Filed 6/29/16 P. v. Mendez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

GABRIEL ACEVEDO MENDEZ,

Defendant and Appellant.

 B268373

 (Los Angeles County

 Super. Ct. No. NA034090)

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

Ryan, Judge. Affirmed.

Jonathan B. Steiner and 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 

Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

——————————
2

Gabriel Acevedo Mendez (Mendez) appeals from an order denying his petition to 

recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36, 

approved by the voters on November 6, 2012, amending Penal Code sections 667 and 

1170.12,1 and adding section 1170.126 (the Act). (People v. Superior Court (Cervantes) 

(2014) 225 Cal.App.4th 1007, 1010.) He contends the trial court erred when it found him 

ineligible because he was armed with a firearm during the commission of his final strike 

offense in 1997. We find no error, and we affirm.

A jury convicted Mendez of the felony of unlawful possession of a firearm by a 

felon (former § 12021, subd. (a)(1)) and the misdemeanor of drawing or exhibiting a 

firearm (§ 417, subd. (a)(2)). The trial court also found true that Mendez had suffered 

five serious and violent felony convictions under the “Three Strikes” law, and sentenced 

him to 27 years to life in state prison. Mendez appealed and we affirmed. (People v. 

Mendez (Nov. 4, 1999, B126744) [nonpub. opn.].) We described the facts of the case as 

follows: “Defendant and an individual named Torrez had once upon a time exchanged 

blows in a bar. Defendant later apologized. On the night of defendant’s downfall, he 

encountered Torrez in the same bar and again apologized. But his contrition was quite 

short-lived. A few minutes later, Torrez went outside for a breath of air. Defendant 

walked out of the bar and pointed a handgun at Torrez’ face. Torrez ran into the bar and 

called police. Defendant and a friend tried to drive away from the scene, but were 

stopped by police who arrested defendant and recovered the gun. Defendant was 

intoxicated.”

In February 2013, Mendez petitioned for a recall of his sentence, and the trial 

court filed an order to show cause why relief should not be granted. The district attorney 

filed an opposition arguing Mendez was ineligible for resentencing because he was armed 

with a firearm during the commission of his offense and unsuitable for resentencing, as 

an unreasonable danger to society and public safety. (§§ 667, subd. (e)(2)(C)(iii); 

1170.126, subds. (e)(2), (f).) Mendez filed a reply addressing the eligibility issue, citing 

 

1 All further statutory references are to the Penal Code.
3

California case law regarding the “‘arming’” provision. At a November 16, 2015 

hearing, the trial court concluded Mendez was legally ineligible, as he was armed with a 

firearm during the commission of his possession offense. The court denied Mendez’s 

petition to recall, and Mendez filed a timely appeal.

An inmate is eligible for resentencing under section 1170.126, subdivision (e)(2) if 

“[t]he inmate’s current sentence was not imposed for any of the offenses appearing 

in . . . clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision 

(c) of Section 1170.12.” Those sections prohibit treating a third striker as a second 

striker 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), italics added.) Citing principles of statutory construction and voter 

intent, Mendez argues he was not armed at the time of the commitment of the offense, 

reasoning that a conviction of felon in possession cannot be the basis of an armed finding, 

as being armed is an element of a possession offense. Mendez also argues that being 

armed with a firearm must be “tethered” to another offense before the crime renders a 

defendant ineligible for resentencing.

All case authority rejects Mendez’s arguments. The appellate courts have 

concluded that a defendant is ineligible for resentencing whenever the record shows the 

defendant was in actual physical possession of the firearm, and therefore not only 

possessed the firearm but was armed with it. (People v. Hicks (2014) 231 Cal.App.4th 

275, 283–284; People v. Brimmer (2014) 230 Cal.App.4th 782, 797; People v. Elder 

(2014) 227 Cal.App.4th 1308, 1312–1314, 1317; People v. Osuna (2014) 225 

Cal.App.4th 1020, 1030; People v. White (2014) 223 Cal.App.4th 512, 525.) A 

defendant is armed with a firearm if it is “readily available to him for offensive or 

defensive use.” (Osuna, at p. 1030; People v. Bland (1995) 10 Cal.4th 991, 997.) The 

firearm was readily available for Mendez’s use when he pulled it out and pointed it at 
4

Torrez’s face. Mendez was thus armed with a firearm during his commission of the 

offense of being a felon in possession of a firearm.

“Where, as here, the record shows that a defendant convicted of possession of a 

firearm was armed with the firearm during the commission of the offense, the armed with 

a firearm exclusion applies and the defendant is not entitled to resentencing . . . under the 

Act.” (People v. Brimmer, supra, 230 Cal.App.4th at p. 797.) We reject Mendez’s 

contention that the electorate and their legislators do not see this crime as one of the more

dangerous crimes that require lengthy detention. The intent of the electorate was for 

Proposition 36 to apply “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.” (People v. Osuna, supra, 225 

Cal.App.4th at p. 1038.)

The trial court correctly denied Mendez’s recall petition.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

LUI, J.