People v. London CA3

DISCUSSION

Sections 1170.126, subdivision (e)(2), and 667, subdivision (e)(2)(C)(iii), operate as an exception to resentencing a third striker to a second strike sentence for a current offense that is a nonserious/nonviolent felony. Under these provisions, an inmate is ineligible for resentencing if, “[d]uring the commission of the current offense,” the defendant “used” or was “armed with a firearm.” (§ 667, subd. (e)(2)(C)(iii).) Defendant contends he could have been armed for purposes of the Act only if the prosecutor pleaded and proved an arming allegation beyond a reasonable doubt at trial. He also argues that the applicable statutory language suggests the arming exclusion does not apply to possession offenses because the possession must be “ ‘tethered’ ” and have some “ ‘facilitative nexus’ ” to a separate felony offense. A number of districts of the Court of Appeal, including this one, have rejected both arguments since briefing was completed in this case. (People v. White (2016) 243 Cal.App.4th 1354 (White); People v. Hicks (2014) 231 Cal.App.4th 275; People v. Elder (2014) 227 Cal.App.4th 1308; People

3 v. Blakely (2014) 225 Cal.App.4th 1042; People v. Osuna (2014) 225…