Filed 12/8/15 P. v. Gregory CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

WALTER GREGORY, JR.,

Defendant and Appellant.

 B263652

 (Los Angeles County Super. Ct. 

 No. YA033903)

APPEAL from an order of the Superior Court of Los Angeles County, William C. 

Ryan, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. 

Lennon, Staff Attorney, under appointments by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill, Deputy 

Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and 

Respondent.

_____________________________
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Defendant and appellant Walter Gregory, Jr. was sentenced to an indeterminate 

life term under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. 

(a)-(d))

1 after a jury convicted him in 1998 of being a felon in possession of a firearm 

(former § 12021, subd. (a)(1)). After Proposition 36 was enacted in 2012, defendant

petitioned to have his indeterminate life sentence recalled under section 1170.126, and 

the trial court denied his petition. We affirm because the defendant was “armed” during 

his gun possession offense and therefore ineligible for relief under Proposition 36. 

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying defendant’s gun possession conviction were described in an 

unpublished opinion by this court affirming defendant’s conviction as follows. Police 

“blocked a car containing defendant and defendant’s brother-in-law, Eugene Payne 

(Eugene). Eugene was in the driver’s seat, and defendant was in the right rear passenger 

seat. Both men were ordered by officers at gunpoint to put their hands in the air. Eugene 

immediately complied, but defendant kept his hands down, moving them outside of the 

view of the officers. [¶] Eventually, both defendant and Eugene were removed from the 

car. Officers recovered a loaded chrome .380 semiautomatic pistol from an area under 

the right rear passenger seat. Defendant told Officer Michael Shimkus the gun had been 

handed to him by a motel occupant, who told him to hide the gun. Eugene told Officer 

Chris Komathy that when the officers arrived, defendant told Eugene, ‘Tell them it[’]s 

your gun. Tell them it[’]s your gun.’” A jury convicted defendant of being a felon in 

possession of a gun, defendant admitted to suffering three prior “strike” convictions (§§ 

667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and was sentenced to an indeterminate prison 

term of 25 years to life. 

In 2012, the voters enacted Proposition 36, which “amended the Three Strikes law 

so that an indeterminate life sentence may only be imposed where the offender’s third 

 

1 All further statutory references are to the Penal Code. 
3

strike is a serious and/or violent felony or where the offender is not eligible for a 

determinate sentence based on other disqualifying factors. (Pen. Code, §§ 667, subd. 

(e)(2)(C), 1170.12, subd. (c)(2)(C).) [Proposition 36] also enacted section 1170.126, 

establishing a procedure for an offender serving an indeterminate life sentence for a third 

strike conviction that is not defined as a serious and/or violent felony to file a petition for 

recall of sentence. (§ 1170.126, subd. (b).)” (Teal v. Superior Court (2014) 60 Cal.4th 

595, 596-597, fn. omitted.)

After Proposition 36 was enacted, defendant filed a petition to recall his 

indeterminate sentence. After briefing and a hearing at which the trial court accepted into 

evidence transcripts from the 1998 criminal trial and a copy of our 1999 opinion 

affirming the judgment, the court denied the petition, finding defendant was ineligible for 

relief under Proposition 36 because he was armed with a firearm. (§§ 667, subd. 

(c)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) 

DISCUSSION

Defendant contends the trial court’s order erroneously construed the ineligibility 

criteria set forth in Proposition 36. He argues that nothing in the statutory language 

disqualifies a defendant who is serving a sentence based solely on a charge of gun 

possession. (§§ 667, subd. (c)(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii); see § 1170.126, 

subd. (e)(2).) Consistent with published opinions from the Third, Fourth, and Fifth 

District Courts of Appeal, we reject defendant’s contention.

The court’s order denying the petition for resentencing is an appealable 

postjudgment order. (§ 1237, subd. (b); Teal v. Superior Court, supra, 60 Cal.4th at p. 

601.) “‘In interpreting a voter initiative . . . we apply the same principles that govern 

statutory construction. [Citation.] Thus, “we turn first to the language of the statute, 

giving the words their ordinary meaning.” [Citation.] The statutory language must also 

be construed in the context of the statute as a whole and the overall statutory scheme [in 

light of the electorate’s intent]. [Citation.] When the language is ambiguous, “we refer 
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to other indicia of the voters’ intent, particularly the analyses and arguments contained in 

the official ballot pamphlet.” [Citation.]’ [Citation.] In other words, ‘our primary 

purpose is to ascertain and effectuate the intent of the voters who passed the initiative 

measure.’ [Citation.]” (People v. Briceno (2004) 34 Cal.4th 451, 459; accord, People v. 

Park (2013) 56 Cal.4th 782, 796.)

Section 1170.126, subdivision (e), sets forth eligibility criteria that a defendant 

must meet in order to be resentenced under Proposition 36. A defendant is only 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 felony 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, subd. (e)(1).) A defendant is not eligible for resentencing if the 

indeterminate term was imposed for an offense where “[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)(2).)

“‘[A]rmed with a firearm’ has been statutorily defined and judicially construed to 

mean having a firearm available for use, either offensively or defensively. [Citations.]” 

(People v. Blakely (2014) 225 Cal.App.4th 1042, 1051-1052 (Blakely).) This definition 

applies to the arming exclusion to resentencing eligibility at issue in this case. (Ibid.)

Where “the record establishes that a defendant convicted under the pre-Proposition 36

version of the Three Strikes law as a third strike offender of possession of a firearm by a 

felon was armed with the firearm during the commission of that offense, the armed-witha-firearm exclusion applies and the defendant is not entitled to resentencing relief . . . .” 

(People v. White (2014) 223 Cal.App.4th 512, 519 (White).)

It is clear from the record that at the time police encountered defendant, he had a 

firearm “available for use, either offensively or defensively” and was therefore “armed 

with a firearm.” (Blakely, supra, 225 Cal.App.4th at p. 1051.) When officers first found 

defendant in the right rear passenger seat of his brother-in-law’s car, they ordered 

defendant and his brother-in-law to put their hands in the air. Defendant kept his hands 
5

down, and after he was removed from the car, officers found a gun in an area under the 

right rear passenger seat. The court correctly found that defendant was ineligible for 

resentencing under Proposition 36 because he was armed with a firearm.

Defendant acknowledges that there have been several published opinions from the 

Third, Fourth, and Fifth District Courts of Appeal rejecting his argument. (See, e.g., 

People v. Hicks (2014) 231 Cal.App.4th 275, 283-284; People v. Brimmer (2014) 230 

Cal.App.4th 782, 797-799; People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314; 

Blakely, supra, 225 Cal.App.4th at pp. 1054-1057; People v. Osuna (2014) 225 

Cal.App.4th 1020, 1030-1038; White, supra, 223 Cal.App.4th at p. 519.) Defendant 

contends that each of these cases is either distinguishable or wrongly decided. We are 

not persuaded. 

DISPOSITION

The order denying the petition for resentencing is affirmed.

KRIEGLER, J. 

We concur: 

TURNER, P. J.

BAKER, J.