Filed 3/17/16 P. v. Young CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B265301
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA076400)
v.
DESHON YOUNG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. William C.
Ryan, Judge. Affirmed.
Richard B. Lennon, under appointment of the California Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Defendant and appellant Deshon Young appeals from the trial court’s denial of his
petition to recall his sentence for possession of a firearm under Penal Code sections
1170.126, subdivision (e)(2), 667, subdivision (e)(2)(C)(iii), and 1170.12, subdivision
(c)(2)(C)(iii).1 Young contends the voters did not intend, and the statute is not actually
written, to impose ineligibility for possession of a firearm. A body of case law, however,
refutes his claim. We affirm.
BACKGROUND
On August 15, 2004, armed gang members confronted and nonfatally shot Robin
Newton and Willie Davis outside an apartment building in Compton. (People v. Deshon
Young (July 27, 2006, B183869, at p. 2) [nonpub. opn.].) Law enforcement subsequently
executed a search warrant in connection with these shootings on an apartment where
Young was staying. (Ibid.) Young was in his bedroom when SWAT stormed the
apartment. After law enforcement arrested Young, they searched his room and found a
gun on his bed, under the covers. A jury convicted Young of possessing a firearm as a
felon in violation of section 12021, subdivision (a)(1). Young filed a petition in propria
persona for recall of his sentence in 2012, but the court denied the petition without
prejudice for lack of service on the district attorney. On September 19, 2013, Young
refiled his petition for recall with the assistance of counsel. After a hearing, the court
denied Young’s petition with prejudice under section 1170.126, subdivision (e)(2),
finding he was ineligible for resentencing because he was “armed” under sections 667,
subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). Young appealed.
DISCUSSION
On appeal, Young argues that the voters did not intend, and section 1170.126 is
not actually written, to deny resentencing eligibility under the “armed” exception where,
as here, arming is an element of the offense. Young claims “arming” must occur during a
separate offense.
1 Undesignated statutory references are to the Penal Code.
2
A body of case law refutes these arguments. (See People v. Brimmer (2014) 230
Cal.App.4th 782, 805–806; People v. Elder (2014) 227 Cal.App.4th 1308, 1312; see also
People v. White (2016) 243 Cal.App.4th 1354, 1361–1362; People v. Hicks (2014) 231
Cal.App.4th 275, 283–284; People v. Osuna (2014) 225 Cal.App.4th 1020, 1035; People
v. White (2014) 223 Cal.App.4th 512, 519.) “[U]nlike section 12022, which requires that
a defendant be armed ‘in the commission of’ a felony for additional punishment to be
imposed (italics added), the [section here] disqualifies an inmate from eligibility for
lesser punishment if he or she was armed with a firearm ‘during the commission of’ the
current offense (italics added). ‘During’ is variously defined as ‘throughout the
continuance or course of’ or ‘at some point in the course of.’ (Webster’s 3d New
Internat. Dict. (1986) p. 703.) In other words, it requires a temporal nexus between the
arming and the underlying felony, not a facilitative one.” (Osuna, at p. 1032.) Without a
facilitative nexus requirement, the court did not need to find an additional separate
offense to which the “arming” was tethered; it was enough, considering the temporal
element only, that the arming occurred during the possession.
A “person convicted of being a felon in possession of a firearm is not
automatically disqualified from resentencing by virtue of that conviction[, however];
such a person is disqualified only if he or she had the firearm available for offensive or
defensive use.” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1048 (Blakely); accord,
People v. Estrada (2015) 243 Cal.App.4th 336, 342; People v. Burnes (2015) 242
Cal.App.4th 1452, 1458.) The prosecution need not “‘inexorably establish,’” however,
that the defendant actually physically possessed the weapon by submitting eyewitness
testimony placing the weapon in the defendant’s hands to prove availability. (People v.
White, supra, 243 Cal.App.4th at p. 1361.) Instead, the defendant’s knowledge of a
weapon and “‘“ready access”’” to it suffice. (Id. at pp. 1361–1362, quoting People v.
Bland (1995) 10 Cal.4th 991, 997.) Here, the prosecution submitted testimony placing
Young in his room when the gun was on his bed. Young therefore had ready access to
the gun, and the jury’s finding he possessed it implies he knew of the gun’s presence.
(People v. White, supra, 243 Cal.App.4th at p. 1361 [holding that a jury’s determination
3
defendant “possessed” a gun “necessarily implie[d]” his knowledge of it].) This was
sufficient evidence for the jury to conclude Young was “armed.”
As to the voters’ intent, “It is clear the electorate’s intent was not to throw open
the prison doors for all third strike offenders whose current convictions were not for
serious or violent felonies, but only for those who were perceived as nondangerous or
posing little or no risk to the public. A felon who has been convicted of two or more
serious and/or violent felonies in the past, and most recently had a firearm readily
available for use, simply does not pose little or no risk to the public. ‘[T]he threat
presented by a firearm increases in direct proportion to its accessibility. Obviously, a
firearm that is available for use as a weapon creates the very real danger it will be used.’
(People v. Mendival (1992) 2 Cal.App.4th 562, 573.)” (Blakely, supra, 225 Cal.App.4th
at p. 1057.)
The “arming” exception can and does apply to section 12021 possession offenses,
and the trial court properly applied it here.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LUI, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
4