Filed 10/28/15 P. v. Napoleon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LORENZO LYNN NAPOLEON,

Defendant and Appellant.

F069193

(Super. Ct. No. 1057573)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Marie Sovey 

Silveira, Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-

 

* Before Levy, Acting P.J., Kane, J. and Smith, J.
2.

INTRODUCTION

The Three Strikes Reform Act of 2012 (Proposition 36) permits third strike 

offenders serving indeterminate life sentences for crimes that are not serious or violent 

felonies to petition for resentencing. (Pen. Code,

1 § 1170.126 et seq.) If a petitioning 

offender satisfies the statute’s eligibility criteria, he is resentenced as a second strike 

offender “unless the court, in its discretion, determines that resentencing the petitioner 

would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)

Following the enactment of Proposition 36, defendant Lorenzo Lynn Napoleon,

filed a petition for resentencing. The superior court, however, determined defendant was 

statutorily ineligible for resentencing and denied the petition. On appeal, defendant 

contends (1) his conviction for felon in possession of a firearm did not disqualify him 

from resentencing, as he was not armed with the firearm during the commission of the 

offense, (2) a conviction for felon in possession of a firearm cannot disqualify an inmate 

from resentencing in the absence of an underlying felony to which the firearm possession 

is tethered, and (3) the People failed to plead and prove defendant’s felon in possession of 

a firearm charge at resentencing. We reject these arguments and affirm the order.

FACTS2

On May 6, 2003, a Modesto police officer attempted to initiate a traffic stop on 

defendant for failing to yield at a red light. Defendant refused to pull his vehicle over, 

however, and fled until crashing his car into a tree. Defendant then attempted to escape 

on foot, but was apprehended shortly thereafter. Police recovered a sawed-off, 12-gauge 

shotgun lying on the passenger’s seat of defendant’s vehicle. 

 

1 Unless otherwise indicated, all statutory references are to the Penal Code.

2 Facts are as taken from the Stanislaus County District Attorney’s filed opposition 

to the petition for resentencing. These facts are not disputed by defendant.
3.

Following his arrest, defendant was convicted of felon in possession of a firearm 

and possession of a dangerous weapon. Defendant was sentenced as a third strike 

offender to a term of 25 years to life in prison. 

On May 17, 2013, defendant filed a petition for recall of sentence under 

Proposition 36. Following a hearing on the matter, the superior court dismissed 

defendant’s petition, finding the fact defendant was armed with a firearm during the 

commission of his current-offense conviction rendered him ineligible for resentencing. 

This appeal followed.

DISCUSSION

I. Defendant was armed with a firearm during the commission of his currentconviction offense.

Under Proposition 36, an inmate is not eligible for resentencing if the inmate’s 

current conviction 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).) Among the crimes covered under those 

clauses are any offenses where the defendant, during the commission of the offense, 

“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).)

On appeal, defendant argues his current-offense conviction for felon in possession 

of a firearm does not render him ineligible for resentencing, as that offense is imposed for 

the mere possession of a firearm, rather than for being armed with a firearm. We 

disagree. 

In People v. Osuna (2014) 225 Cal.App.4th 1020, 1029-1030, we noted that a 

conviction for felon in possession of a firearm would not render an inmate ineligible for 

resentencing unless the facts of the case establish that the defendant had the firearm 
4.

available for offensive or defensive use. Here, however, the facts of defendant’s 

conviction establish he not only possessed the shotgun, but had it placed within arm’s 

reach on the passenger seat while he attempted to flee from the police. Accordingly, it is 

clear that defendant had a firearm available for offensive or defensive use during the 

commission of his current offense, and defendant is therefore ineligible for resentencing. 

Defendant’s argument that he merely possessed the firearm, and was not armed with it, is 

without merit.

II. A conviction for felon in possession of a firearm need not be tethered to an 

underlying felony to disqualify an inmate from resentencing.

Next, defendant’s brief on appeal suggests that, for the purposes of 

disqualification under Proposition 36, there must be an additional, underlying felony to 

which the offense of firearm possession is tethered. As we noted in People v. Osuna, 

supra, 225 Cal.App.4th at page 1030, “[d]efendant would be correct if we were 

concerned with imposition of an arming enhancement” rather than the offense of felon in 

possession of a firearm. However, when, as here, the issue is the offense of felon in 

possession of a firearm, “the literal language of [Proposition 36] disqualifies an inmate 

from resentencing if he or she was armed with a firearm during the unlawful possession 

of that firearm.” (Id. at p. 1032.)

Accordingly, there is no need for a separate underlying felony if the record 

demonstrates that the defendant was armed with a firearm during the unlawful possession 

of that firearm. As we have concluded that is the case here, we reject defendant’s claim 

of error. 

III. The People were not required to plead and prove defendant’s conviction.

Defendant also suggests that the People were required to plead and prove his 

disqualifying conviction for felon in possession of a firearm. We have explicitly held, 

however, that for resentencing purposes, “a disqualifying factor ... need not be pled and 

proved in the sense of being specifically alleged in an accusatory pleading and expressly 
5.

either found by the trier of fact at trial of the current offense or admitted by the 

defendant.” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1058.)

DISPOSITION

The order is affirmed.