People v. Pontod CA3

DISCUSSION

I. Possession of a Firearm May Render an Inmate Ineligible for Resentencing

Within certain parameters, section 1170.126 permits three strikes inmates serving life terms for felonies that are neither serious nor violent to petition for resentencing. (§ 1170.126, subds. (b), (e)(1).) Section 1170.126 was added by Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act). Certain factors render an inmate ineligible for resentencing. The factor at issue in the present appeal is set forth in section 1170.126, subdivision (e)(2), which renders an offender ineligible for recall of sentence if “[d]uring the commission of the current offense, the defendant used a firearm, [or] was armed with a firearm or deadly weapon . . . .” (§ 667, subd. (e)(2)(C)(iii).)

Defendant argues the disqualifying provision of section 1170.126 for those “armed with a firearm or deadly weapon” requires a tethering felony, as the arming and use enhancements codified at sections 12022 and 12022.5 require, and cannot be based on a conviction solely premised on illegal firearm possession. This court rejected the identical argument in both People v. Elder (2014) 227 Cal.App.4th 1308 (Elder) and…