Quinones

In this case we consider whether an arming enhancement— found true by the jury but dismissed for sentencing purposes at defendant Humberto Quinones’s original 1996 sentencing hearing — may be used to disqualify him for resentencing under Proposition 36. We conclude the answer is yes, and affirm the order denying his petition to recall his sentence under the Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, 1170.12, 1170.126; Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012) (the Act)).

BACKGROUND

A jury convicted defendant of two counts of possession for sale of heroin, one count of transportation of a controlled substance, and possession by a convicted felon of a firearm, and found he was personally armed with a firearm during the drug offenses, and had two prior strike convictions for two 1981 robberies. (§§ 211, 667, subd. (d), 1170.12, 12022, subd. (c); Health & Saf. Code, §§ 11351, 11352.) Defendant was found by peace officers with a loaded handgun in his waistband, while in possession of 80 doses of heroin, and a search of his home revealed an additional 1,500 doses of heroin. The sentencing judge struck the arming allegation “at this time as being…