Filed 3/21/16 P. v. Jones CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRILL DION JONES,

Defendant and Appellant.

 B264689

 (Los Angeles County

 Super. Ct. No. NA024359)

APPEAL from a judgment of the Superior Court of Los Angeles County. William 

C. 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, Victoria B. Wilson, 

Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for 

Plaintiff and Respondent.

_________________________________
2

Terrill Dion Jones appeals the denial of his Proposition 36 (Three Strikes Reform 

Act of 2012) petition to recall his third strike indeterminate life sentence of 25 years to 

life in prison. (Pen. Code, § 1170.126.)

1 Appellant contends the trial court erred in 

determining that appellant was ineligible for recall and resentencing under section 

1170.126 based on the court’s factual finding that appellant was armed during the 

commission of the crime of possession of a firearm by a felon.

2 We disagree and affirm 

the denial of appellant’s petition to recall his sentence and resentence him as a second 

strike offender.

FACTUAL AND PROCEDURAL BACKGROUND

On April 30, 1995, appellant attempted to enter a nightclub in Long Beach, but 

was stopped at the door by two security guards. Appellant left the nightclub, but pulled 

up three or four minutes later in a car and motioned for the security guards to leave their 

post to talk with him. Another security guard approached appellant’s vehicle and saw the 

handle of a handgun under a towel on the passenger seat within appellant’s reach. 

Appellant was detained, and police recovered a loaded .38-caliber revolver from the front 

passenger seat of appellant’s car.

In September 1995, a jury convicted appellant of possession of a firearm by a 

felon. (§ 12021, subd. (a)(1).) The jury also found true allegations that appellant had 

suffered three prior convictions under the “Three Strikes” law (§§ 667, subds. (b)–(i), 

1170.12, subds. (a)–(d)) and had served one prior prison term (§ 667.5, subd. (b)). The 

trial court sentenced appellant to a third-strike term of 25 years to life in prison pursuant 

to the Three Strikes law.3

 

1 Undesignated statutory references are to the Penal Code.

2 Former section 12021, subdivision (a)(1), now codified as section 29800, 

subdivision (a)(1).

3 On December 10, 1996, this court affirmed appellant’s conviction and sentence 

in a nonpublished opinion, B099211.
3

On February 15, 2013, appellant filed a petition in the trial court for recall of his 

sentence and for resentencing as a second strike offender under Proposition 36. 

Following a hearing on appellant’s eligibility for relief under section 1170.126, the trial 

court denied the petition on the ground that “during the commission of the current offense 

[appellant] was armed with a firearm.” (§§ 667, subd. (c)(2)(C)(iii), 1170.12, subd. 

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

DISCUSSION

Appellant Is Ineligible for Resentencing Because He Was Armed 

During the Commission of the Offense of Possession of a Firearm by a 

Felon 

A. The Three Strikes Reform Act of 2012

On November 6, 2012, California voters passed Proposition 36, the Three Strikes 

Reform Act of 2012 (the Act), which amended the Three Strikes law with respect to 

defendants whose current conviction (the offense for which the third-strike sentence was

imposed) is for a felony that is neither serious nor violent. (People v. Johnson (2015) 61 

Cal.4th 674, 679, 681 (Johnson); People v. Burnes (2015) 242 Cal.App.4th 1452, 1457–

1458; People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168.) The Act amended 

sections 667 and 1170.12, and added section 1170.126, subdivision (b), authorizing a 

prisoner serving a third-strike indeterminate life sentence to petition the trial court for 

recall of the sentence and for resentencing as a second-strike offender. (Johnson, at pp. 

679–680.)

Not every third-strike offender whose current offense is neither serious nor violent 

qualifies for resentencing under the Act, however. The Act disqualifies any inmate 

whose current offense was any of several specified crimes or if “[d]uring the commission 

of the current offense,” the defendant was armed with a firearm or deadly weapon. 

(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii) (hereinafter “subdivision (iii)”); 

Johnson, supra, 61 Cal.4th at p. 682; People v. Osuna (2014) 225 Cal.App.4th 1020, 

1028–1029 (Osuna); People v. Brimmer (2014) 230 Cal.App.4th 782, 791–793.)
4

B. Appellant Was “Armed with a Firearm” During the Commission of 

the Offense, and Is Therefore Ineligible for Relief Under the Act

Appellant contends that according to the plain language of the Act, the ineligibility

factors listed in subdivision (iii) must be construed as in addition to, and not simply 

coextensive with, the elements of the current offense. He asserts that both the statutory 

construction and a grammatical analysis of the statute support this interpretation, and 

asserts that because the Act does not disqualify inmates serving sentences for mere gun 

possession, a “simple violation of Penal Code section 12021 is not covered.” He further 

contends that the reference to being armed with a firearm “during the commission of the 

current offense” only makes sense if there is another offense to which the arming 

attaches, or is “tethered,” and the arming must have a “facilitative nexus” to that

underlying offense. He concludes that an interpretation of the statute that allows a person 

to be considered armed with a firearm while committing the crime of possession of the 

same firearm would render the “during the commission” language meaningless. We 

disagree.

The basic flaw in appellant’s argument is his explicit assumption that the crime of 

possession of a firearm “always involves arming.” Not so. While being armed with a 

firearm invariably involves possession, the reverse is not always true. Former section 

12021 “made it a felony for a person previously convicted of a felony to own or have in 

his or her possession or under his or her custody or control, any firearm. The elements of 

this offense are conviction of a felony and ownership or knowing possession, custody, or 

control of a firearm.” (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052 (Blakely);

Osuna, supra, 225 Cal.App.4th at p. 1029; People v. Snyder (1982) 32 Cal.3d 590, 592.) 

“‘A defendant possesses a weapon when it is under his dominion and control. [Citation.] 

A defendant has actual possession when the weapon is in his immediate possession or 

control. He has constructive possession when the weapon, while not in his actual 

possession, is nonetheless under his dominion and control, either directly or through 

others. [Citations.]’ [Citation.] ‘Implicitly, the crime is committed the instant the felon 

in any way has a firearm within his control.’ [Citation.]” (Osuna, supra, at pp. 1029–
5

1030; see also Henderson v. United States (2015) ___ U.S. ___, ___ [135 S.Ct. 1780, 

1784] [actual possession of a firearm exists when a person has direct physical control 

over the firearm, whereas constructive possession occurs when a person still has the 

power and intent to exercise control over the firearm, while lacking such physical 

custody].)

“‘Armed with a firearm’ has been statutorily defined and judicially construed to 

mean having a firearm available for use, either offensively or defensively. (E.g., 

§ 1203.06, subd. (b)(3); Health & Saf. Code, § 11370.1, subd. (a); People v. Bland (1995) 

10 Cal.4th 991, 997 (Bland) [construing § 12022].)” (Osuna, supra, 225 Cal.App.4th at 

p. 1029; People v. Pitto (2008) 43 Cal.4th 228, 236; People v. Mendival (1992) 2 

Cal.App.4th 562, 574 [“It is the availability—the ready access—of the weapon that 

constitutes arming”].) However, “[a] firearm can be under a person’s dominion and 

control without it being available for use.” (Osuna, at p. 1030.) Accordingly, because 

possessing a firearm does not necessarily constitute being armed with a firearm, a 

defendant whose current offense is mere possession of a firearm by a felon is not 

automatically ineligible for resentencing by virtue of that conviction. (Blakely, supra, 

225 Cal.App.4th at p. 1052; People v. Elder (2014) 227 Cal.App.4th 1308, 1313 (Elder); 

People v. White (2014) 223 Cal.App.4th 512, 524 (White).)

Relying on the Supreme Court’s discussion of arming in the context of section 

12022,

4 appellant asserts that Bland “explained that arming is found if the weapon is 

available for use at any time, ‘during the commission of the offense.’” (See Bland, 

supra, 10 Cal.4th at pp. 999, 1001–1003; see also Osuna, supra, 225 Cal.App.4th at 

p. 1031.) Thus, according to appellant, the definition of arming includes an underlying 

offense beyond the substantive offense of possession alone.

 

4 Section 12022 provides for the imposition of an additional and consecutive term 

for anyone armed with a firearm “in the commission of a felony,” unless arming is an 

element of the offense. (Bland, supra, 10 Cal.4th at p. 995.)
6

As other courts have observed in responding to the same argument, however, 

appellant “would be correct if we were concerned with imposing 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.” 

(People v. Hicks (2014) 231 Cal.App.4th 275, 283 (Hicks); Osuna, supra, 225 

Cal.App.4th at p. 1030.) The error in appellant’s 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).” (Elder, supra, 227 Cal.App.4th at p. 1313; see 

also Osuna, at pp. 1031–1032.)

Appellant criticizes Osuna and cases following it for drawing a distinction 

between the phrases “during the commission of the current offense,” used in subdivision 

(iii), and “in the commission of a felony” as interpreted by the court in Bland in the 

context of section 12022. As Osuna explained: “‘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.” (Osuna, supra, 

225 Cal.App.4th at p. 1032.) According to appellant, this is a distinction without a 

difference because the two words—“during” and “in”—are frequently used 

interchangeably. But the California Supreme Court has explained that the statutory 

phrase “in the commission of” used in section 12022 requires that “‘the “arming” take 

place during the underlying crime and that it have some “facilitative nexus” to that

offense.’” (Bland, supra, 10 Cal.4th at p. 1002, second italics added; In re Tameka C.

(2000) 22 Cal.4th 190, 197–198 [“Similarly, we have concluded that the phrase ‘in the 

commission of’ a felony, as used in section 12022.5, means during and in furtherance of 

the felony,” italics added].) Thus, “[t]o trigger the enhancement, the defendant need only 

have a gun ‘available for use to further the commission of the underlying felony.’ 

([Bland,] at p. 999.)” (People v. Becker (2000) 83 Cal.App.4th 294, 297, italics added.)
7

As the courts in Osuna, Elder, Hicks, and Brimmer held, we also conclude that 

“armed with a firearm” “during the commission of the current offense” does not require a 

facilitative nexus between arming and the underlying offense. Rather, ineligibility for 

relief under the Act occurs when the arming is contemporaneous with the current offense, 

but does not necessarily further or aid in the commission of that offense. “Since the Act 

uses the phrase ‘[d]uring the commission of the current offense,’ and not in the 

commission of the current offense ([subdivision (iii)]), and since at issue is not the 

imposition of additional punishment but rather eligibility for reduced punishment, we 

conclude the literal language of the Act 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; Elder, supra, 227 Cal.App.4th at pp. 1312–1313; 

Hicks, supra, 231 Cal.App.4th at p. 284; Brimmer, supra, 230 Cal.App.4th at p. 799.)

In the present case, the evidence adduced at trial established that appellant had a 

loaded firearm next to him on the passenger seat of his vehicle. Appellant was thus in 

actual, not constructive, possession of a firearm. Because the weapon was available for 

use at any time “during the commission of the offense,” appellant was clearly “armed,” 

and is ineligible for relief under the Act. (Bland, supra, 10 Cal.4th at pp. 999, 1001–

1003; see also Osuna, supra, 225 Cal.App.4th at p. 1031.)

Appellant acknowledges that appellate courts have consistently rejected his 

argument that the factors listed in subdivision (iii) must be tethered to another offense, 

and one cannot be “armed” while committing the crime of possession of the same 

weapon. He contends, however, that these cases were wrongly decided, and invites us to 

hold that “arming” within the meaning of subdivision (iii) requires both that the firearm 

be available and have a facilitative nexus to the crime upon which the defendant has been 

sentenced. We join the consensus among California courts that the ineligibility factor of 

being armed with a firearm during the commission of the current offense applies 

whenever the record shows the defendant was in actual physical possession of the 

firearm, and therefore decline appellant’s invitation.
8

Characterizing section 12021 as a “low-level felony,” appellant further argues that 

it is inconsistent with the purpose of the Act to construe subdivision (iii) to deny relief to

anyone who had access to a weapon during the commission of a nonviolent crime without 

requiring that such access be for the purpose of furthering another criminal act. We 

disagree. “In interpreting a voter initiative like [the Act], we apply the same principles 

that govern statutory construction. [Citation.]” (People v. Rizo (2000) 22 Cal.4th 681, 

685.) “‘“The fundamental purpose of statutory construction is to ascertain the intent of 

the lawmakers so as to effectuate the purpose of the law.”’ [Citation.] We begin with the 

language of the statute, to which we give its ordinary meaning and construe in the context 

of the statutory scheme. If the language is ambiguous, we look to other indicia of voter 

intent. [Citations.]” (Johnson, supra, 61 Cal.4th at p. 682; Blakely, supra, 225 

Cal.App.4th at p. 1053.)

As set forth above, we find that the Act explicitly disqualifies any inmate from 

resentencing who was armed with a firearm during the unlawful possession of that 

firearm. (Osuna, supra, 225 Cal.App.4th at p. 1032.) Moreover, our reading of the Act 

comports with the voters’ intent. The intent underlying the Act is “to provide 

resentencing relief to low-risk, nonviolent inmates serving life sentences for petty crimes, 

such as shoplifting and simple drug possession. (Voter Information Guide, [Gen. Elec. 

(Nov. 6, 2012)] text of Prop. 36, § 1, subds. (3), (4) & (5), p. 105.)” (White, supra, 223 

Cal.App.4th at p. 526.) “It is clear the electorate’s intent was not to throw open the 

prison doors to all third strike offenders whose current convictions were not for serious or 

violent felonies, but only to those who were perceived as nondangerous or posing little or 

no risk to the public. A felon who has been convicted of two or more serious and/or 

violent felonies in the past, and most recently had a firearm readily available for use, 

simply does not pose little or no risk to the public.” (Osuna, supra, 225 Cal.App.4th at 

p. 1038.) As our Supreme Court has recognized, “‘a firearm that is available for use as a 

weapon creates the very real danger it will be used.’ [Citation.]” (Bland, supra, 10 

Cal.4th at p. 997; Brimmer, supra, 230 Cal.App.4th at p. 799.) In light of the fact that 

appellant was armed with a firearm during the commission of his offense, he does not fall 
9

into the category of a low-risk, nonviolent offender, and his crime cannot be deemed a 

petty or minor crime for purposes of resentencing under the Act.

The trial court properly determined that appellant is ineligible for recall and 

resentencing under Proposition 36.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, J.

We concur:

ROTHSCHILD, P. J.

JOHNSON, J.