NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
In 1997, appellant Oscar Louis Shibata was convicted of possession of a firearm by a felon and sentenced to a term of 25 years to life as a "three strike" offender. In the underlying action, the trial court denied appellant's motion under Penal Code section 1170.126 to be resentenced pursuant to the Three Strikes Reform Act of 2012 (Reform Act).
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A. 1997 Conviction
In 1997, appellant was charged with being a felon in possession of a firearm (former § 12021, subd. (a)(1)).
At trial, the prosecution presented evidence that on December 11, 1996, Los Angeles County Sheriff's Department deputy sheriffs entered appellant's residence in order to execute a search warrant. Appellant was seated on a couch in the living room. After the deputy sheriffs found a loaded handgun under a cushion on the couch, appellant stated that the gun belonged to him.
On July 11,1997, a jury found appellant guilty of being a felon in possession of a firearm. After finding true the allegations that appellant had suffered convictions for first degree burglary and involuntary manslaughter in 1993, the trial court sentenced him to a term of 25 years to life under the Three Strikes law. In an unpublished opinion, this court affirmed the judgment. (People v. Shibata (July 28, 1998, B116302).)
B. Petition for Recall of Sentence
In November 2012, the electorate enacted the Reform Act by approving Proposition 36. (People v. Yearwood (2013) 213 Cal.App.4th 161, 169-171.) The Reform Act amended the Three Strikes law to provide that absent specified exceptions, an offender with two or more prior strikes is to be sentenced as a two strike offender unless the new offense also is a strike, that is, a serious or violent felony.
In February 2013, appellant filed a petition for resentencing pursuant to section 1170.126. On August 23, 2016, the trial court denied the petition with prejudice, concluding that appellant was ineligible for resentencing because he was armed with a firearm during the commission of the offense of being a felon in possession of a firearm (§§ 1170.12, subd. (c)(2)(C), 1170.126, subd. (e)(2)). This appeal followed.
Appellant contends the trial court erred in finding him ineligible for resentencing under an exclusion that applies if "[d]uring commission of the current offense, [that is, the offense which the resentencing petition targets] the defendant . . . was armed with a firearm or deadly weapon. . . ." (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2); see People v. Bradford (2014) 227 Cal.App.4th 1322, 1327 (Bradford).) Appellant argues that the exclusion should not be construed "so as to render ineligible for a sentence recall anyone who committed [the] crime [of being a felon in possession of a firearm] . . . simply because it includes access to a weapon, without requiring that such access be for the purpose of furthering another criminal act." As explained below, we reject his contention.
The key issue before us concerns the circumstances under which the offense of being a felon in possession of a firearm is subject to the eligibility exclusion relating to "`armed'" offenders. Generally, courts interpreting the term "`armed'" in the exclusion have sought guidance from People v. Bland (1995) 10 Cal.4th 991 (Bland), which examined a sentencing enhancement set forth in section 12022, subdivision (a), applicable to defendants "`armed with a firearm in the commission or attempted commission of a felony.'" (Bland, supra, at p. 998.) Our Supreme Court concluded that under the enhancement, the term "armed" means that the defendant had the firearm "available for offensive or defensive use." So understood, the term "armed" encompasses unloaded and inoperable firearms, as such weapons that "create a risk of harm because [their] passive display `may stimulate resistance.'" (Id. at pp. 1004-1005, quoting People v. Nelums (1982) 31 Cal.3d 355, 360.) The court further concluded that the enhancement also demands the satisfaction of certain requirements beyond the mere existence of arming, stating: "[B]y specifying that the added penalty applies only if the defendant is armed with a firearm `in the commission of' the felony offense, [the enhancement] . . . implicitly requires that the `arming' take place during the underlying crime and that it have some `facilitative nexus' to that offense." (Bland, supra, 10 Cal.4th at p. 1002.)
In construing the eligibility exclusion relating to "armed" offenders, our focus is on the crime of being a felon in possession of a firearm. "The elements of this offense are conviction of a felony and ownership or knowing possession, custody, or control of a firearm. [Citations]. `A defendant possesses a weapon when it is under his dominion and control. [Citation.] A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others. [Citations.]' [Citation.] `Implicitly, the crime is committed the instant the felon in any way has a firearm within his control.' [Citation.]" (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029-1030 (Osuna).) As explained in Osuna, because one may possess a gun without it being available for one's use, a defendant may commit the offense of being a felon in possession of a firearm without having satisfied the definition of "armed" set forth in Bland. (Id. at p. 1030.)
Numerous courts have determined that under the Reform Act, the offense of being a felon in possession of a firearm falls under the pertinent eligibility exclusion when the possession in question amounted to arming, as specified in Bland. (E.g., People v. White (2014) 223 Cal.App.4th 512, 524-525; Cervantes, supra, 225 Cal.App.4th at pp. 1012-1018; Osuna, supra, 225 Cal.App.4th at pp. 1028-1038; People v. Blakely (2014) 225 Cal.App.4th 1042, 1051-1057; People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314 & fn. 7 (Elder); People v. Brimmer (2014) 230 Cal.App.4th 782, 793-799; People v. Hicks (2014) 231 Cal.App.4th 275, 283-284 (Hicks).) Instructive discussions of the exclusion are found in Osuna, Elder, and Hicks.
In Osuna, the defendant drove his car at an excessive speed and refused to yield to a police officer who tried to pull him over. (Osuna, supra, 225 Cal.App.4th at p. 1027.) The defendant eventually stopped, left his car while holding a gun, and fled into a house. (Ibid.) After arresting the defendant, officers found an unloaded nine-millimeter gun hidden in the house and nine-millimeter ammunition in the car. (Ibid.) The defendant was convicted of being a felon in possession of a firearm and obstructing a police officer, and was sentenced as a three strike offender. (Id. at pp. 1026-127.)
When the defendant sought resentencing, the trial court determined that he was ineligible for relief because he was armed with a firearm during the commission of his "current offense," that is, being a felon in possession of a firearm. (Osuna, supra, 225 Cal.App.4th at p. 1028.) In affirming that ruling, the appellate court concluded that the offense did not, by itself, render the defendant ineligible absent a showing that he was armed, as defined in Bland, viz., that the firearm was available to him for offensive or defensive use. (Id. at p. 1030.) The court recognized that "[h]aving a gun available does not further or aid in the commission of the crime of possession of a firearm by a felon," but concluded that the exclusion mandates no showing that the arming promoted the "current offense." (Id. at p. 1032.) The court determined that the exclusion demands only a temporal nexus — but no facilitative nexus — between the arming and the offense of being a felon in possession of a firearm, as the exclusion merely requires that the arming occur "during" the commission of the offense, unlike the enhancement construed in Bland, which requires that the arming occur "in" the commission of the offense. (Id. at pp. 1032-1033.)
In Elder, police officers executing a search warrant for an apartment found the defendant standing outside the apartment. (Elder, supra, 227 Cal.App.4th at p. 1317.) The defendant admitted that he lived there. (Ibid.) Inside the apartment, the officers discovered two guns and a photo of the defendant holding one of them. (Ibid.) After being convicted of being a felon in possession of a firearm, he was sentenced as a three strike offender. (Id. at p. 1311.) Following the denial of his petition for resentencing, he contended on appeal that under the exclusion, "ineligibility for resentencing for being `armed' . . . require[s] something beyond the substantive offense of possession itself," relying on decisions interpreting the enhancement discussed in Bland. (Id. at p. 1312.) In affirming the denial of the petition, the appellate court rejected that contention, stating: "The illogic of this line of reasoning rests on its conflating the criterial definition of an ineligible offense (being armed during the commission of such offense) with the derivative nature of the armed enhancement (which requires being armed in the commission of an offense)." (Id. at pp. 1312-1313.)
In Hicks, police officers frisked the defendant after he appeared to throw away a bag containing drugs, and found he had several .380 caliber bullets. (Hicks, supra, 231 Cal.App.4th at pp. 280-281.) When the officers searched a nearby apartment, they found a backpack containing a loaded .380 caliber gun. (Ibid.) A witness told the officers that the defendant had carried the backpack into the apartment. (Ibid.) The defendant was convicted of possession of a firearm as a felon and sentenced as a three strike offender on the basis of that offense. (Ibid.) Later, the trial court rejected the defendant's petition for resentencing, concluding that he was armed with a firearm when he committed the offense of possessing a firearm as a felon. (Id. at pp. 279-280, 284.) The appellate court affirmed that ruling, applying an interpretation of the exclusion identical to that set forth in Osuna. (Id. at pp. 283-284.) In construing the exclusion, the court rejected the defendant's contention that it required the existence of an "underlying felony to which the arming is `tethered.'" (Id at p. 283.) The court explained that although the contention would be correct if directed at the arming enhancement discussed in Bland, it failed in light of the plain language of the exclusion, which concerns eligibility for reduced punishment. (Ibid.) As the court noted, the exclusion requires no facilitative nexus between the arming and any offense. (Ibid.)
Here, the record establishes that appellant was armed with a firearm — that is, had a gun available to him for offensive or defensive use — during his possession of the firearm as a felon.
Appellant contends the pertinent exclusion, viewed in the context of the Reform Act, must be interpreted to require a facilitative nexus between arming and an offense independent of the crime of being a felon in possession of a firearm. Under the Reform Act, subdivision (e)(2) of section 1170.126 provides that a defendant is not eligible for resentencing if his or her current sentence was imposed for an offense appearing in three provisions stated in materially identical terms in both sections 667 and 1170.12 (§§ 667, subd. (e)(2)(C)(i)-(iii), 1170.12, subd. (c)(2)(C)(i)-(iii)). Of those three provisions, two enumerate particular offenses rendering a defendant ineligible for resentencing. (§§ 667, subd. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) The remaining provision, which incorporates the exclusion at issue here, states that the defendant is ineligible if: "During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
Appellant maintains that the structure of the three provisions establishes that the pertinent exclusion applies only when the arming is related to, or promotes, an offense other than being a felon in possession of a firearm. He argues: "Where the statute is meant to exclude specific offenses entirely, it so states, but where it is meant to exclude an offense only if something beyond its mere commission occurs, it states `during the commission of' the offense something else happens." He further asserts that the factors identified in the third provision "must attach to the current offense as an addition and not just be an element of the current offense," and that the phrase "`[d]uring the commission of the current offense'" makes sense only if "there is another offense to which the arming attaches." We disagree.
Although the third provision specifies circumstances rendering the current offense ineligible for resentencing, nothing in it suggests that those circumstances must attach to a crime other than the current offense. As noted in Bradford, the provision, on its face, refers to "facts attendant to commission of the actual offense," that is, the offense for which the defendant seeks resentencing. (Bradford, supra, 227 Cal.App.4th at p. 1332.) The provision thus encompasses the offense of being a felon in possession of a firearm when the manner in which that crime was committed involved arming.
Appellant also contends the word "during" in the eligibility exclusion must be construed as having the same meaning as the word "in," as used in the enhancement construed in Bland. To support that contention, appellant notes that courts have sometimes interpreted the word "in" to express a purely temporal relationship. He directs our attention to People v. Poroj (2010) 190 Cal.App.4th 165, 176 and People v. Valdez (2010) 189 Cal.App.4th 82, 90, which examined an enhancement in section 12022.7, subdivision (a), applicable to defendants who personally inflict great bodily injury "in the commission of a felony or attempted felony." In each case, appellant argues, the court interpreted the word "in" to convey a temporal relationship between the criminal conduct and the injury. (Poroj, supra, at pp. 172-176; Valdez, supra, at p. 90.)
Appellant's contention fails, as nothing within the eligibility exclusion suggests that the word "during" there has the complex meaning attributed to the word "in" in Bland, which viewed "in" as conveying both a temporal and a facilitative relationship. The word "during" ordinarily has a purely temporal meaning. (Merriam-Webster's Collegiate Dict. (1995) p. 360 [defining "during" to mean "throughout the duration of"].) The fact that the word "in" sometimes has a purely temporal meaning does not show that the word "during," as found in the eligibility exclusion, expresses a facilitative relationship in addition to a temporal one.
Appellant also contends that so construing the eligibility exclusion would frustrate the goals of Proposition 36. He asserts that in approving Proposition 36, the electorate did not intend to deny relief to offenders convicted of possessing a firearm as a felon, which he characterizes as a "low-level felony." He argues: "Proposition 36 was meant to give lesser sentences to the less dangerous felons while making sure that the truly dangerous felons were kept behind bars. . . . [¶] Having a weapon readily available for use generally does not render a person truly dangerous; it is a right protected by the federal constitution. It only becomes dangerous when it might facilitate a crime, when it might be used for violence."
Appellant's contention fails in light of the election materials relating to Proposition 36, which state that it was not intended to afford relief to offenders who committed "`gun-related felonies'" or whose third strike "`involved firearm possession.'" (Cervantes, supra, 225 Cal.App.4th at p. 1016, italics omitted.) As explained in Elder, although "possession of a gun of itself is not criminal, a felon's possession of a gun is not a crime that is merely malum prohibitum. . . . `[P]ublic policy generally abhors even momentary possession of guns by convicted felons who, the Legislature has found, are more likely to misuse them.' [Citation.] Therefore, even if the great majority of commitments for unlawful gun possession come within our interpretation of this eligibility criterion, it would not run afoul of the voters' intent." (Elder, supra, 227 Cal.App.4th at p. 1314, quoting People v. Pepper (1996) 41 Cal.App.4th 1029, 1037-1038.) In sum, the trial court did not err in denying appellant's petition for recall of his sentence and resentencing.
The order of the trial court is affirmed.
EPSTEIN, P. J. and WILLHITE, J., concurs.
For the reasons discussed above, we reject that argument. Because Proposition 36 reflects an intent to deny relief for offenders convicted of "gun-related felonies," the exclusion is reasonably construed as a "catch all" provision that characterizes "gun-related felonies" in temporal terms, that is, by means of the word "during."