1 Filed 10/30/14 Johnson v. Super. Ct. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

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TYRONE DANIEL JOHNSON,
Petitioner,

v.
THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent;
THE PEOPLE, Real Party in Interest. C073091 (Super. Ct. Nos. 97F06816 & 12HC00585)

Convicted of being a convicted felon in possession of a firearm and sentenced under the “Three Strikes” law 15 years ago, petitioner Tyro ne Daniel Johnson (defendant) recently filed a petition for resent encing under the Three Strikes Reform Act of 2012. The trial court denied the petition because defendant was armed with a firearm when he possessed the firearm under the facts of this case.2 Treating defendant’s appeal from the denial of his petition for resentencing as a petition for writ of mandate, we conclude the tria l court did not err. We hold that: (1) we need not decide whether the de nial of a petition for resentenci ng is appealable because we treat the purported appeal as a petition for writ of mandate; (2) defendant’s petition for resentencing was properly denied, even thou gh defendant’s felon-in-possession offense is not listed as one of the dis qualifying offenses, because he was armed when he committed the offense, which is a disqualifying circumst ance; and (3) defendant was not entitled to a hearing on his petition for resentenci ng at the initial screening phase. We therefore deny the petition for writ of mandate. BACKGROUND In 1999, defendant was convicted by jury of being a convicted felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a). (Hereafter, unspecified code citations are to the Pena l Code.) Because he had two prior robbery convictions, defendant was sentenced to an in determinate term of 25 years to life under the Three Strikes law. In November 2012, California voters passed Proposition 36, the Three Strikes Reform Act of 2012, which we refer to in this opinion as the Three Strikes Reform Act or, simply, the Act. The Act amended s ections 667 and 1170.1 2 (relating to Three Strikes sentencing) and added section 1170. 126 (relating to resentencing of defendants previously sentenced under the Three Strikes law). Among other things, the Act allows a defendant serving an indeterminate life term under the Three Strikes law to file a petition for resentencing. (§ 1170.126, subd. (b).) This proceeding deals exclusively with the resentencing provisions of the Three Strikes Reform Act, fou nd in section 1170.126. A defendant is not eligible for resentencing under the Act if the defendant’s current convi ction (here, the felon-inpossession conviction) involved any of th e circumstances listed in section 667, subdivision (e)(2)(C)(i)-(iii) or section 1170.12, subdivision (c)(2)(C)(i)-(iii).3 (§ 1170.126, subd. (e )(2).) The circumstance in those lists that is relevant to this case is that “[d]uring the commission of the current o ffense, the defendant . . . was armed with a firearm . . . .” (§§ 667, subd. (e )(2)(C)(iii); 1170.12, subd. (c)(2)(C)(iii).) Section 1170.126 provides fo r three distinct and separa te phases after a defendant petitions for resentencing. First, the court conducts an initial review of the petition and the defendant’s criminal records to dete rmine whether the defe ndant satisfies the minimum requirements for resentencing unde r section 1170.126, subdivision (e) (the initial screening). Second, if the petiti on demonstrates a pr ima facie basis for resentencing, the court conducts an evid entiary hearing to determine whether the defendant has, in fact, met al l statutory requirements and whether resentencing of the defendant as a second-striker will pose an unreas onable risk of danger to public safety (the qualification hearing). (§ 1170.126, subd. (f).) And third, if the defendant is eligible for resentencing and resentencing does not pose an unreasonable risk of danger to public safety, the court conducts a new senten cing hearing (the resentencing). ( People v. Superior Court ( Kaulick ) (2013) 215 Cal.Ap p.4th 1279, 1299 ( Kaulick ).) In this case, the trial court denied defendant’s petition for resentencing in the initial screening because the fa cts supporting his fe lon-in-possession offense established that he was armed with a firearm wh en he committed the offense. Because of the trial court’s reliance on th e appellate opinion a ffirming defendant’s conviction and because defendant asserts that such reliance was inappropriate, we quote the relevant part of the opinion ( People v. Johnson (Aug. 31, 2001, C034325 [nonpub. opn.]) concerning the facts of defendant’s offense: “Defendant was charged with being a fe lon in possession of a firearm, driving under the influence of alcohol, and driving with a blood alcohol level of over .08 percent. The complaint further alleged that defendant had two prior convictions for robbery and a prior driving under the influence conviction.4 “On July 23, 1997, at 7:45 p.m., S acramento Police Officer Michael Iannone pulled over a black Mitsubishi Starion driven by defendant. Defe ndant's girlfriend, Billeen Pruett, was in the passenger seat. At that time, they were homeless and all of their possessions were in their car. “Defendant identified himself to the offi cer. The officer discovered defendant had a suspended license. As a resu lt, the officer asked defendant and Pruett to step out of the

car. “While Officer Iannone did not have a di stinct recollection of ordering the people out of the car, his standard prac tice would have been to direct the driver to get out of the car and then the passenger. He testified that he was certain that he brought defendant out of the car first and Pruett out later. The o fficer did not observe Pruett make any furtive movements while she was in the car. “Officer Iannone next conduct ed an inventory search of the car. Underneath the driver’s front seat, he found a loaded nine millimeter firearm. There were no identifiable fingerprints on the gun. The o fficer also found some DMV pa perwork in the car with the defendant’s name on it. “At trial, Pruett testified the car belonged to defendant and that she never drove it. The parties stipulated that the ca r was not registered to defendant. “At the time they were pulled over, Pruett knew that there was a gun in the car because defendant had told he r about it and showed it to her. Pruett said defendant had the gun most of the time she knew him. Pr uett testified that the gun was not hers. Defendant and Pruett used the gun for protection because they lived on the streets and down by the river. Pruett also testified th at she was being stalked by her ex-boyfriend, who also carried a gun. “The People dismissed the allegation of the prior driving under the influence count. The jury found de fendant guilty on a ll counts and found the allegations5 concerning the two prior robbery convictions true. On October 14, 1999, the court sentenced defendant to 25 y ears to life in prison.” ( People v. Johnson, supra, C034325.) In denying the petition for re sentencing at the initial sc reening, the trial court stated, referring to the appellate opinion: “This shows that defend ant was ‘armed’ with the firearm he was convicted of possessing, at the time of his possession of the firearm. He was the driver of the car, and the firear m was loaded and available for his immediate use, right underneath his own seat in the car.” DISCUSSION
I Appealability This purports to be an appeal from th e denial of the resentencing petition, and defendant argues that the order is appealab le. However, the appealability of an order denying a defendant’s petition for resentencing under the Three Strikes Reform Act is currently under review in the California Supreme Court. (See, e.g., Teal v. Superior
Court (Second App. Dist., Div. Seven, Perluss, P. J., with Zelon and Segal, J.J., concurring), review granted Ju ly 31, 2013, S211708 [not appealable, but treated as petition for writ of mandate]; People v. Hurtado (Second App. Dist., Div. One, Mallano, P. J., with Rothschild, J., a nd Johnson, J., concurring), re view granted July 31, 2013, S212017 [appealable]; People v. Leggett (Third App. Dist., Raye, P. J., with Robie and Murray, J.J., concurring), review granted Dec. 18, 2013, S2142 64 [appealable under some circumstances, not app ealable under others].) Since our opining either way will not reso lve the appealability i ssue, we elect to treat the appeal as a petition for writ of mandate and reach the merits to promote judicial efficiency and expedite fina l resolution of defendant’s petition without waiting for the Supreme Court to act. (See Olson v. Cory (1983) 35 Cal.3d 390, 401 [court has power to treat appeal as petition for writ of ma ndate under unusual circumstances]; In re Martinez ,6 review granted May 14, 2014, S216922 [tre ating appeal of denial of petition for resentencing as habeas corpus pe tition to avoid appe alability issue].)
II Disqualification for Being Armed with a Firearm Defendant contends that the trial c ourt improperly denied the petition for resentencing based on the fact that he was armed with a firearm during the commission of his felon-in-possession offense. He argues that: (1) the felon-in-possession offense is not one of the disqualifying offenses to which an arming enhancement may be attached; (2) no sentence was “imposed” for his arming ; and (3) the court improperly relied on the statement of facts in the appellate opinion to support its factual finding that he was armed. Some of these arguments were rece ntly considered and rejected in People v. White (2014) 223 Cal.App.4th 512 ( White ). We also find no merit in the arguments. A. Felon-in-Possession Not a Disqualifying Offense Defendant asserts that a court consideri ng a petition for resentencing is precluded from finding the defendant was armed during the commission of the offense if the only current felony conviction was being a felon in possession. For this proposition, he relies

on People v. Bland (1995) 10 Cal.4th 991 ( Bland ), which held that the arming enhancement under section 12022 “requires both that the ‘arming’ take place during the underlying crime and that it have some ‘fa cilitative nexus’ to that offense.” ( Id . at p. 1002, italics omitted.) Possessing a firearm and being armed are not necessarily the same. One is armed with a firearm when it is available for offensive or defensive use. ( Bland, supra, 10 Cal.4th at p. 997.) On th e other hand, one may possess a firearm constructively without possessing it physically. ( White, supra, 223 Cal.App.4th at p. 5 24.) Therefore, one may possess a firearm without being armed with the firearm because if it is possessed merely constructively it is not available for offensive or defensive use.7 In Bland , police officers searched the defendant’s house when he was detained in a police car outside the house. They found drugs and firearms in the same room. ( Bland,

supra, 10 Cal.4th at p. 995.) The court held that, even though the defendant was not present and armed at the time of the search, the factfinder could infer from the presence and proximity of the drugs and firearms that the defendant was armed when he committed the drug offenses. ( Id . at pp. 1002-1003.) “[D]r ug possession is a crime that continues throughout the time th at the defendant has possession of the unlawful drugs.” ( Id . at p. 1001.) The court further held that the proximity of the drugs and firearm must be more than “accidental or coincidental.” ( Id . at p. 1003.) In this regard, the court said: “Of course, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being ‘armed w ith a firearm in the commission’ of felony drug possession only if the ev idence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting th e federal counterpart to California’s weapons enhancement law [citation], have described this link as a ‘facilitative nexus’ between the drugs and the gun. [Citation.] Under fede ral law, which imposes specified prison terms for using or carrying a firearm ‘ “during and in relation to” ’ a crime of drug trafficking, ‘the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence .’ [Citation.] So too in California.” ( Bland, supra, 10 Cal.4th at p. 10 02, original italics.) Here, there was a close relationship be tween the felon-in-possession offense and the arming. They were mutua lly facilitative. He possessed th e firearm so that he could be armed, and he was armed to facilitate hi s possession of the firearm. Defendant was armed for protection, which can be inferred was to maintain possession of his belongings, including the firearm. The arming with the firearm was no accident or coincidence in relation to the possessi on of the firearm. Relying on In re Pritchett (1994) 26 Cal.App.4th 1754 ( Pritchett ), defendant asserts that one cannot be armed with a fi rearm in the commission of being a felon in8 possession of a firearm. We disagree for tw o reasons: (1) as already discussed, the arming was something more than mere po ssession and facilitated that possession and (2) the holding in Pritchett appears to be contrary to the Supreme Court’s holding in Bland

. In Pritchett , a convicted felon battered his form er girlfriend with the barrel of a sawed-off shotgun. He was convicted of bein g a felon in possession of a firearm, and a personal use enhancement was added under section 12022.5, subdivision (a). ( Pritchett,

supra, 26 Cal.App.4th at p. 1755.) On the defendant’s petition for writ of habeas corpus, however, the Court of Appeal, First Appellate District, Division Three (Merrill, J., with White, P. J., and Chin, J., concurring), held that the use enhancement was improper, not because the firearm was used as a club, but because defend ant did not use the firearm when he came into possession of it. The Pritchett court reasoned: “ ‘Use’ in section 12022.5 means, among other things, ‘ “. . . ‘ “to carry out a purpose or action by means of,” to “make in strumental to an end or process,” and to “apply to advantage.” ’ ” ’ [Citation.] De fined somewhat differently, it may mean ‘to avail oneself of’ and ‘to employ.’ [Citation. ] Although Pritchett used the shotgun as a club during his possession of it, he did not use it ‘in the commission’ of his crime of possession. Possession was complete withou t use of the shotgun. In addition to possessing it, he did use it, but using it as a club in no way furthered the crime of possession.” ( Pritchett, supra, 26 Cal.App.4th at p. 1757, italics & fn. omitted.) Unlike the facts in Pritchett , defendant’s arming here fa cilitated the possession, as discussed above. Therefore, Pritchett is distinguishable. Pritchett also appears to be at odds with Bland , which was decided one year after Pritchett . The reasoning in Pritchett suggests that the releva nt moment for whether the defendant used the firearm in the commission of his o ffense of being a felon in possession of a firearm was when he acquired the firearm. Yet Bland holds that such a9 possession offense (drugs, in Bland ) continues, and becoming armed during that continuing period of possession su pports an arming enhancement. Either way, whether we distinguish Pritchett or disagree with it based on Supreme Court precedent, it does not help defendant. Finally, with respect to whether defe ndant was armed when he committed his felon-in-possession offense, defendant argues that “[n]o defendant convicted of the standalone offense of possession of a firearm pursu ant to section 12021, subdivision (a) has ever been found to have been ‘armed’ in the commission of the crime.” But that is beside the point. When a trial court is called upon by the Three St rikes Reform Act to consider the circumstances of a defendant’s current co nviction, it is not to retroactively add an arming enhancement. Instead, the Act calls upon the cour t to determine whether the current conviction was committed in a way that shows that the defendant is too dangerous to be sentenced more leniently. No statut ory or constitutional principle impedes that determination, which wa s done properly here.
B. Sentence Imposed for Arming Subdivision (e)(2) of sec tion 1170.126 allows resent encing if “[t]he inmate’s current sentence was not imposed for any of the offenses appearing [in the cited statutes].” One of those stat utory provisions, as we have discussed, does not identify specific offenses but, instead, identifies circ umstances of the offense – that is, using a firearm, being armed with a firearm or deadly weapon, or intending to cause great bodily injury. (§§ 667, subd. (e )(2)(C)(iii); 1170.12, subd. (c)(2 )(C)(iii).) In this case, defendant was armed with a fi rearm when he committed the felon-in-possession offense, and for that reason was found ineligible for resentencing. Defendant asserts: “No sentence was ever ‘imposed’ on [defendant] for being armed with, or using, [a firearm] or intendi ng to inflict great bodily injury. Instead, a sentence was imposed on [defendant] for simply being a felon in pos session of a gun.10 Consequently, the language of section 1170.126 prec ludes application of the disqualifying condition of being ‘armed’ to [defendant].” Defendant’s assertion fails because a sentence was imposed for the felon-inpossession offense and that offense disqualif ies him from resentencing under the Three Strikes Reform Act because during the commissi on of that offense he was armed. The language disqualifying a defendant from rese ntencing if the current sentence was imposed for a specified offense includes a ll offenses during which a defendant was armed. ( White, supra, 223 Cal.App.4th at p. 527.) Under the plain meaning of the Act, defendant was ineligible for resentencing based solely on the circumstances of his felonin-possession offense. Noth ing more was needed to establish his ineligibility. C. Reliance on Appellate Opinion Defendant argues that the tr ial court improperly relied on the facts in the appellate opinion (which resulted from his appeal of th e current conviction) to determine whether defendant was armed during the commission of his felon-in-possession offense. To the contrary, the appellate opinion is part of the record of conviction wh ich the court properly used in determining de fendant’s eligibility. The factual determination of whethe r the felon-in-possession offense was committed under circumstances that disqualify defendant from resentencing under the Three Strikes Reform Act is analogous to the factual dete rmination of whether a prior conviction was for a serious or violent felony under the Three Strikes law. Such factual determinations about prior convictions are made by the court based on the record of conviction. (See People v. Guerrero (1988) 44 Cal.3d 343, 355 [in determining facts underlying prior convictions, c ourt may look to entire record of conviction].) And the appellate opinion is part of the record of conviction. ( People v. Woodell (1998) 17 Cal.4th 448, 456.) While we speak of the relevant convictio n in this case (the felon-in-possession conviction) as the “current conviction” because defendant is still serving the11 indeterminate state prison term for that convi ction, it is a prior conviction in the sense that the judgment is final and this is a postconviction proceeding. The Three Strikes Reform Act, itself, states that the trial cour t’s consideration of a petition for resentencing constitutes a “ ‘post-conviction release pr oceeding.’ ” (§ 1 170.126, subd. (m).) Therefore, the court properly looked to the re cord of conviction, including the appellate opinion, in deciding whether defendant wa s armed with a firearm during the commission of his felon-in-possession offense. Defendant also finds fault in the trial court’s conclusion that he was armed when he committed his felon-in-p ossession offense because ther e was conflicting evidence. Conflicting evidence, however, does not cast doubt on the trial court’s factual findings because we review factual finding s for substantial evidence. ( People v. Johnson (1980) 26 Cal.3d 557, 578.) Here, th ere was substantial evidence that defendant was armed. Furthermore, the jury’s finding that defendant possessed the firearm under the facts presented at trial in this case was tant amount to a finding that he was armed with the firearm because there was no factual scenario under which defendan t could have been guilty of being in possession of the firearm found under his se at without it being available for offensive or defensive use. Therefore, c onsidering the evidence presented at trial and the jury’s verdict, a determination that de fendant was armed during the offense is the only reasonable conclusion.
D. Conclusion We agree with the White court that (1) “where the record establishes that a defendant convicted under the pre-Proposition 36 version of the Three Strikes law as a third strike offender of possession of a fi rearm by a felon was armed with the firearm during the commission of that offense, the armed-with-a-firearm exclusion applies and, thus, the defendant is not entitled to rese ntencing relief under the Reform Act,” and (2) “in such a case, a trial court may deny section 1170.126 resent encing relief under the armed-with-a-firearm exclusion even if the accusatory pleading, under which the12 defendant was charged and convicted of possessi on of a firearm by a felon, did not allege he or she was armed with a firearm during the commission of that possession offense.” ( White, supra, 223 Cal.App.4th at p. 527.)
III Right to Hearing Defendant contends that he had a right to a hearing in the trial court before the court denied his petition for resentencing. Wh ile he concedes that section 1170.126 does not provide expressly for a hear ing at the initial screening, he claims he had a due process right to be present and to be heard. We disagree. Due process guarantees a criminal defendant “ ‘the right to a fair opportunity to defend against the State’s accusations.’ ” ( People v. Hansel (1992) 1 Cal.4th 1211, 1219, quoting Chambers v. Mississippi (1973) 410 U.S. 284, 29 4 [35 L.Ed.2d 297, 308].) However, the state may prescribe the procedures under which its laws are carried out, and its decisions in this regard do not violate the due process clause unless they offend some fundamental principle of justice. ( People v. Frye (1998) 18 Cal.4th 894, 968-969, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 420-421.) The Three Strikes Reform Act provide s for a hearing if resentencing is appropriate. (See § 1170.126, subd. (m) [“re sentencing hearing”] .) And the defendant has a due process right to a hearing at the qualification phase where the trial court makes a discretionary decision concerning dangerousness. ( Kaulick, supra, 215 Cal.App.4th at pp. 1299-1300.) But neither the statutory sc heme nor the due process clause requires a hearing at the initial screening phase. The petition for resentencing is similar to a petition for writ of habeas corpus, which is another postconviction proceeding. When a defendant files a petition for writ of habeas corpus, the trial court first reviews the petition to determine whether it establishes a prima facie case for relief. If it does not esta blish a prima facie case, the petitioner has13 no right to a hearing on the pe tition. It can be denied summa rily, which does not violate the petitioner’s due process rights. ( People v. Duvall (1995) 9 Cal.4th 464, 474-475.) The same is true with a petition for rese ntencing. A defendant has no right to a hearing unless the initial screen ing of the petition and the defe ndant’s record of criminal convictions supports relief. Defendant give s us no authoritative reason to deviate from this procedure in the name of due process rights. In this case, the trial court considered defendant’s petition for resentencing along with his record of conviction. That record of conviction included the appellate opinion which showed that defendant’s conviction fo r being a felon in possession of a firearm was tantamount to a finding that he was arme d with a firearm because the facts showed that the firearm the jury found defendant possessed was available for offensive or defensive use. On this record, summary denial of the petition for resentencing was proper and did not violate de fendant’s due process rights. Defendant argues that we should treat th e petition for resentencing as a sentencing hearing, at which a defendant has a due process right to be present and to be heard. He cites People v. Rodriguez (1998) 17 Cal.4th 253, which held that on remand after a reversal of the sentencing the defendant has a due process right to be present and to be heard at the new sentencing hearing. That ca se is easily distinguished because it dealt with a sentencing hearing at which the tria l court would exercise its discretion in imposing the sentence. ( Id . at pp. 258-260.) The petition fo r resentencing, on the other hand, is a postconviction pr oceeding during which a defe ndant may be given partial sentencing relief for a convicti on already suffered, but only if the statute’s requirements are met. Furthermore, at the initial screeni ng, there is no discretion to be exercised by the trial court. Accordingly, People v. Rodriguez does not change our analysis. The trial court properly denied defenda nt’s petition for resentencing summarily – that is, without affording defendant an oppor tunity to be present and to be heard.14 DISPOSITION The petition for writ of mandate is denied.

NICHOLSON , Acting P. J.

We concur:

ROBIE , J.

HOCH , J.