt to expose
to view a firearm tucked in his waistband or back pocket, or unzips his jacket to expose a
holstered firearm, he has exhibited a firearm that was available for use and was,
therefore, armed.
In any event, the evidence in this case amply demonstrate that, even if the jury was
not required to conclude that defendant was armed with a firearm, he was actually armed.
After stopping to speak with defendant, the officer noticed a bulge in defendant’s right
waistband or pocket and asked if defendant had any weapons. Defendant did not answer
the officer. The officer then told defendant to turn around and put his hands behind his
back. Defendant complied, but then turned around, assumed a “fighting stance,” and
placed his right hand in the area of his waistband. Thinking defendant was reaching for a
weapon, the officer drew his firearm and told defendant to put his hands up. Defendant
started to comply, but then fled on foot. As the officer gave chase, “defendant turned and
reached for his right waistband.” The officer pointed his weapon at defendant, and
defendant kept running away. Defendant then started to turn around again, and the
16
officer “saw a handgun in defendant’s right hand as [he] came to a street corner.” When
defendant pointed the gun at the officer, the officer fired twice at defendant and wounded
him. The police officer found an operable but unloaded semiautomatic handgun about
two feet from where defendant lay in the street wounded. (People v. Upton, supra,
E021749.)
Based on these facts, there is no doubt that defendant was armed with a firearm
during the commission of his commitment offenses because he had a firearm at his
disposal for offensive or defensive use. Therefore, under the plain language of section
1170.126, subdivision (e)(2), defendant is ineligible for resentencing as a second strike
offender.
C.
The People Need Not Have Pleaded and Proven Beyond a Reasonable Doubt
That Defendant Was Armed with a Firearm to Render Him Ineligible for
Resentencing Under the Reform Act
Defendant also contends that, because the People did not plead and prove he was
“armed with a firearm” when he was a felon in possession of a firearm in violation of
former section 12021, subdivision (a)(1), or that he was “armed with a firearm” when he
drew or exhibited a firearm in the presence of a peace officer in violation of section 417,
subdivision (c), the trial court could not find he was armed for purposes of
disqualification under section 1170.126, subdivision (e)(2). In his reply brief, defendant
contends the use of facts from the record to find he was armed with a firearm and,
therefore, is ineligible for resentencing under the Act, would violate his Sixth
17
Amendment right to have a jury determine beyond a reasonable doubt all facts that
mandate his three-strike sentence. The courts in White and Osuna also addressed these
arguments and rejected them.
The defendant in White relied on the “plead and prove” requirements found in
sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C), for the position
that “‘any offense or conduct that disqualifies a petitioner from relief under the Reform
Act must be “pled and proven” by the prosecution.’” (White, supra, 223 Cal.App.4th at
p. 526.) The appellate court rejected that assertion for two reasons. First, although
section 1170.126, subdivision (e)(2), cross-references sections 667, subdivision
(e)(2)(C)(i)-(iii), and 1170.12, subdivision (c)(2)(C)(i)-(iii), nothing in section 1170.126
references or incorporates the “plead and prove” language. (White, at pp. 526-527.)
Second, the “plead and prove” language from sections 667, subdivision (e)(2)(C), and
1170.12, subdivision (c)(2)(C), applies solely to the prospective portion of the Reform
Act, which governs new, post-Proposition 36 sentencing under the three strikes law of
defendants convicted of current serious or violent felonies, and it does not apply to the
retrospective portion of the Reform Act, which governs recall of pre-Proposition 36
sentences. (White, at p. 527.) Therefore, as long as the record contained evidence that
the inmate was armed with a firearm during the commission of his commitment offense,
the court concluded he was disqualified from resentencing under the Act, notwithstanding
the People’s failure to plead and prove he was armed. (White, at p. 527.)
18
The Osuna court rejected the same “plead and prove” argument. “[W]hen an
initial sentencing for a current offense is at issue [under the Reform Act], there is a clear
statutory pleading and proof requirement with respect to factors that disqualify a
defendant with two or more prior strike convictions from sentencing as a second strike
offender. [Citations.] [¶] Fairly read, however, section 1170.126 does not impose the
same requirements in connection with the procedure for determining whether an inmate
already sentenced as a third strike offender is eligible for resentencing as a second strike
offender. [Citation.] Subdivision (e) of the statute provides: ‘An inmate is eligible for
resentencing if: [¶] . . . [¶] (2) The 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.’ This language
refers specifically to the disqualifying factors, and does not incorporate the pleading and
proof requirements contained in other portions of sections 667, subdivision (e)(2)(C) and
1170.12, subdivision (c)(2)(C). Contrary to defendant’s assertion, such a construction
neither creates an ambiguity where none existed nor reads the pleading and proof
requirement out of the statute.” (Osuna, supra, 225 Cal.App.4th at p. 1033; accord,
People v. Blakely (2014) 225 Cal.App.4th 1042, 1058, petn. for review pending,
petn. filed May 30, 2014, S218914.)
Finally, the court in Osuna concluded that “disqualifying factors need not be
proven to a jury beyond a reasonable doubt where eligibility for resentencing under
section 1170.126 is concerned.” (Osuna, supra, 225 Cal.App.4th at p. 1038, fn. omitted.)
19
First, under the plain language of section 1170.126, subdivision (f), the trial court, not a
jury, must determine a prisoner’s eligibility for resentencing. (Ibid.) Second, relying on
the reasoning from People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, the
Osuna court concluded “Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny
do not apply to a determination of eligibility for resentencing under the Act.” (Osuna, at
p. 1039.) “A finding [that] 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. The trial court’s determination here
that defendant was armed with a firearm during the commission of his current offense did
not increase the penalty to which defendant was already subject, but instead disqualified
defendant from an act of lenity on the part of the electorate to which defendant was not
constitutionally entitled.” (Id. at p. 1040.)
We agree with White and Osuna, and adopt their reasoning as our own. Nothing
in the plain language of section 1170.126, subdivision (e)(2), requires that the ample
disqualifying facts demonstrating defendant was armed with a firearm during the
commission of his commitment offenses had to have been pleaded and proven at his trial.
Moreover, because those disqualifying facts were not used to impose increased or
aggravated punishment for his underlying crime, and denial of his petition will merely
result in him serving the remainder of the properly imposed three-strike sentence he was
already serving, the trial court could properly consider those facts under section 1170.126
notwithstanding that a jury did not find those facts true beyond a reasonable doubt.
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III.
DISPOSITION
The postjudgment orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
21