1 Filed 2/18/15 P. v. Davis CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. CHRISTOPHER DAVIS, Defendant and Appellant. E060014 (Super.Ct.No. RIF111066) OPINION

APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Remanded with directions. Esther Kim Hong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistan t Attorney General, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.2 This is an appeal by defendant and appe llant Christopher Davis following the trial court’s order denying defendant’s petition to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36 (the Act). (Pen. Code, § 1170.126.) 1 On appeal, defendant makes num erous arguments related to th e denial of his petition for resentencing. For the reasons explained be low, we will remand the matter to allow the trial court to make an eligibility fi nding consistent w ith this opinion.
I FACTUAL AND PROCEDURAL BACKGROUND 2 Early one morning in August 2002, while defendant was living with his girlfriend, Lisa McDowell, in a one-bedroom apartment, United States Postal Inspectors searched defendant and McDowell’s apar tment. When the inspecto rs knocked and announced their presence, McDowell immediately let them in. Defendant remained in the bedroom while the inspectors repeatedly called for anyone else to come out. Finally, after the inspectors called out defendant’s na me, defendant exited the bedroom. The inspectors searched the bedroom. Defendant’s pants with his wallet were on the floor to the right of the bed. On top of the nightstand, on the right side of the bed, was a box of .38-caliber ammunition, two .25- caliber bullets, and a 380-automatic bullet.

1 All future statutory references are to the Penal Code unless otherwise stated.

2 The factual background of the underlyi ng offense is taken from this court’s nonpublished opinion in defend ant’s prior appeal following his current convictions (see People v. Davis (June 15, 2005, E036278) [nonpubl. opn.]).3 There was also .25- and 380-caliber amm unition on top of the dresser. Inspector Goodrich bumped the bed and a loaded .4 4-magnum semiautomatic handgun fell onto his foot, from a cavity in the underside of the bed box spring. Inspector Griffin found in the bedroom closet a plastic bag containing letters addressed to “Slow Poke” and to “Mr. S. Capone”; photographs of defendant with fellow Insane Crip gang member Lovell Polk, known as “Red”; and a couple .25-caliber bullets. Also in th e closet were utility bills and other papers beari ng defendant’s name. Defendant’s gang moniker was “Slow Poke” and sometimes he used the name, “Slow Capone.” At trial, McDowell testified that she di d not bring the ammun ition or gun into the apartment and the gun was not hers. She said de fendant slept on the right side of the bed. She saw him with the gun in the living room in February or March th at year and told him to get rid of it. McDowell had convictions for robbery, petty theft with a prior, passing a bad check, burglary, and giving a fa lse I.D. to the police. At th e time of her testimony, she was in custody in Chowchilla for a probation violation. Later on the day of the search, defe ndant called McDowell from the detention center and told her to tell “cu z” that the police had seized the .44-magnum handgun. Defendant had not previo usly been told the caliber of th e gun the inspectors found in his bedroom. The call was taped. While detention center correctional deput y, Thomas Tanner, was screening inmate mail, he noticed an envelope with defenda nt’s name and booking number on it and a4 letter. The letter requested others, in effect , to intimidate or eliminate McDowell as a witness. On July 19, 2004, defe ndant was found guilty of ex-felon in possession of a firearm (former § 12021, subd. (a)(1 )) and unlawful possession of ammunition (§ 12316, subd. (b )(1)). In a bifurcated proceeding, the trial court found true that defendant had suffered 10 prior strike co nvictions (§§ 667, subd. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)) and two prior prison terms (§ 667. 5, subd. (b)). Defendant was sentenced to a total term of 27 years to life in state prison. On November 6, 2012, the electorate passed Proposition 36, also known as the Act. Among other things, this ballot meas ure enacted section 1170.126, which permits persons currently serving an indeterminate life term under the “Three Strikes” law to file a petition in the sentencing court seeking to be resentenced to a determinate term as a second striker. (§ 1170.126, su bd. (f).) If the trial court determ ines, in its discretion, that the defendant meets the criteria of secti on 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).) Section 1170.126, subdivisio n (e), provides, as pertinent here, that a defendant is eligible for resentencing if he or she is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or subdivision (c) of section 1170 .12 “for a conviction of a fel ony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§ 1170.126, s ubd. (e)(1).) The Act makes5 ineligible for resentencing those persons wh o “[d]uring the commission of the current offense, the defendant used a firearm, [or] was armed with a firearm . . . .” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2 )(C)(iii); see § 1170.126, subd. (e).) On January 10, 2013, defe ndant, in pro. per., filed a petition for resentencing under section 1170.126. The court thereafter appointed counsel to represent defendant. On April 17, 2013, defendant’s counsel filed a resentencing brief, and again on May 6, 2013. On April 18, 2013, the People filed three oppos itions to defendant’s petition for resentencing. The People opposed the pe tition on the ground that defendant was statutorily ineligible for resentencing under the Act because during the commission of his commitment offenses, defendant was armed with a firearm. The People also opposed the petition on the basis that defenda nt continued to pose an unr easonable risk of danger to public safety based on his past criminal behavior and contin ued criminal behavior while incarcerated. The trial court heard the petition on Novemb er 8, 2013. At that time, defendant filed a psychological report from Dr. Robert Suiter, as well as letters of support, education progress reports, and education cer tificates. Following argument from the parties, the trial court denied the petition, finding defendant c ontinued to pose an unreasonable risk of danger to public safety. 3 Defendant timely filed an appeal on November 12, 2013. We note that in

3 There is no indication in the record whet her or not the trial court made the initial determination of eligibility for resent encing under section 1170.126.6 Teal v. Superior Court (2014) 60 Cal.4th 595, 597, our Supreme Court recently concluded decisions under th e “Three Strikes Reform Act” are appealable orders.
II DISCUSSION A. The Act Generally “The Act amended sections 667 and 1170.12 and added section 1170.126; it changed the requirements for sentencing some th ird strike offenders. ‘Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sent ence for cases where the current crime is a serious or violent felony or the prosecu tion has pled and proved an enumerated disqualifying factor. In all other cases, the re cidivist will be sentenced as a second strike offender. [Citations.] The Act also crea ted a postconviction release proceeding whereby a prisoner who is serving an indeterminate li fe sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and w ho is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing woul d pose an unreasonable risk of danger to public safety. (§ 1170.126.)’ ” ( People v. Brimmer (2014) 230 Cal. App.4th 782, 791 [Fourth Dist., Div Two] ( Brimmer ), quoting People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 ( Yearwood ).)7 “Thus, there are two parts to the Act: the first part is prospective only, reducing the sentence to be imposed in future three strike cases wher e the third strike is not a serious or violent felony [citations]; the sec ond part is retrospective, providing similar, but not identical, relief for pris oners already serving third stri ke sentences in cases where the third strike was not a serious or viol ent felony (Pen. Code, § 1170.126.).” ( People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 12 79, 1292, italics omitted ( Kaulick ).) “The main difference between the prospective and the retrospective parts of the Act is that the retrospective part of the Act cont ains an ‘escape valve’ from resentencing for prisoners whose release poses a risk of danger.” ( Id . at p. 1293.) We agree with defendant that his current commitment felony offenses of felon in possession of a firearm and unlawful possession of ammunition are not serious or violent felonies under section 667. 5, subdivision (c), or section 1192.7, subdivision (c). However, the inquiry does not en d with whether or not the cu rrent conviction is a serious or violent felony. As previously noted, an inma te is eligible for such resentencing if none of his or her commitment offenses c onstitute serious or violent felonies and none of the enumerated factors disqualifyi ng a defendant for resentencing under the Act apply. (§ 1170.126 , subd. (e).) Being armed with a firearm during the commission of a current offense is a disqualifying factor listed in section 667, subdivision (e)(2 )(C)(iii), and section 1170.12,8 subdivision (c)(2)(C)(iii). 4 Thus, under the plain language of the armed with a firearm exclusion, defendant is ineligible for resent encing relief as a second strike offender if his life sentence was “imposed” because “[d]uring the commission of the current offense, [he] . . . was armed with a firear m.” (§§ 667, subd. (e)(2)(C)(iii) & 1170.12, subd. (c)(2)(C)(iii), both cross-refere nced in § 1170. 126, subd. (e)(2).) “In approving the Act, the voters found and declared that its purpose was to prevent the early release of dangerous crim inals and relieve prison overcrowding by allowing low-risk, nonviolent inmates serving life sentence s for petty crimes, such as shoplifting and simple drug possession, to rece ive twice the normal sentence instead of a life sentence. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) te xt of Prop. 36, § 1, subds. (3), (4) & (5), p. 105 (V oter Information Guide); see People v. White (2014) 223 Cal.App.4th 512, 522 . . . ( White ) (review den. Apr. 30, 2 014, S217030 [Fourth Dist.,

4 Section 667, subdivision (e)(2)(C)(iii), provides: “[(e)(2)](C ) If a defendant has two or more prior serious and/or violent fe lony convictions as defined in subdivision (c) of Section 667.5 or su bdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violen t felony as defined in subdivision (d), the defendant shall be sentenced [as a second stri ke offender] pursuant to paragraph (1) of subdivision (e) unless the prosecu tion pleads and proves any of th e following: [¶ ] . . . [¶] (iii) During the commission of the current offense, the defendant used a firearm, [or] was armed with a firearm . . . .” (Italics added.) Section 1170.12, subdivision (c)(2)(C)(iii), provides: “[(c)(2)] (C) If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of S ection 1192.7 that have been pled and proved, and the current offense is not a felony descri bed in paragraph (1) of subdivision (b) of this section, the defendant shall be sentence d [as a second strike offender] pursuant to paragraph (1) of subdivision (c) of this secti on, unless the prosecuti on pleads and proves any of the following: [¶] . . . [¶] (iii) During the commission of th e current offense, the defendant used a firearm, [or] was armed with a firearm . . . .” (Italics added.)9 Div. One].) The electorate also mandated that the Act be liberally construed to effectuate the protection of the health, safety, and welf are of the people of California. (Voter Information Guide, supra , text of Prop. 36, § 7, p. 110; see White , supra , at p. 522.) Accordingly, we liberally construe the provis ions of the Act in order to effectuate its foregoing purposes and note that findings in voter information guides may be used to illuminate ambiguous or unce rtain provisions of an enac tment. [Citations.]” ( Brimmer , supra , 230 Cal.App.4th at p. 793, citing White , supra , at p. 522 and Yearwood , supra , 213 Cal.App.4th at pp. 170-171.)
B. Eligibility Finding Anticipating that the People will argue he was ineligible for re sentencing under the armed with a firearm exclusion, defendant in itially argues the People forfeited this claim for failing to press the court to rule on this i ssue. In the alternativ e, defendant argues the armed with a firearm exclusion does not appl y, because the trial court, reviewing the petition, implicitly found he was not arme d with a firearm during his commitment offenses and therefore eligible to be resent enced under the Act. The People respond that they did not forfeit this claim since the trial court was not au thorized to resentence him under the Act, and any reduction in defendant’ s sentence would have been unauthorized. We reject defendant’s claim that th e People forfeited the initial eligibility determination. The People argued defendant was ineligible to be resentenced under the Act based on the armed with a firearm exclus ion in their oppositi on motions. Although the People never “press[ed] for a ruling,” as defendant claims citing People v. Ramirez10 (2006) 39 Cal.4th 398, 472-473, the trial court never made an initial ineligibility finding. In ruling on a section 1170.126 resentencing petition, the trial court must first determine whether an inmate is eligible for resentencing. (§ 1 170.126, subd. (f).) Here, the court never made the initial determ ination of eligibility based on defendant’s record of conviction. As such, if defendant was ine ligible due to being armed with a firearm during the commission of his commitment offens es, the court would not be authorized to make a dangerousness finding under the Act. (§ 11 70.126, subd. (f); Kaulick , supra , 215 Cal.App.4th at pp. 1 293-1294, fn. 12.) Defendant ignores that there are two separa te considerations under the Act. First, the trial court must determine whether an in mate is eligible for resentencing. And second, the trial court must evaluate whether resentencing an eligible inmate would pose an unreasonable risk of danger to the public. An inmate is eligible for resentencing if: the inmate is serving an indeterminate life term imposed for a non-serious, non-violent felony conviction; the inma te’s current sentence was not imposed for any of the disqualifying offenses specified in section 1170.126, subdivision (e)(2); and the inmate has no prior convictions for any of the dis qualifying offenses adverted to in section 1170.126, subdivision (e )(3). (§ 1170.126, subd. (e).) As previously noted and as held by this court in Brimmer , supra , 230 Cal.App.4th 782, under the plain language of the armed with a firearm exclusion, defendant is ineligible for resentencing relief as a second strike offender if his life sentence was “i mposed” because “[d]uring the commission of the current offense, [he] . . . was armed with a firearm.” ( Id . at p. 793, citing §§ 667,11 subd. (e)(2)(C)(iii) & 1170.12, subd. (c)(2)(C)( iii), both cross-referen ced in § 1170.126, subd. (e)(2).) If the inmate is eligible, the trial court must resenten ce the inmate unless, in its discretion, the trial court determines resent encing the inmate would pose an unreasonable risk of danger to the pub lic. (§ 1170.126, subd. (f); Kaulick , supra , 215 Cal.App.4th at pp. 1293-1294, fn. 12.) Hence, there are two separate considerations. First, the trial court must determine whether an inmate is eligible for resentencing. And second, the trial court must evaluate whether resenten cing an eligible inmate would pose an unreasonable risk of danger to the public. Here, the trial court never made the initial determination of eligibility base d on defendant’s record of co nviction. Accordingly, as explained below, the matter must be remanded. C. Armed With a Firearm Exclusion Based on the rule of lenity, the People’s failure to plead the firearm exclusion, and the facts of this case, defendant argues that he was eligible for resentencing because he was not armed with a firearm during the commission of his commitment offenses. We note that several published cases ha ve held that the Act does not contain a pleading and proof requirement with respect to factors that disqualify defendants from resentencing, including our decision in Brimmer , supra , 230 Cal.App.4th 782; White , supra , 223 Cal.App.4th 512 (F ourth Dist., Div. One); People v. Osuna (2014) 225 Cal.App.4th 1020 ( Osuna ) (Fifth Dist.); People v. Blakely (2014) 225 Cal.App.4th 1042, (Fifth Dist.) ( Blakely ); and People v. Elder (2014) 227 Cal.App.4th 1308 ( Elder ) (Third12 Dist.). Our colleagues in White , supra , 223 Cal.App.4th 512, a nd more recently our colleagues in Osuna , supra , 225 Cal.App.4th 10 20 have found the pleading and proof requirement “plainly is a part of only the prospective part of the Reform Act, which governs the sentencing of a defendant with ‘two or more prio r serious and/or violent felony convictions’ who has suffered a thir d felony conviction; it is not a part of section 1170.126, the retrospective part of the Reform Act that governs a petition for resentencing brought by an inmate already serving a life sentence under the Three Strikes law.” ( White , at p. 527, italics in original; accord, Osuna , at p. 1033; Blakely , supra , 225 Cal.App.4th at p. 1058.) Our analysis ha s led this court to the same statutory interpretation. ( Brimmer , supra , 230 Cal.App.4th at pp. 793-803.) We also find that using a disqualifying fa ctor not pled and proved to the jury does not violate a defendant ’s constitutional rights to due process and a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 ( Apprendi ) and its progeny. Appellate courts have consistently found that the re sentencing provisions u nder section 1170.126 are akin to a hearing regarding “downward sentence modifications due to intervening laws” ( Kaulick , supra , 215 Cal.App.4th at p. 1304), and therefore Apprendi and the limitations of the Sixth Amendment do not apply to resentencing determinations. (Accord, Brimmer , supra , 230 Cal.App.4th at pp. 804-805 [ Apprendi and its progeny do not apply to a determination of eligibility under the Act]; White , supra , 223 Cal.App.4th at p. 527 [same]; Osuna , supra , 225 Cal.App.4th at p. 1039 [same]; Blakely , supra , 225 Cal.App.4th at p. 1060 [same].)13 Determinations required under sec tion 1170.126 are not factors justifying enhancing a defendant’s sentence beyo nd the statutory maximum. (See Kaulick , supra , 215 Cal.App.4th at pp. 1302-1304.) As su ch, “the United States Supreme Court has already concluded that its opinions regardin g a defendant’s Sixth Amendment right to have essential facts found by a jury beyond a reasonable d oubt do not apply to limits on downward sentence modifications due to intervening laws.” ( Id . at p. 1304, citing Dillon v. United States (2010) 560 U.S. 817, 829.) “The retrospective part of the Act is not constitutionally required, but an act of lenity on the part of the electorate. It does not provide for wholesale resentencing of elig ible petitioners. Instead, it provides for a proceeding where the original sentence may be modified downward. Any facts found at such a proceeding, such as dangerousness, do not implicate Sixth Amendment issues. Thus, there is no constitutional requirement that the facts be established beyond a reasonable doubt.” ( Kaulick , at pp. 1304-1305; accord, Brimmer , supra , at p. 805, quoting Osuna , at p. 1040 [“A finding an inmate is not eligible for resentencing under section 1170.126 does not increase or aggrav ate that individual’s sentence; rather, it leaves him or her subject to the sentence originally imposed.” Osuna , at p. 1040; see Blakely , at p. 1061].) “A trial court’s determin ation that a defendant is ineligible for resentencing pursuant to sec tion 1170.126 does ‘not increa se the penalty to which [a] defendant [is] already subject, but instead disqualifie[s] [a] defendant from an act of lenity on the part of the electorate to which [a] defendant was not constitutionally entitled.’ ” ( Brimmer , at p. 805, quoting Osuna , at p. 1040.)14 We further conclude that the Act doe s not require a facilitative nexus or a “tethered” felony for the armed with a firear m exclusion to apply. Unlike section 12022, which requires that a defendant be armed “ in the commission of ” a felony for additional punishment to be imposed ( italics added), the Act disqualif ies an inmate from eligibility for lesser punishment if he or she was armed with a firearm “ during the commission of ” the current offense (italics added). “ ‘Duri ng’ is variously defined as ‘throughout the continuance or course of’ or ‘at some poi nt in the course of.’ (Webster’s 3d New Internat. Dict. (1993) p. 703.)” ( Osuna, supra , 225 Cal.App.4th at p. 1032.) Thus, there must be a temporal nexus between the arming and the underlying felo ny, not a facilitative one. The two are not the same. ( People v. Bland (1995) 10 Cal. 4th 991, 1002 ( Bland ) [“ ‘in the commission’ of” requires both that “ ‘arming’ ” occur during underlying crime and that it have facilitative nexus to offense ].) Since the Act uses the phrase “[d]uring the commission of the current offense,” and not in the commission of the current offense (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the imposition of additional punishment but rather eligibility for reduced punishment, we conclude the plain lang uage of the Act disqualifies an in mate from resentencing if he or she was armed with a firearm during the unlawfu l possession of that fi rearm if the record of conviction shows the firearm was readily av ailable for offensive or defensive use. ( Brimmer , supra , 230 Cal.App.4th at pp. 796-800.)
In Brimmer , supra , 230 Cal.App.4th 782, followin g an analysis of the firearm enhancement statutes, we held: “a defendant is armed if the gun has a facilitative nexus15 with the underlying offense (i.e., it serves some purpose in connection with it); however, this requires only that the defendant is awar e during the commission of the offense of the nearby presence of a gun available for use o ffensively or defensively, the presence of which is not a matter of happenstance. This does not require any intent to use the gun for this purpose.” ( Id . at pp. 794-795, citing People v. Pitto (2008) 43 Cal.4th 228, 239- 240, italics in original.) We further explai ned: “Although the crime of possession of a firearm by a felon may involve the act of personally carrying or being in actual physical possession of a firear m, as occurred [there], such an act is not an essential element of a violation of former section 12 021, subdivision (a), because a conviction of this offense may also be based on a defenda nt’s constructive possession of a firearm. [Citations.] . . . Hence, while the act of being armed with a firearm—that is, having ready access to a firearm ( Bland , supra , 10 Cal.4th at p. 997)—nec essarily requires possession of the firearm, possession of a firearm does not necessarily require that the possessor be armed with it.” ( Brimmer at p. 795, citing People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 [a conviction for possession of a gun can also be based on constructive possession of the gun] and People v. Mejia (1999) 72 Cal.App.4th 1269, 1272 [defendant need not physically have th e weapon on his person; constr uctive possession of a firearm “is established by showing a knowing exerci se of dominion and control” over it].) The appellate court in White affirmed the holding that the defendant was not eligible for resentencing beca use the “armed-with-a-firearm” ex clusion applied. In that case, the defendant’s underlying conviction was for possession of a firearm by a felon.16 The court recognized that actual possession is not an essential element of that offense, because a conviction for viola tion of former section 12021, subdivision (a), may be based on a defendant’s constructive possession of a firearm. ( White , supra , 223 Cal.App.4th at p. 524.) Even though the info rmation had not alle ged that the defendant was armed with a firearm nor contained a sentence enhancem ent allegation that he was so armed, the record showed that he ha d been armed with a firear m during the commission of the current offense. The court de termined that the armed with a firearm exclusion applied based on the record, and rejected the defe ndant’s claim that the pleading and proof requirement applied to the retros pective portion of the Act. ( Id . at p. 526-527.) In April 2014, the Fifth District publishe d four cases germane to this issue: People v. Superior Court ( Cervantes ) (2014) 225 Cal.App.4th 1007, 1011 ( Cervantes ); People v. Superior Court ( Martinez ) 225 Cal.App.4th 979, 984-985 ( Martinez ); Osuna , supra , 225 Cal.App.4th 1020; and Blakely , supra , 225 Cal.App.4th 1042. The California Supreme Court denied review in a ll of these cases on July 9, 2014.
In Blakely , the court held that a defendant co nvicted of being a felon in possession of a firearm is not automatically disqua lified from resentencing because of that conviction. Such a defendant is disqualified for resentencing only if he or she had the firearm available for offensive or defensive use. 5 ( Blakely , supra , 225 Cal.App.4th at

5 In addition to applying standard prin ciples of statutory construction in the court’s analysis of section 1170.126 in Blakely , the court also considered the rule of lenity, which defendant argues is operative here. ( Blakely , supra , 225 Cal.App.4th at pp. 1053-1054.)17 pp. 1048, 1056 -1063.) In Cervantes and Martinez , the court held a defendant may be barred from resentencing and is armed with a fi rearm even if he or she was not carrying a firearm on his or her person. ( Cervantes , supra , 225 Cal.App.4th at pp. 1011-1018; Martinez , supra , 225 Cal.App.4th at pp. 984-985, 989-995.)
In Osuna , supra , 225 Cal.App.4th 1020, the court held that wh ere there are facts in the record of conviction showing the defe ndant was armed with a firearm—meaning it was available for immediate offensive or defensive use—during the commission of the defendant’s current offense, the defendant is disqualified from resentencing under the Act even though he or she was convicted of possessing the fire arm and not of being armed with it. The court further concluded th at being armed with a firearm during the commission of the current offense for the pur poses of the Act does not require that the possession be “tethered” to or have some “f acilitative nexus” to an underlying felony. ( Osuna , at pp. 1026-1040.) The court explained: “unlike section 12022, which requires that a defendant be armed ‘ in the commission of’ a felony for additional punishment to be imposed (italics added), the Act disqualifie s an inmate from eligibility for lesser punishment if he or she was armed with a firearm ‘ during the commission of’ the current offense (italics added). ‘During’ is variously defined as ‘throughout the continuance or course of’ or ‘at some point in the course of.’ [Citation.] In ot her words, it requires a temporal nexus between the arming and the un derlying felony, not a facilitative one. The two are not the same. [Citation.]” ( Id . at p. 1032; accord, Brimmer , supra , 230 Cal.App.4th at pp. 798-799.)18 Here, defendant was not per se prohib ited under the Act from making a motion for resentencing. Rather, if the record of conviction shows defendant had a firearm for offensive or defensive use at the time of hi s arrest for being a felon in possession of a firearm meant defendant was armed with a firearm. If such a finding was made, a defendant would be disqualified from consideration for resentenci ng pursuant to the Act. The trial court here did not make the initial threshold finding base d on defendant’s entire record of conviction. ( Brimmer , supra , 230 Cal.App.4th at pp. 800-801, citing People v. Woodell (1998) 17 Cal.4th 448, 454-457 and People v. Blackburn (1999) 72 Cal.App.4th 1520, 1526-1527, 1531- 1532 [Fourth Dist., Div. Two] [preliminary hearing transcript on prior offenses supported determination prio r conviction was a seri ous felony]; accord, White , supra , 223 Cal.App.4th at p. 525 [reliance on record of conviction including information, pretrial motio n, and closing argument]; Blakely , supra , 225 Cal.App.4th at pp. 1058-1063 [a trial court may examine rele vant, reliable, admissible portions of the record of conviction to determine disqualifying factors]; People v. Bradford (2014) 227 Cal.App.4th 1322, 1336-1338 [re liance on record of convicti on but may not consider new evidence outside of the r ecord of conviction].) There is no indication in the record to show whether the court even assessed from the record of conviction the ex istence of the disqualifying fa ctor. And, the record does not contain any findings ma de by the court as to the initial threshold question of eligibility. As such, the matter must be remanded to the tria l court to determine, based on19 defendant’s entire record of c onviction, the threshold question of eligibility, i.e., whether defendant was armed with a firearm during th e commission of his commitment offenses.
III DISPOSITION The judgment is remanded with directi ons in accordance w ith this opinion. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:

McKINSTER J.

MILLER J.