1 ( SEE CONCURRING & DISSENTING OPINION ) Filed 7/15/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. KENNETH ELDER, Defendant and Appellant. C073731 (Super. Ct. No. 94F05502)

APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M. Earl, Judge. Order affirmed; alternately, ap peal treated as petition for a writ of habeas corpus and denied. George Bond and John Hargreaves, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys Genera l, for Plaintiff and Respondent.2 In December 2012, defenda nt Kenneth Elder filed wh at he titled a petition for a writ of habeas corpus (though invoking Pen. Co de, § 1170.126) 1 seeking to recall his 1995 indeterminate life sentence. The stat ute, enacted pursuant to a November 2012 initiative measure, provides retrospective re lief under narrow criteria from indeterminate life sentences imposed for recidivism. Defe ndant alleged that his commitment offense— unlawful possession (as a convicted felon) of a gun—was not a “serious” or violent felony and did not otherwise come within any exception to section 1170.126, and therefore he was entitled to be considered for resentencing to a determinate sentence of double the term that would otherwise apply to his offense (which is what a court would impose under the prospective amendments to the recidivist sentencing statutes enacted as part of the same initia tive). (§ 1170.126 , subd. (f); see § 667, subd. (e)(1).) Treating the filing as a reca ll petition under the statute, 2 the present trial court (Hon. Laurie M. Earl) 3 denied the petition without a hear ing, finding defendant did not qualify for relief. Relying on the facts in our decision on appeal from defendant’s original sentence ( People v. Elder (Feb. 3, 1997, C020780) [n onpub. opn.]), the trial court found that during the commission of th e commitment offense defendant was armed with a gun and thus his commitment offense wa s ineligible for resent encing (§ 1170.126, subd. (e)(2), cross-referencing § 667, subd. (e)(2)(C)(iii)).

1 Undesignated statutory references are to the Penal Code. 2 As defendant pursued relief from a final conviction pursuant to section 1170.126, we do not need to address the contretemps rega rding whether a defendant whose sentence is not yet final on appeal is entitled to app lication of the revised sentencing provisions without filing a petition for recall pursuan t to section 1170.126. (Compare People v. Yearwood (2013) 213 Cal.App.4th 161, 168 ( Yearwood ) [no] with People v. Contreras (2013) 221 Cal.App.4th 558 [yes], review granted Jan. 29, 2014, S215516.) 3 The original sentencing judge (Hon. John V. Stroud (Ret.)) was no longer available. (§ 1170.126, subd s. (b), (j).)3 Contending this ruling was an order after judgment affecting his substantial rights (§ 1237, subd. (b)), defe ndant filed an appeal. 4 As defendant’s commitment offense was

not facially ineligible for resentencing, we have jurisdiction on appe al at least to determine whether the denial affected his substa ntial rights. He argues that as a matter of statutory interpretation he cannot be armed while committing the crime of unlawful possession of a gun; alternately, he argues th at the prosecution had to plead and prove this circumstance in the proceedings underl ying his commitment offe nse. Disagreeing with both claims, we find the trial court properly concluded that defendant was ineligible for resentencing. Assuming that denial of his petition is appealable even if it did not affect his substantial rights, this court will a ffirm the order. (Alternately, this court will treat the appeal as a petition for a wr it of habeas corpus and deny it.) There are only a limited number of releva nt background facts beyond those stated in the introduction. We will incorporate them in the Discussion rather than set them out separately.

DISCUSSION I. For Purposes of Section 1170.12 6, Unlawful Possession of a Firearm Can Constitute Being Ar med During an Offense

As cross-referenced in section 1170.126, subdivision (e)(2), a commitment offense is ineligible for recall of sentence if “[ d ] uring [ its ] commission . . . , 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), ita lics added.) The parties have not suggested that we should interpret “armed” any differently in this context than its

4 Defendant filed a motion to take judicial notice of the record in his prior appeal; we granted the motion, though we construe it as one to incorporate the r ecord by reference in the present proceedings.4 interpretation for purposes of the fi rearm enhancement in section 12022: 5 A defendant is armed if the gun has a facilitative ne xus with the underlying offense (i.e., it serves some purpose in connection with it); howeve r, this requires only that the defendant is aware during the commission of the offe nse of the nearby presence of a gun available for use offensively 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. ( People v. Pitto (2008) 43 Cal.4th 228, 239-240.) With section 12022 as his springboard, de fendant launches into a survey of cases applying the armed enhancement (that we do not need to recapitulate ) in support of the unremarkable point that an enhancement of necessity does not have any independent existence and must as a result be tied to an underlying offense ( People v. Izaguirre (2007) 42 Cal.4th 126, 134; People v. Wims (1995) 10 Cal.4th 293, 304), concluding on this basis that ineligibility for resentencing for being “armed” therefore must require something beyond the substantiv e offense of possession itself. The illogic of this line of reasoning rests on its conflating the criterial definition of an ineligible offense (being armed during the commission of such offense) with the derivative nature of the armed enhancement (which requires being armed in the commission of an offense). 6 Our task instead is to divine whether possessing a g un can constitute being armed with the gun during the possession. Neither we nor the parties have identif ied any authority in which the prohibition in the arming enhancement on its use with offe nses that have arming as an element arose

5 The statute prescribes a one-year enhanc ement for “a person who is armed with a firearm in the commission of a felony . . . unless the arming is an element of that offense.” (§ 12022, subd. (a)(1), italics added.) 6 People v. Osuna (2014) 225 Cal.App.4th 1020, 1030 -1032 (petn. for review filed May 28, 2014, S218183) ( Osuna ) makes the same point (“The two are not the same.”). As the case is not yet final, we do not rely on it.5 in the context of an underl ying conviction for unlawful g un possession; perhaps the point has seemed self-evident to prosecutors. However, our own research has identified People v. Cooper (1967) 256 Cal.App.2d 500, which c oncluded that an analogous statute imposing a minimum indeterminate term fo r a defendant armed during the commission of an offense (former § 3024, as amended by 2 Stats. 1957, ch. 1617, § 3, pp. 2964-2965) cannot augment the penalty otherwise provid ed for a conviction for being a felon in possession of a firearm, because “an integral part of [former] section 12021 is being armed with a deadly weapon.” ( Cooper , supra , at p. 505, italics added.) Of some probative value on this issue is the somewhat analogous principle (not considered in the briefing) in the context of section 654 that, while applied in a collection of permutations of facts and sentences, un varyingly finds that a felon’s possession of a gun at the instant of committing an offense (if no evidence of antecedent or subsequent possession) is the same act that underlies various gun en hancements, and cannot be the subject of additional punishment. ( People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) Obliquely invoking the inte rpretive principle that we cannot presume a drafter intended absurd results ( In re D.B. (2014) 58 Cal.4th 941, 94 5-946), defendant argues in his reply brief that such an interpretati on would render ineligib le any defendant who “step[ped] near a firearm,” and the drafters could not have intended that “every prisoner convicted of gun possession would be categoric ally excluded from resentencing.” This rhetorical hyperbole does not withstand anal ysis. A conviction for possession of a gun must be based on intentional actual or constructive possession of the gun ( People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 & fn. 3), not merely walking nearby ( id . at p. 1417). Moreover, although we will not ha zard a definitive effort to parse the sheep from the goats (see Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 328), not

every commitment offense for unlawful possession of a gun necessarily involves being armed with the gun, if the gun is not otherw ise available for immediate use in connection6 with its possession, e.g., where it is unde r a defendant’s dominion and control in a location not readily accessible to him at the ti me of its discovery. In any event, the electorate’s concern was with conserving th e public fisc while making sure that dangerous felons did not benefit from any of the amendments and remained sequestered. ( Yearwood , supra , 213 Cal.App.4th at p. 170.) While , as defendant asserts, possession of a gun of itself is not criminal, a felon’s possession of a gun is not a crime that is merely malum prohibitum . As we stated nearly 20 years ago, “public policy generally abhors even momentary possession of guns by convicted felons who, the Legislature has found, are more likely to misuse them.” ( People v. Pepper (1996) 41 Cal.Ap p.4th 1029, 1037- 1038.) Therefore, even if the great majority of commitm ents for unlawful gun possession come within our interpretation of this elig ibility criterion, it would not run afoul of the voters’ intent. 7 II. Circumstances Rendering a Commitment Offense Ineligible Are Not Subject to Pleading and Proof Under the 2012 amendments, a third qualif ying felony conviction is prospectively subject to a minimum indeterminate life sent ence of 25 years only where a prosecutor pleads and proves that the prior convictions we re for serious or violent felonies, and that a commitment offense is either a serious or vi olent felony, or otherw ise comes within one of four qualifying classes of offenses. (§ 667, subd. (e)(2)(C).) On the other hand, the

7 We note the recently decided People v. White (2014) 223 Cal.App. 4th 512, 519, review denied April 30, 2014, S217030 ( White ) also finds unlawful gun possession can be an ineligible commitment offense (via a different route of analysis based on the arguments in that case), and also makes the point that if constructive possession was the basis for the prior conviction, not every conviction for pos session will establish that a defendant was armed (although the defendant at issue had be en carrying the gun and thus indisputably was armed) ( White , at pp. 524-525). People v. Blakely (2014) 225 Cal.App.4th 1042, 1052-1053 (petn. for review filed May 30, 2014, S218914) ( Blakely ) and Osuna , supra , 225 Cal.App.4th at page 1029 are also in acco rd, but we do not rely on them because they are not yet final.7 retrospective relief under section 1170.126 is cond itioned upon an eligible commitment offense, which “ the [ trial ] court shall determine” on “receiving a petition for recall of sentence under this section.” (§ 1170.126, subd. (f), italics added.) In rejecting an interpretation that a defendant becomes pr esumptively entitled to resentencing absent proof of dangerousness bey ond a reasonable doubt, People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279 ( Kaulick ) notes it is determinative that the drafters omitted any requirement for the pleading and proof of dangerousness in th e latter statute. ( Id . at p. 1303, fn. 26; see also id. at pp. 1298-1299, fn. 21 [dictu m; “[b]y its terms” § 1170.126 does not require pleading and proof of ci rcumstances rendering commitment offense ineligible]; accord, White , supra , 223 Cal.App.4th at p. 527.) Therefore, section 1170.126 does not of itself support defendant’s claim that his inelig ibility was subject to pleading and proof in the pr oceedings underlying the comm itment offense of his being armed.

Defendant asserts section 1 170.126 is “subject” to the requirement of pleading and proof in section 667. However, the form er statute cross-re ferences only “the offenses appearing in ” (§ 1170.126, subd. (e)(2), italics added) the four subdivisions of section 667, subdivision (e)(2)(C), and not the text preceding them th at specifies the procedural prerequisite of pleading and proof. ( White , supra , 223 Cal.App.4th at pp. 526-527.) 8 Since we do not find anything ambiguous about the lack of a requirement for pleading and proof of ineligib ility, defendant’s invocation of the “rule of lenity” does not have any relevance. In any event, the lenity rule is limited to situa tions in which intrinsic or extrinsic evidence of the Le gislature’s intent results in reasonable interpretations that

8 Again, Blakely and Osuna make the same points as White with respect to rejecting a requirement of pleading and pr oof, but we do not rely on them because they are not yet final. ( Blakely , supra , 225 Cal.App.4th at pp. 1058-1059 & Osuna , supra , 225 Cal.App.4th at p. 1033; see fn. 7, ante , at p. 6.)8 stand in equipoise. ( People v. McCoy (2012) 208 Cal.App.4th 1333, 1339, fn. 6.) Such circumstance does not exist in this context.

It is also irrelevant that it is for a trier of fact (and not the tria l court) to sustain a
gun enhancement . We are not concerned here with an enhancement but with a criterion for mitigation of sentence. For the same reason, defendant’s reliance on the principle in the line of cases that include Blakely v. Washington (2004) 542 U.S. 296 [159 L. Ed.2d 403] is misplaced. As we noted in People v. Benitez (2005) 127 Cal.App.4th 12 74, 1277-1278, under these cases any fact increasing puni shment beyond the statutory maximum authorized on facts necessarily found in a ju ry’s verdict must itself be the s ubject of a jury finding, but this does not apply to facts rendering a defendant ineligible for mitigation of a punishment that the facts underlying the verdic t otherwise authorize. (Accord, Kaulick , supra , 215 Cal.App.4th at pp. 1304-1305, citing Dillon v. United States (2010) 560 U.S. 817, 828-829 [177 L.Ed.2d 271]; see Blakely , supra , 225 Cal.App.4th at p. 1060 & Osuna , supra , 225 Cal.App.4th at pp. 1039-1040 [both citing Kaulick ].) 9 Finally, defendant suggests it is improper to allow a trial cour t to find a defendant ineligible on the basis of facts in the unde rlying proceeding that th e parties did not have any incentive to litigate at the time, in the absence of a plea ding and proof requirement.

9 Defendant contends for the firs t time in his reply brief that Pepper v. United States (2011) 562 U.S. ___ [179 L.Ed. 2d 196, 214] has declared this exception for mitigation of punishment does not apply to “ ‘plenary rese ntencing proceedings,’ ” a category in which he contends section 1170.126 belongs. He does not give a ny good cause for failing to cite this existing authority in his opening brief. This forfeits plenary consideration of it. ( Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061, fn. 7; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) We accordingly confin e ourselves to observing that Pepper itself twice refers to its appl ication to the situation of a remand for “resentencing after a sentence has been set aside on appeal.” ( Pepper , supra , at p. ___ [179 L. Ed.2d at pp. 213- 214].) That is not the context of a petition to recall a sentence.9 But that ship sailed long ago when our Supreme Court abandoned an approach of considering only the least adjudicated elem ents of a prior conviction and endorsed consideration of the entire r ecord of the conviction. ( People v. Guerrero (1988) 44 Cal.3d 343, 345, 348, 355, overruling People v. Alfaro (1986) 42 Cal.3d 627; accord, People v. Myers (1993) 5 Cal.4th 1193, 1201 [applying rule to prior out-of-state felony convictions].) Indeed, People v. Woodell (1998) 17 Cal.4th 448 ( Woodell ) to a certain extent refutes defendant’s exact contention. It notes that an appellate opinion might not be an entirely accurate reflection of the fact s in the record becaus e some of the facts might not have been of importance to the au thor on issues pertinent to the appeal. However, that “some opinions might not be probative on a given question is [not a] reason to exclude all opinions,” particularly because a de fendant is able to raise issues of material factual omissions or misstat ements in an appellate opinion. ( Woodell , at p. 457; cf. People v. Garcia (2002) 97 Cal.App.4th 847, 854-8 55 [may petition for rehearing on this basis, thus use of memo randum decision not improper]; Cal. Rules of Court, rule 8.500(c)(2) [failure to petition for rehearing on this basis generally forfeits factual challenges in petition for review].) As with plea agreements that become part of the record of conviction, “both parties . . . are expected to pay careful attention . . . . The possibility of future consequen ces, including the app lication of habitual offender statutes , further necessitates [that] the parties ensure the record accurately reflects the factual basis for the plea. Therefore . . . , a defendant w ould normally and reasonably be expected to object to . . . the factual recital if [it] did not accurately reflect th e circumstances of the offense . . . .” ( People v. Sample (2011) 200 Cal.App.4th 1253, 1265, italics added.) In any event, when pressed at oral argument, defendant was unable to identify facts that might be pertinent to being armed that would not otherwise arise in litigating the issue of possession, nor can we discern any.10 III. The Record of the Pr ior Conviction Supports the Finding of Ineligibility We come to the gist of the case. The trial court, apparently on its own motion, cited from our summary of the evidence in defendant’s direct appeal from his conviction for his commitment offense. 10 We had noted that in the course of executing a search warrant on a Wednesday in June 1994 for an apartment, the memb ers of a multiagency task force found defendant ou tside the front door. He ad mitted living there. Among the occupants was defendant’s you ng child. Inside the apartmen t was a loaded gun on a shelf of an entertainment center. An other gun was in an unlocked safe in a bedroom. Police also found a photograph of de fendant (on film manufacture d in March 1994) holding a gun identical in appearance to the gun on the entertainment center shelf. At trial, defendant contended the guns belonged to an other occupant of the apartment (whom he later married), and that he was actually only a weekend visito r in general to her apartment rather than another occupant. ( People v. Elder , supra , C020780, slip opn. at pp. 2-3 & fn. 2.) 11 The present trial court concluded th is established beyond a reasonable doubt that defendant either actually possessed the guns or had at least joint dominion and control over them, under conditions in which the guns were readily available for his use. Therefore, his commitment offense involve d being armed during the commission of unlawful gun possession as a felon, and was not an eligible offense for resentencing. Other than citing to the reporter’s transcri pt of his trial for testimony in support of his defense and for a couple of quotes from closing argument—none of which adds to or detracts from the summary in th e opinion—defendant does not address whether this is a

10 It is not clear whether the trial court adm itted it as an exhibit or took judicial notice. 11 We also note that the opinion later cite s evidence (in refuting a claim of insufficient evidence) that the owners refe rred to defendant as their te nant, who paid the rent and negotiated with them ab out improvements. ( People v. Elder , supra , C020780, slip opn. at pp. 1, 18-19.)11 sufficient basis for a finding of ineligibility. Thus, he does not contend our summary of the evidence in the offi cial transcript of the trial was inaccurate (and in any event our docket does not indicate he eith er petitioned for rehearing or re view on this basis, despite having raised sufficiency of the evidence as an issue on appeal). The facts relevant to the claim of insufficiency of the evidence of possession ar e coextensive with those establishing whether or not he was armed with the guns. In these circumstances, the recitation of these facts in the opinion on de fendant’s direct appeal are probative of the facts underlying the conviction. ( Woodell , supra , 17 Cal.4th at pp. 460, 461.) The trial court thus properly found defendan t ineligible for resentencing.

DISPOSITION We assume the order is appealable, regardless of defendant’s eligibility for resentencing, and affirm it. (Alternately, we treat the appeal as a petition for a writ of habeas corpus and deny the petition.) ( CERTIFIED FOR PUBLICATION )

BUTZ , J.

We concur:

HULL , Acting P. J.

ROBIE , J.1 BUTZ, J., Concurring and Dissenting. “Naturally, I concur in the majority op inion I have prepared for the court” ( People v. Jones (1998) 17 Cal.4th 279, 319 (conc. opn. of Mosk, J.)); “[o]bviously, I concur fully in the majority opinion I have authored” ( Cowan v. Superior Court (1996) 14 Cal.4th 367, 378 (conc. opn. of Chin, J.)). I write separately to explain my disagree ment with the chosen disposition that my colleagues favor. Upon determin ing on the merits that a de fendant is not eligible for relief under section 1170.126, the proper disposition should be to dismiss the matter because denial of the petition accordingly did not affect a ny substantial right of the defendant. Defendant’s Appeal Must be Dismissed Section 1237 authorizes an appeal from any order made after judgment “affecting the substantial rights of the party.” (§ 1237 , subd. (b).) Therefore, an untimely motion to recall a sentence under the general provision (§ 1170, subd. (d)(1)) is not appealable because a trial court has no jurisdiction to en tertain such a motion in the first place, and its denial of the motion accordin gly could not affect a substantial right of the defendant. ( People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) Similarly, a petition for a writ of coram nobis that is facially insufficient does not vest a trial court with jurisdiction to grant relief; the denial of such a deficient petition as a result cannot affect the petitioner’s substantial rights, and the or der is not appealable. ( People v. Thornton (1965) 233 Cal.App.2d 1, 2.) As we have concluded above, section 11 70.126 confers the right to file a recall petition only on those who are not presently serving an indeterminate term of life imprisonment for a commitment conviction during the commiss ion of which they were2 armed with a gun. (§§ 1170.1 26, subd. (e)(2), 667, subd. (e )(2)(C)(iii).) The trial court does not have jurisdiction othe rwise to entertain a petition. 1 Whether or not we summarily dismiss an appeal at the outset without an opinion, however, has no bearing on ou r disposition of an appeal after taking its merits under consideration. As in the analogous circum stance of determining whether a claim of instructional error raised initia lly on appeal affected the s ubstantial rights of a defendant (§ 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [must initially determine if instructional error prejudicial, which then allows consideration of merits and reversal of conviction]), we have at least the appellate jurisdiction to ascert ain whether the trial court properly denied a recall petition unde r section 1170.126 in order to determine whether the denial affected a defendant’s substantial rights. Another analogous circumstance arises where either a trial cour t has improvidently issued a certificate of probable cause for a noncognizable issue or a defendant has appealed what is in fact an issue requiring a certificate of probable cause; an appellate court addresses the merits of whether the issue requires a certificate, and th en dismisses the appeal rather than affirms the judgment. ( People v. Mendez (1999) 19 Cal.4th 1084, 1099-1100 ( Mendez ); People v. Panizzon (1996) 13 Cal.4th 68, 89 [ both dismissing appeal for failure to co mply with

1 There is presently a debate whether th e accurate determination that a petition is facially insufficient under section 1170 .126 is appealable and therefore subject to summary dismissal without consideration of the merits of the appeal ( People v. Wortham (2013) 220 Cal.App.4th 1018 [appealab le, but affirms because comm itment offense is serious felony], review granted Jan. 15, 2014, S214844; People v. Leggett (2013) 219 Cal.App.4th 846 [nonappe alable where petition on f ace demonstrates commitment offense is for serious felony; appeal dismisse d], review granted Dec. 18, 2013, S214264; Teal v. Superior Court (2013) 217 Cal.App.4th 308 [non appealable; treating appeal as petition for writ of habeas corpus, denying re lief after determining that prior conviction rendered defendant ineligible under § 1 170.126, subd. (e)(3)], review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941 [appealable, but affirms because commitment offense was serious fe lony], review gran ted July 31, 2013, S212017).3 § 1237.5 after determining that challenge to negotiated sentence is in fact a challenge to the plea]; People v Hernandez (1992) 6 Cal.App.4th 1355, 1361 [dismissal of appeal after determining on merits that trial court erroneously issued certificate].) Yet in the context of section 1170.126, th e “crowdsourced” approach to this issue of substantial rights/appealability in the publ ished, formerly publis hed, and nonpublished cases is in accordance with that my colleagues embrace: the assumption that the denial of a petition is appealable regardless of a de fendant’s eligibility, or the declaration that the appeal should be de emed a petition for a writ of habeas corpus. At the risk of taking on the role of a Victorian governess harrumphi ng over the enforcem ent of standards, I must take issue with this disr egard of the fundamental principl es of appellate jurisdiction. Driving this approach seems to be a c oncern that defendants are entitled to an accurate determination of their eligibility. But declaring the denial of a petition after review of the merits to be a nonappealable order subject to dismissal does not preclude relief for such defendants. Under the celebra ted jurisdictional truism, an appellate court always has jurisdiction to determine its appellate jurisdiction. ( Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 464 [cited in People v. Zarazua (2009) 179 Cal.App.4th 1054, 1062]; Abelleira v. Distri ct Court of Appeal (1941) 17 Cal.2d 28 0, 302.) As this principle is explained, “[A] tribunal has the duty , and therefore the . . . power (jurisdiction), to decide in the first instance whether it ha s jurisdiction of the subject matter . . . . This process may involve the determination of juri sdictional questions of law .” (2 Witkin, Cal. Procedur e (5th ed. 2008) Juri sdiction, § 339, p. 963, italics added (Witkin).) Thus, except in th e presumably narrow class of cases in which a trial court accurately determines th at a petition on its face renders a defendant ineligible, we will always have jurisdiction to consider whether the law and facts properly support the denial of the petition.4 Nor is it improper to issue an opinion af ter concluding we do not have jurisdiction over the appeal. While “the [appellate] court should always dismiss an appeal from a nonappealable order, on its own motion , without determining the merits, for lack of appellate jurisdiction . . . it does not always do so. Sometimes the court first determines the merits in an advisory opinion [ as ] a precedent, then dismisses the appeal .” (9 Witkin,

supra , Appeal, § 87, p. 147, italics added; id . at § 345, p. 396 [as matter of policy , it has become an established practi ce to offer advisory opinion on important matter “where the appeal itself was improperly taken and is di smissed, but the reviewing court, lacking appellate jurisdiction to decide the merits of the particular pr oceeding, nevertheless renders what is in effe ct an advisory opinion to serve as a precedent ” (italics added)].)

Both of the crowdsourced so lutions have been severely criticized in the past. In the context of section 1237.5, the Supreme Court has condemned as lax the practice of entertaining appeals without cer tificates to further “judicial economy” in order to forestall petitions for writs of habeas corp us, declaring that this does not further judicial economy of the appellate system as a whole , which as a result is asked to review nonappealable orders and judgments. ( Mendez , supra , 19 Cal.4th at pp. 1097-1 098.) And Witkin gives a lengthy criticism of courts that “assume” jurisdiction without re solving the issue. (9 Witkin, supra , Appeal, § 87, p. 148.) As for treati ng the appeal as a writ petition, this runs afoul of the risk of creating the same dy sfunction in the system as a whole, because

every litigant with a nonappealable order can ma ke such a request. For this reason, a court should undertake this fiction only under a compelling showing of exceptional circumstances. (9 Witkin, supra , § 130, pp. 200-202 [to engage in the fiction “ ‘would obliterate the bright line and encourage parties to [ appeal knowingly ] from nonappealable orders ’ ” (quoting Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App. 4th 1450, 1456, italics added)]; accord, San Joaquin County Dept. of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 300- 301 [noting need for unusual circumstances, and a need5 to provide guidance on issue of general impor tance; “ ‘Routine granting of requests to treat improper appeals as writs where there are no exigent reasons for doing so would only encourage parties to burde n appellate courts’ ”].) Our opinion having resolved adversely to defendant the statutory interpretation issue that possession of a gun includes being arme d with a gun, and the legal issue of the proper scope of the record of conviction, de fendant was ineligible for resentencing on the facts present in his record of conviction, and the denial of his petiti on could not as a result have affected his substantial rights. As in People v. Turrin , supra , 176 Cal.App.4th 1200, our selection of disposi tion here should be dismissal of the appeal. ( CERTIFIED FOR PUBLICATION )

BUTZ , J.