People v. Fontenot CA2/2

BACKGROUND

In 1995, defendant was convicted of being a felon in possession of a firearm, in violation of former Penal Code section 12021, subdivision (a)(1).1 In addition, the court found true the allegations that defendant had suffered two prior serious or violent felonies, which had been alleged in the information as prison enhancements pursuant to section 667.5, subdivision (b), as well as strikes under the “Three Strikes” law (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)). The trial court sentenced defendant to an indeterminate third-strike term of 25 years to life in prison, plus two years due to the prior prison terms. In 2013, defendant filed a petition for recall of sentence in the trial court pursuant to section 1170.1206 (Proposition 36), and the prosecution opposed the petition. Following a hearing, the trial court found that because defendant had been armed with a firearm during the commission of the crime, he was statutorily ineligible for recall and resentencing. The court thus denied the petition. Defendant filed a timely notice of appeal from the order denying his petition.

DISCUSSION

Defendant challenges the trial court’s finding that he was “armed” during the…