People v. McKinney CA2/6

DISCUSSION

McKinney argues that statutory construction of the arming exclusion compels the interpretation that arming must further commission of the underlying offense. Section 1170.126 provides that an offender serving a Three Strikes sentence may be eligible for resentencing where the current felony conviction is not a serious or violent felony. (People v. Johnson (2015) 61 Cal.4th 674, 681.) If the statutory eligibility criteria are satisfied and no exclusion applies, the trial court determines whether imposition of a two-strike determinate term presents an unreasonable risk of danger to public safety. (Id. at pp. 681-682.) The court then resentences the offender accordingly. An offender is statutorily ineligible for resentencing under the Act if, “[d]uring 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), 1170.126, subd. (e)(2); People v. Johnson, supra, 61 Cal.4th 674, 681.) “‘[A]rmed with a firearm’ has been statutorily defined and judicially construed to mean having a firearm available for…