Elder

DISCUSSION

I. For Purposes of Section 1170.126, Unlawful Possession of a Firearm

Can Constitute Being Armed During an Offense

As cross-referenced in section 1170.126, subdivision (e)(2), a commitment offense is ineligible for recall of sentence if “[d]uring [its] commission . . . , 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), italics added.) The parties have not suggested that we should interpret “armed” any differently in this context than its

4 Defendant filed a motion to take judicial notice of the record in his prior appeal; we granted the motion, though we construe it as one to incorporate the record by reference in the present proceedings.

3 interpretation for purposes of the firearm enhancement in section 12022:5 A defendant is armed if the gun has a facilitative nexus with the underlying offense (i.e., it serves some purpose in connection with it); however, this requires only that the defendant is aware during the commission of the offense of the nearby presence of a gun available for use offensively or defensively, the presence of which is not a…

“Naturally I concur in the majority opinion I have prepared for the court” (People v. Jones (1998) 17 Cal.4th 279, 319 [ 70 Cal.Rptr.2d 793 , 949 P.2d 890 ] (cone. opn. of Mosk, J.)); “[obviously, I concur fully in the majority opinion I have authored” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 378 [ 58 Cal.Rptr.2d 458 , 926 P.2d 438 ] (conc. opn. of Chin, J.)).

I write separately to explain my disagreement with the chosen disposition that my colleagues favor. Upon determining on the merits that a defendant is not eligible for relief under Penal Code section 1170.126, 1 the proper disposition should be to dismiss the matter because denial of the petition accordingly did not affect any substantial right of the defendant.

Defendant’s Appeal Must be Dismissed

Section 1237 authorizes an appeal from any order made after judgment “affecting the substantial rights of the party.” (§ 1237, subd. (b).) Therefore, an untimely motion to recall a sentence under the general provision (§ 1170, subd. (d)(1)) is not appealable because a trial court has no jurisdiction to entertain such a motion in the first place, and its denial of the motion accordingly could not affect a substantial…

*1311 Opinion

In December 2012, defendant Kenneth Elder filed what he titled a petition for a writ of habeas corpus (though invoking Pen. Code, § 1170.126) 1 seeking to recall his 1995 indeterminate life sentence. The statute, enacted pursuant to a November 2012 initiative measure, provides retrospective relief under narrow criteria from indeterminate life sentences imposed for recidivism. Defendant alleged that his commitment offense— unlawful possession (as a convicted felon) of a gun—was not a “serious” or violent felony and did not otherwise come within any exception to section 1170.126, and therefore he was entitled to be considered for resentencing to a determinate sentence of double the term that would otherwise apply to his offense (which is what a court would impose under the prospective amendments to the recidivist sentencing statutes enacted as part of the same initiative). (§ 1170.126, subd. (f); see § 667, subd. (e)(1).)

Treating the filing as a recall petition under the statute, 2 the present trial court (Hon. Laurie M. Earl) 3 denied the petition without a hearing, finding defendant did not qualify for relief. Relying on the facts in our decision on appeal from…