Filed 10/3/16 P. v. Carter CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CALVIN CARTER,

Defendant and Appellant.

 B267570

 (Los Angeles County

 Super. Ct. No. BA134740)

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

Ryan, Judge. Affirmed.

Richard B. Lennon, under appointment 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 and William 

H. Shin, Deputy Attorneys General, for Plaintiff and Respondent. 

_______________________________
2

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

firearm (Pen. Code, § 12021, subd. (a)(1)). Based on his prior convictions, he was 

sentenced to a term of twenty-five years to life. 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 in 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. The court found true four prior qualifying 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, among 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 under Proposition 36.

On 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 during the commission of the 

offense and was, accordingly, ineligible for resentencing; the People further asserted that 

his record also 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 has been renumbered as Penal Code section 29800, subdivision (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 Proposition 36 as being excluded from eligibility for resentencing, 

and that, under the circumstances of his conviction, 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 “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).) 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 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).) Acknowledging this 

provision, Carter argues that these factors may not be part of the offense in question, but 

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. Although he urges us to conclude those cases were 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 construed 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 defendant 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 ‘facilitative nexus.’ He [argued] 
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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 additional 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 12022, 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 have 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 there is no ‘facilitative nexus’

between the arming and the possession. However, unlike section 12022, which requires 

that a defendant be armed ‘in the commission of’ a felony for additional punishment to be 

imposed (italics added), [Proposition 36] disqualifies 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.’ (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, 
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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 resentencing 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 1417, 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.App.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 

Brimmer, 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 immediately prior to his arrest was loaded and 

within his possession. The trial court did 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.