People v. Carter CA2/7

DISCUSSION

On appeal, Carter argues that former section 12021 subdivision (a)(1) is not a crime enumerated in Proposition 36 as being excluded from eligibility for resentencing, and that, under the circumstances of his conviction, he should not be deemed ineligible for resentencing. As relevant here, an inmate is not eligible for resentencing under section 1170.126 if his or her current sentence was “imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e)(2).) The referenced statutes prohibit treating a third strike offender as a second strike offender for purposes of sentencing 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).) Acknowledging this provision, Carter argues that these factors may not be part of the offense in question, but must be found in…