Filed 3/28/16 P. v. Soto CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THE PEOPLE,

Plaintiff and Respondent,

v.

ABELARDO SOTO,

Defendant and Appellant.

B249197

(Los Angeles County

Super. Ct. No. VA044520)

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

William C. Ryan, Judge. Affirmed.

Jonathan B. Steiner and Cheryl Lutz, 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, Assistant Attorney General, Victoria B. Wilson and Noah P. 

Hill, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

Abelardo Soto appeals from the trial court order denying his petition for resentencing 

under the Three Strikes Reform Act of 2012 (hereafter, Proposition 36 or the Act). The Act 

amended Penal Code1sections 667 and 1170.12 (the Three Strikes law) to reduce the 

punishment for some third-strike offenses that are neither serious nor violent. The Act also 

added section 1170.126 to create a procedure by which some inmates already serving thirdstrike sentences may seek resentencing in accordance with the new sentencing rules. 

Soto was convicted in 1998 of two drug offenses and being a felon in possession of a 

firearm, and he received a Three Strikes sentence of 28 years to life. In 2013, he filed a 

petition for recall of his Three Strikes sentence pursuant to section 1170.126. The trial court 

denied the petition on the ground that Soto had been armed with a firearm during the 

commission of his offenses within the meaning of sections 667, subd. (e)(2)(C)(iii), and 

1170.12, subd. (c)(2)(C)(iii), which disqualified him from resentencing consideration. We 

affirmed this ruling on appeal (see People v. Soto (2014) formerly published at 228 

Cal.App.4th 967, review granted October 15, 2014 (Soto II), but our Supreme Court 

subsequently granted Soto’s petition for review and transferred the matter back to us for 

reconsideration in light of People v. Johnson (2015) 61 Cal.4th 674 (Johnson). We have 

received supplemental briefing from the parties and, as explained below, we again hold the 

trial court correctly determined that Soto was ineligible for resentencing under the Act.

BACKGROUND

Viewed in accordance with the usual rules of appellate review (People v. Ochoa

(1993) 6 Cal.4th 1199, 1206), the evidence established the following. 

On September 7, 1997, Los Angeles County Deputy Sheriff Randy Hasnas made a 

traffic stop on a white Buick being driven by Soto. Hasnas stopped the vehicle because 

Soto appeared to be drinking a beer as he was driving. Soto was alone in the vehicle, and 

when Hasnas walked up to the driver’s side he saw a clear plastic bag containing a white 

substance on Soto’s lap. Hasnas could also see “what appeared to be a grip of a handgun 

protruding from below the front seat.” After Hasnas ordered Soto out of the Buick, he saw 

 

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

an ammunition clip on the driver’s seat. Soto had been sitting on the ammunition clip while 

he was driving. From underneath the car seat, Hasnas recovered a Colt semiautomatic .45-

caliber handgun that was loaded with a second ammunition clip. The white substance inside 

the plastic bag was subsequently analyzed and found to contain 4.19 grams of cocaine.

Defense witness Peter Del Real testified that on September 6, 1997, the day before 

the traffic stop, he borrowed Soto’s Buick to give a ride to a friend. Del Real testified he 

had a gun with him that day, which he placed under the car seat. Del Real identified the gun 

that Deputy Hasnas recovered as the same gun he had left in the Buick. Del Real testified 

that when he returned the Buick to Soto he neglected to say anything about the gun, which

was out of sight underneath the front seat. Del Real testified he left one ammunition clip 

loaded into the gun, and that a second ammunition clip was sitting “on top” of the gun “just

right there under the seat with the gun.”

The jury convicted Soto of possessing a controlled substance (count 1), transporting a 

controlled substance (count 2), and being a felon in possession of a firearm (count 3). 

(Health & Saf. Code, §§ 11350, 11352, subd. (a); Pen. Code [former] § 12021, subd. (a)2.) 

The jury found true an allegation that, in the commission of count 2, Soto had been 

personally armed with a firearm (§ 12022, subd. (c)). He also admitted two prior robbery 

convictions (667, subds. (b)-(i)). The trial court sentenced Soto as follows: on count 1, to a 

prison term of 25 years to life, plus three years for the firearm enhancement; on count 2, to a

term of 25 years to life, which was then stayed under section 654 (the prohibition against

multiple punishment)3; and, on count 3, to a concurrent term of 25 years to life.

 

2

The Deadly Weapons Recodification Act of 2010 repealed and recodified former 

sections 12000 to 12809 without substantive change. (§§ 16000, 16005, 16010.) Former 

section 12021, subdivision (a), was recodified without substantive change at section 29800, 

subdivision (a) operative January 1, 2012. (Cal. Law Revision Com. com., 14 Deering’s 

Ann. Pen. Code (2012 ed.) foll. § 29800, p. 921.)

3

Section 654, subdivision (a), provides: “An act or omission that is punishable in 

different ways by different provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no case shall the act or 

omission be punished under more than one provision. An acquittal or conviction and 

sentence under any one bars a prosecution for the same act or omission under any other.”
4

On appeal from the conviction, Soto contended that his sentence for the drug 

possession offense (count 1) should not have been enhanced by three years, a claim that was 

conceded by the Attorney General. In our 1999 decision in this matter (People v. Soto 

(Sept. 17, 1999, B122916) [nonpub. opn.] (Soto I))

4

, we concluded the parties were correct 

and remanded for resentencing. 

On remand, the trial court struck the enhancement and sentenced Soto to 25 years to 

life on count 1. The court then imposed the same sentences on counts 2 and 3 that had been 

imposed originally, and the sentence on count 2 was again stayed under section 654.

In 2013, after Proposition 36 was enacted, Soto sought resentencing. The superior 

court (Judge William C. Ryan) denied Soto’s petition to recall his sentence on the ground 

that his “current offense falls under Penal Code section 667(e)(2)(C)(iii) [armed with 

firearm during commission of current offense], making Defendant ineligible for 

resentencing under Penal Code section 1170.126.”

In his appeal to this court from the denial of his resentencing petition, Soto argued 

that even if his count 2 arming enhancement disqualified him from Proposition 36 

resentencing on count 2, he was still eligible for resentencing on the other counts. We 

disagreed, holding that Soto’s count 2 conviction rendered him entirely ineligible for 

resentencing. (Soto II)

Soto petitioned for review. The Supreme Court granted review and deferred further 

action pending its consideration of a related issue in other cases. The Supreme Court 

thereafter transferred the matter back to this court for reconsideration in light of its 2015 

decision in Johnson, supra, 61 Cal.4th 674.

The Johnson decision held that Proposition 36 “requires an inmate’s eligibility for 

resentencing to be evaluated on a count-by-count basis. So interpreted, an inmate may 

obtain resentencing with respect to a three-strikes sentence imposed for a felony that is 

neither serious nor violent, despite the fact that the inmate remains subject to a third strike 

 

4 We take judicial notice of this unpublished opinion. (Evid. Code, § 452 subd. (d); 

Cal. Rules of Court, rule 8.1115(b).)
5

sentence of 25 years to life.” (Johnson, supra, 61 Cal.4th at p. 688.) We now reconsider 

our decision in Soto II in light of Johnson. 

DISCUSSION

1. The Act.

Johnson, supra, 61 Cal.4th 674, summarized the Act’s purpose and provisions as 

follows:

“Prior to its amendment by the Act, the Three Strikes law required that a defendant 

who had two or more prior convictions of violent or serious felonies receive a third strike 

sentence of a minimum of 25 years to life for any current felony conviction, even if the 

current offense was neither serious nor violent. (Former §§ 667, subds. (d), (e)(2)(A), 

1170.12, subds. (b), (c)(2)(A).)[5]The [prospective portions of the] Act[6]amended the 

Three Strikes law with respect to defendants whose current conviction is for a felony that is 

neither serious nor violent. In that circumstance, unless an exception applies, the defendant 

is to receive a second strike sentence of twice the term otherwise provided for the current 

felony, pursuant to the provisions that apply when a defendant has one prior conviction for a 

serious or violent felony. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C); see §§ 667.5, 

subd. (c) [list of violent felonies], 1192.7 [list of serious felonies], 1192.8 [additional serious 

felonies for purposes of § 1192.7].)

“The Act’s exceptions to the new sentencing provisions relate to a defendant’s 

current offense and prior offenses. If the current offense involves controlled substances and 

specified findings are made concerning the quantity of controlled substances involved, or if 

the current offense is among specified sex offenses, a defendant with two or more strikes 

must be sentenced to a term of at least 25 years to life. [Fn. omitted.] (§§ 667, 

 

5

“The Three Strikes law was enacted twice in 1994, first by the Legislature (§ 667, 

subds. (b)-(i); Stats. 1994, ch. 12, § 1, p. 71), and thereafter by the voters by way of 

Proposition 184 (§ 1170.12; [citation]).” (Johnson, supra, 61 Cal.4th at p. 681, fn. 1.)

6

The prospective provisions of the Act (§§ 667, subd. (e)(2)(C), 1170.12, 

subd. (c)(2)(C)) apply to individuals whose “current” offense is committed after the 

effective date of the Act.
6

subd. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) A third strike sentence is also 

required 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).) Finally, a 

defendant will be excluded from the new sentencing provisions if he or she suffered a prior 

conviction for . . . [certain offenses listed in § 667, subd. (e)(2)(C)(iv) and § 1170.12, 

subd. (c)(2)(C)(iv) which are sometimes referred to as] ‘super strikes.’ [Citation, fn. 

omitted.] 

“In addition to reducing the sentence to be imposed for some third strike felonies that 

are neither violent nor serious, the Act provides a procedure by which some prisoners 

already serving third strike sentences may seek resentencing in accordance with the new 

sentencing rules. (§ 1170.126.) ‘An inmate is eligible for resentencing if . . . [¶] . . . [t]he 

inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three 

Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or 

violent . . . .’ (§ 1170.126, subd. (e)(1).) Like a defendant who is being sentenced under the 

new provisions, an inmate is disqualified from resentencing if any of the exceptions set forth 

in section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C) are present. 

(§ 1170.126, subd. (e).) In contrast to the rules that apply to sentencing, however, the rules 

governing resentencing provide that an inmate will be denied recall of his or her sentence if 

‘the court, in its discretion, determines that resentencing the petitioner would pose an 

unreasonable risk of danger to public safety.’ (§ 1170.126, subd. (f).)” (Johnson, supra, 

61 Cal.4th at pp. 680-682.)

2. The trial court correctly ruled that Soto was ineligible for resentencing.

In this appeal, Soto solely contends the trial court erred in finding he is ineligible for 

Proposition 36 resentencing on his count 3 conviction for being a felon in possession of a 

firearm.7 We disagree.

 

7

Soto asserts that he is challenging only the trial court’s denial of his resentencing 

petition as to count 3 because he will be eligible to have his count 1 drug possession 

conviction reduced to a misdemeanor under Proposition 47.
7

a. Legal principles.

Soto’s ineligibility for resentencing depends on whether, during his violation of 

former section 12021 for possessing a firearm, he was also armed with a firearm. (See 

§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)

“ ‘The statutory elements of a violation of section 12021, subdivision (a)(1), . . . are 

that a person, who has previously been convicted of a felony, had in his or her possession or 

under his or her custody or control any firearm.’ [Citation.] Although the crime of 

possession of a firearm by a felon may involve the act of personally carrying or being in 

actual physical possession of a firearm . . . such an act is not an essential element of a 

violation of former section 12021, subdivision (a), because a conviction of this offense may 

also be based on a defendant’s constructive possession of a firearm. [Citations.] ‘To 

establish constructive possession, the prosecution must prove a defendant knowingly 

exercised a right to control the prohibited item, either directly or through another person.’ 

[Citation.] Hence, while the act of being armed with a firearm – that is, having ready access 

to a firearm [citation] – necessarily requires possession of the firearm, possession of a 

firearm does not necessarily require that the possessor be armed with it.” (People v. 

Brimmer (2014) 230 Cal.App.4th 782, 795.)

“[A]rming under the sentence enhancement statutes does not require that a defendant 

utilize a firearm or even carry one on the body. A defendant is armed if the defendant has 

the specified weapon available for use, either offensively or defensively. [Citations.] As a 

recent Court of Appeal decision observed, ‘a firearm that is available for use as a weapon 

creates the very real danger it will be used.’ [Citation.] Therefore, ‘[i]t is the availability –

the ready access – of the weapon that constitutes arming.’ [Citation.]” (People v. Bland

(1995) 10 Cal. 4th 991, 997 (Bland).)

As a result of these principles, “not every commitment offense for unlawful 

possession of a gun necessarily involves being armed with the gun, if the gun is not 

otherwise available for immediate use in connection with its possession, e.g., where it is 

under a defendant’s dominion and control in a location not readily accessible to him at the 

time of its discovery.” (People v. Elder (2014) 227 Cal.App.4th 1308, 1313-1314.) “A 
8

firearm can be under a person’s dominion and control without it being available for use. For 

example, suppose a parolee’s residence (in which only he lives) is searched and a firearm is 

found next to his bed. The parolee is in possession of the firearm, because it is under his 

dominion and control. If he is not home at the time, however, he is not armed with the 

firearm, because it is not readily available to him for offensive or defensive use. 

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

firearm.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1030, fn. omitted.)

Numerous cases have concluded that, under Proposition 36, a conviction for being a 

felon in possession of a firearm disqualifies an inmate from resentencing if the nature of that 

possession amounted to arming as defined in Bland. (See, e.g., People v. White (2014) 

223 Cal.App.4th 512, 525-526 [defendant who tossed away handgun while running from 

police found to be armed with a firearm and disqualified for purposes of resentencing]; 

People v. Hicks (2014) 231 Cal.App.4th 275, 280, 284 [after defendant detained at front 

gate of apartment complex, gun was found inside his backpack in apartment he had been 

visiting and he was found to be armed and disqualified from resentencing]; People v. 

Brimmer, supra, 230 Cal.App.4th at pp. 796-797 [defendant who threatened his girlfriend 

with shotgun during argument was found to be armed and not entitled to resentencing]; 

People v. Elder, supra, 227 Cal.App.4th at p. 1317 [police found defendant outside his 

apartment and, inside, found gun on cabinet shelf and second gun in bedroom safe; 

defendant was found to be armed with a firearm and thus ineligible for resentencing].)

Soto concedes that “a defendant’s weapon possession may amount to arming” that 

“will disqualify a defendant” from resentencing, but he argues we cannot reach that result in 

his case because of a ruling we made in his direct appeal. Soto had claimed that punishing 

him for both count 2 (transporting cocaine) and count 3 (felon in possession of a firearm) 

violated the prohibition against multiple punishment (§ 654). We rejected this claim, 

pointing out that the evidence demonstrated the gun had been in his car “as early as 

September 6, 1997 [i.e., the day before the traffic stop], but [he] first transported the cocaine 

the next day and, therefore, that [he] had multiple criminal objectives. [¶] Moreover, even 

if [Soto] only simultaneously transported the cocaine and possessed the firearm, for all the 
9

record reflects, that transportation and possession were simply fortuitous and unrelated.” 

(Soto I [nonpub. opn.] at p. 14, italics added.)

Contrary to the implication of Soto’s argument, there need not be a facilitative nexus

8

between the inmate’s “current offense” (here being a felon in possession of a firearm) and 

the disqualifying factor of “being armed during the commission of that offense.” “[U]nlike 

section 12022, which requires that a defendant be armed ‘in the commission of’ a felony for 

additional punishment to be imposed (italics added), the Act disqualifies an inmate from 

eligibility for lesser punishment if he or she was armed with a firearm ‘[d]uring 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. (1993) p. 703.) Thus, there must be a temporal nexus between the 

arming and the underlying felony, not a facilitative one. The two are not the same. 

[Citation.]” (People v. Hicks, supra, 231 Cal.App.4th at pp. 283-284, italics added; accord 

People v. Brimmer, supra, 230 Cal.App.4th at pp. 798-799; People v. Osuna, supra, 

225 Cal.App.4th at p. 1032.)

 

8

For enhancement purposes, “a defendant is armed if the gun has a facilitative nexus 

with the underlying offense (i.e., it serves some purpose in connection with it).” (People v. 

Brimmer, supra, 230 Cal.App.4th at pp. 794-795.) This concept of “facilitative nexus” was 

explained by Bland, supra, 10 Cal.4th at p. 1002: “[F]or a defendant to be subject to 

additional punishment for being armed with a firearm, California law requires the ‘arming’ 

to be ‘in the commission or attempted commission’ of the underlying felony. (§ 12022, 

subd. (a)(1).) With respect to felony drug possession [for instance], a defendant is armed ‘in 

the commission’ of that crime so long as the defendant had the firearm available for use in 

furtherance of the drug offense at some point during the defendant’s possession of the 

drugs. Thus, by specifying that the added penalty applies only if the defendant is armed 

with a firearm ‘in the commission’ of the felony offense, section 12022 implicitly requires 

both that the ‘arming’ take place during the underlying crime and that it have some 

‘facilitative nexus’ to that offense. Evidence that a firearm is kept in close proximity to 

illegal drugs satisfies this ‘facilitative nexus’ requirement: a firearm’s presence near a drug 

cache gives rise to the inference that the person in possession of the drugs kept the weapon 

close at hand for ‘ready access’ to aid in the drug offense.”
10

Here, the only evidence regarding the gun was Deputy Hasnas’s testimony that he

found it inside Soto’s car during the traffic stop, and Del Real’s testimony that – on the day 

before the traffic stop – he placed the gun under Soto’s car seat. The question for the jury 

was whether Soto knew the gun was in his car; there was no claim by the prosecution that 

Soto was guilty because he had constructive possession of the gun at some other point in 

time when it was a great distance from his person.

The jury had been instructed that, in order to convict Soto of the section 12021 

charge, “each of the following elements must be proved: [¶] 1. The defendant owned, had 

in his possession, or had under his control a handgun; [¶] and [¶] 2. The defendant had 

knowledge of the presence of the handgun.” During closing argument, the prosecutor told 

the jury that the gun was “right underneath the seat. It is in an area where [Soto] is able to 

exercise control over [it],” the gun was “visible, visible to the deputies outside the car, must 

be visible to him inside the car,” the gun “was sticking out underneath from the seat,” and 

Soto had even been “sitting on one of the ammunition clips.”

It is clear that Soto’s felon-in-possession conviction was based on the jury’s implicit 

conclusion that “he had a firearm capable for ready use, during the commission of that 

offense, [therefore] the armed with a firearm exclusion applies and, thus, [Soto] is not 

entitled to resentencing relief under the Act.” (People v. Brimmer, supra, 230 Cal.App.4th 

at p. 805, italic added.) Because there was a temporal nexus between the arming and the 

underlying felony of being a felon in possession of a firearm, the trial court properly ruled 

that Soto was ineligible for resentencing under Proposition 36.
11

DISPOSITION

The post-judgment order denying Soto’s petition and declaring him ineligible for 

resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

ALDRICH, J.

LAVIN, J.