Filed 10/3/16 P. v. Carter CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CALVIN CAR TER , Defendant and Appellant. B267570

(Los Angeles County Super. Ct. No. BA134740 )

APPEAL from an order of the Superior Cou rt of Los Angeles County, William Ryan , Judge. Affirmed.

Richard B

. Lennon , under appointment by the Court of Appeal, for Defendant and Appellant.

Kama la D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Atto rney General, Noah P. Hill and William

H. Shin

, Deputy Attorney s General, for Plaintiff and Respondent.

_______________________________2

Appellant Calvin Carter was convicted in 1996 of being a felon in possession of a

fi rearm (Pen. Code, § 12021, subd. (a)(1) )

. Based on his prior convictions, he was sentenced to a term of twenty

- fiv e years to li fe. In January 2013, Carter petitioned for recall of his sentence; the trial court issued an order to show cause but denied the petition on October 5, 2015. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Carter was convicted after a jury trial of being a felon i n possession of a firearm

. ( Pen. Code, § 12021(a)(1). ) 1 During a chase by deputy sheriffs, the sheriffs observed Carter place a gun on a rooftop; after the arrest the gun was retrieved and determined to

be loaded. Th e court found true four prior qua lifying strike provisions (Pen. Code, § § 667, 1170.12) and sentenced Carter to a term of twenty

- five years to life. In 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of 2012 (Prop. 36), which, amo ng other modifications of the Three Strikes Law, added section 1170.126 to the Penal Code to permit petitions for recall of sentences, and resentencing by individuals who would not have been subject to indeterminate life sentences had they been sentenced u nder Proposition 36.

O n January 15, 2013, Carter filed a petition for recall of his sentence pursuant to

section 1170.126. The court issued an order to show cause on March 7, 2013. The People opposed the petition, asserting that Carter had been armed duri ng the commission of the offense and was, accordingly, ineligible for resentencing; the People further asserted that

his record al so made him unsuitable for this relief. After additional briefing, the trial court heard the matter on October 5, 2015, found Carter statutorily ineligible for recall and resentencing, and denied the petition. Carter appealed.

1 That statute ha s been renumbered as Penal Code sect ion 29800, subd ivision (a). All further statutory references are to the Penal Code.3 DISCUSSION On appeal, Carter argues that former section 12021 subdivision (a)(1) is not a crime enumerated in Prop osition 36 as being excluded from eligib ility for resentencing, and that, under the circumstances of his convi ction, 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 “impo sed 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 fire arm 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, b ut
must be found in addition to the offense itself. As a result, he argues his conviction, for

the possession of a firearm, does not fall within the exclusion. The appellate courts have uniformly rejected this argument, a fact Carter acknowledges. Althou gh he urges us to conclude t hose cases we re wrongly decided, we disagree with his analysis.

In People v. Osuna (2014 ) 225 Cal.App.4th 1020 ( Osuna )
, the court noted that the phrase ‘armed with a firearm’ “has been statutorily defined and judicially construe d to mean having a firearm available for use, either offensively or defensively.” ( Id . at

p. 1029.) The evidence in the defendant’ s case established that he was ‘armed with a

firearm’ when he illegally possessed the firearm. ( Id . at p. 1030.) The defen dant did not dispute this. He claimed, however, as does Carter
, that in order to be ineligible for recall of sentence under Proposition 36 “there must be an underlying felony to which the firearm possession is ‘tethered’ or to which it has some ‘facilitat ive nexus.’ He [argued]4

one cannot be armed with a firearm during the commission of possession of the same
firearm.” ( Ibid .) The court explained this analysis would be appropriate if the case “were concerned with imposition of an arming enhancement

— an ad ditional term of imprisonment added to the base term, for which a defendant cannot be punished until and unless convicted of

a related substantive offense. [Citations.]” ( Osuna, supra, 225 Cal.App.4th at p. 1030.) An arming enhancement under section 120 22, subdivision (a)(1), may be imposed where
the defendant is armed “ ‘in the commission of ’ a felony.” ( Osuna, supra, 225 Cal.App.4th at p. 1031.) Such an enhancement “ ‘requires both that the “arming” take place during the underlying crime and that it h ave some “facilitative nexus” to that

offense.’ ” ( Ibid .) That is, that the defendant “have a firearm ‘available for use to further the commission of the underlying felony. ’ [Citation.]” ( Ibid .) However, “[h]aving a gun available does not further or aid in the commission of the crime of possession of a firearm by a felon. Thus, a defendant convicted of violating section 12021 does not, regardless of the facts of the offense, risk imposition of additional punishment pursuant to section 12022, because the re is no ‘facilitative nexu s’ between the arming and the possession. However, unlike section 12022, which requ ires
that a defendant be armed ‘ in the commission of ’ a felony for additional punishment to be imposed (italics added), [Proposition 36] disquali fies 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 po int in the course of.’ (Webster’ s 3d New Internat. Dict. (1986) p. 703.) In other words, it requires a temporal nexus between the arming and the underlying felony, not a facilitative one. The two are not the same. [Citation.]” ( Osuna,

supra, 225 Cal.App.4th at p. 1032.) Based on this analysis, the court concluded the “defendant was armed with a

firearm during his possession of the gun, but not ‘in the commission’ of his crime of possession [of a firearm by a felon]. There was no facilitative nexus; his having the firearm available for use did not further his illegal possession of it. There was, however,5

a temporal nexus. Since [Proposition 36] 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, .

. . the literal language of [Proposition 36] disqualifies an inmate from resent encing if he or she was armed with a firearm during the unlawful possession of that firearm.” ( Osuna, supra, 225 Cal.App.4th at p. 1032; accord, People v. Brimmer (2014) 230 Cal.App.4th 782, 799 ( Brimmer ) ; see also People v. Berry (2015) 235 Cal.App.4th 1 417, 1426.) Appellate courts in the firearm possession cases have uniformly concluded the ineligibility factor applies whenever the record shows the defendant was in actual physical possession of the firearm, and thus armed. (See Brimmer, supra, 230

Cal.A pp.4th at p. 797; Osuna, supra, 225 Cal.App.4th at p. 1030; People v. White (2014) 223 Cal.App.4th 512, 525.) They reason that a firearm possession offense that amounts to arming is not a minor non

- violent offense for purposes of Proposition 36. (See

Bri mmer, supra, 230 Cal.App.4th at p. 799.)

Carter ’s case is not distinguishable. As in Osuna , Carter had the weapon available for use; the weapon he was observed with imm ediately prior to his arrest was loaded and within his po ssession

. The trial court di d not err.

DISPOSITION The order denying the petition is affirmed.

ZELON, Acting P. J.

We concur:

SEGAL, J. GARNETT, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.