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 Cal.App.4th 1020.) We reject defendant’s arguments for the same reasons set forth in those cases. First, the Act does not require the prosecution to prove the exception at trial. “Under the prospective part of the Act [that applies to convictions occurring after the Act became effective], a defendant whose third strike is not a serious or violent felony shall receive a second strike sentence ‘unless the prosecution pleads and proves’ any of the four exceptions. ([] §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) In contrast, under the retrospective part of the Act [which is the part at issue here], after a defendant petitions for resentencing, ‘the court shall determine’ if any of the exceptions apply. ([] § 1170.126, subd. (f).) One of the exceptions is if the defendant ‘used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury’ in the commission of the current offense. ([] § 1170.12, subd. (c)(2)(C)(iii).) By its terms, the Act does not require a jury finding establishing this exception when a prisoner is seeking resentencing pursuant to the retrospective part of the Act; the court must simply ‘determine’ whether the exception applies.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1298, fn. 21.) Contrary to defendant’s argument, the Act’s authorizing the trial court to determine whether the exception applies does not violate his right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]. “[T]here is no constitutional violation in considering facts not decided by a jury at a postconviction proceeding pursuant to section 1170.126.” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1334.) Second, possessing a firearm may qualify as being armed with a firearm for purposes of the Act. White addresses this point well: “Defendant . . . argues that his original conviction, being for a ‘possessory’ offense, cannot support a finding he was armed during its commission. We disagree. Defendant’s argument is based largely on language in People v. Bland[ (1995)] 10 Cal.4th 991, 1002 (Bland), which explains why

4 the sentence enhancement that applies when a defendant is found to be armed ‘in the commission’ of an offense (§ 12022, subd. (a)(1), italics added) requires not only that that the arming happen ‘during’ the commission, but also that it have a ‘ “facilitative nexus” ’ to the commission of the offense. [Citation.] As defendant points out, being armed with a firearm does not facilitate the felony of merely possessing one. [Citation.] “However, that analysis is based specifically on the language of the arming enhancement, which is different from the language used to limit eligibility for relief under section 1170.126, subdivision (e)(2). Whereas the arming enhancement uses the phrase ‘armed with a firearm in the commission of a felony’ (§ 12022, subd. (a)(1), italics added), subdivision (e)(2) of section 1170.126 incorporates by reference the phrase “[d]uring the commission of the current offense.’ ([Citations], italics added.) While the former phrase, as explained in Bland, means the arming not only must occur during the commission of the felony, but must also facilitate it—the latter phrase specifically requires only that the arming occur during the commission. That states a different rule which would not exclude possessory offenses as a basis for finding a defendant was armed for purposes of determining eligibility for resentencing relief under section 1170.126.” (White, supra, 243 Cal.App.4th at pp. 1362-1363, italics added.) Sufficient evidence in the record demonstrates defendant was armed during the commission of the current offense for purposes of the Act. “ ‘Armed with a firearm’ has been statutorily defined and judicially construed to mean having a firearm available for use, ether offensively or defensively. [Citations.]” (People v. Blakely, supra, 225 Cal.App.4th at pp. 1051-1052.) Defendant had his gun available for use. When officers approached him, defendant was standing outside his truck doing something with his hands inside his truck. He refused to comply with the officers’ demands to show his hands, and then ran away as they approached him. Officers discovered a handgun, in plain sight, on the driver’s side floorboard of his truck about two inches from the door. The gun was loaded with .22-caliber rounds. Other .22-caliber rounds were scattered

5 across the truck’s seat. Officers also discovered live .22-caliber rounds on defendant. These facts show defendant was armed during the commission of his current felony, and thus is ineligible to have his sentenced recalled.

DISPOSITION

The order denying recall of defendant’s sentence is affirmed.

NICHOLSON , J.

We concur:

RAYE , P. J.

HOCH , J.

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