1

Filed 1/26/16 P. v. Y oung CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. GREGORY YOUNG, Defendant and Appellant. A142000
(Alameda County Super. Ct. No. 139666)

Defendant Gregory Young appeals from the minute order denying his petition for
reduction of his Three Strike sentence under Penal Code sec tion 1170.126

. 1 In 2001, defendant was convicted of assault with a firearm (§ 245 , subd. (a)(2) )
and being a past

- convicted felon in possession of a firearm (former § 12021, subd. (a), now § 29800, subd. (a).) Because three of defendant’s five felony convictions qualified as serious or violent, he was sentenced un der the Three Strikes statutes (§§ 667, 1170.12) to state prison for a term of 25 years to life. In 2002, on direct appeal, this court reversed the assault conviction, but affirmed the possession count. ( People v. Young (Oct. 1, 2002, A094322) [nonpub. o pn.]

. )
In 2012 , the voters adopted Proposition 36, the Three Strikes Reform Act, thereby amending the two Three Strike statutes to authorize terms of 25 year s to life only where the “third strike” conviction is a serious or violent felony. The initiative also added section 1170.126, which establishes the procedure for persons already sentenced under

1 Statutory references are to this Code.2

the Three Strikes law to apply for a reduction of a term of 25 year s to life

. It also specifies how the court is to review that application. Thus: The inmate must first “file a petition for a recall of sentence, .

. . to request resentencing.” (§ 1170.126, subd. (b).) Subdivision (e) of section 1170.126 establishes the criteria to determine whether “[a]n inmate is eligible for resentencing.” “Upon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e). If the petitioner satisfies the criteria in subdivision (e), the petitioner shall be resent enced [as a second strike offender with a doubled term] pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that resentencing the petitioner wou ld pose an unreasonable risk of danger to public safety .”
D efendant ’ s petition for resentenc ing under section 1170.126 was opposed by the Alameda County District Attorney on the ground that “defendant is ineligible for resentencing consideration under sec tion 1170.126 because during the commission of the offense he was armed with a firearm.” The supposed ineligibility was compelled by the language of section 1170.126 excluding from resentencing a defendant whose “current sentence was not imposed for

any of the offenses appearing in clauses (i) to (i ii ), inclusive of subparagraph (C) of Section 667 or . . . subdivision (c) of Sect io n 1170.12.” (§ 1170.126, subd. (e)(2).) The incorporated by reference subdivisions thus preclude relief if “[d]uring the co mmission of the current offense, the defendant used a firearm, [or] was armed with a firearm.” (§§ 667, subd. (e)(2)(C)(iii), 1 170.12, subd. (c)(2)(C)(iii).) At the hearing held i n May 2014, the brief argument focused on the issue of
whe the r defendant was eligible for resentencing. Defendant’s counsel conceded : “I understand in light of the most recent cases that address this issue, People v. Blakely [(2014) 225 Cal.App.4th 1042] , People v. White [(2014) 223 Cal.App.4th 512] , and People v. Osuna [(2014) 225 Cal.App.4th 1020],

. . . the c ourt is b ound by those appellate

c ourt decisions. So all I’ll say is
, to protect Mr. Young’s rights going forward, I do think3

that to find [that] during the commission of the offense he was armed with a fir earm

r equires the c ourt to engage in its own fact finding.” The deputy district attorney largely concurred: “I agree under the case law that Mr. Young is ineligible. I would also point out that this did go to the jury. Testimony
was taken that Mr. Yo ung shot someone during the offense; therefore, it’s clear he was
armed . So trial transcripts . . . [c]ourt records exist .”
T he trial court denied the petition as follows: “The c ourt has taken judicial notice of the court file in this matter, which in cludes the unpublished opinion by the Firs t Appellate District , Division Two regarding Mr. Young’s conviction, which indicates [in a] factual recitation of the case that ‘ [a] ppellant retrieved a loaded firearm from the at tic and put it in his pocket.’

. . . ‘Appellant drew his gun and shot Reeves in the han d,’
which is use of a firearm.

. . . [T] he c ourt has [also] taken judicial notice of t h e proba t ion report, and in that report on page 4, the defendant, Mr. Young, indicates that he did, in fact, get a g un and pulled the gun and shot the victim. [¶] Therefore, I think there’s ample evidence under the case law to show that he was armed with a firearm and actually, in fact, used a firearm in the commission, but for the 12021, it’s definitely arming, that would exclude him from re

- sentencing under the statute

. ”
A s may be gathered , defendant wants a different answer to the question of whether
hi s gun possession conviction makes him i n eli g ible for resentencing. His approach is to urge what has become known as the “tethered” argument. Briefly, this argument, which was first rejected by the Fifth District in 2014 ( People v. Osuna , supra , 225 Cal.App.4th
1020 ( rev. den. July 9, 2014) ; People v. White , supra , 223 Ca l.App.4th 512 ( rev. den

. Apr . 30 , 2014) ) , posit s that a defendant cannot be “armed” with a firearm during the commission of possessing that same firearm. The “armed with a firearm” exclusions of section 667, subdivision (e)(2)(C)(iii) , or section 1170.12, subdivision (c)(2)(C)(iii) , do not include mere possession

— particularly if it is constructive possession

— but requires4

that the arming be “tethered” to an other, different offense t hat does not penalize mere
possess i on

. 2 Defendant’s experienced counsel cannot deny th e rejection of this argument going back to its first appearance in People v. White , supra , 223 Cal.App.4th 512

. Counsel tacitly concedes that not a single reported decision accepts the argument , while a
mountain of finalized authority oppose s it

— and supports the trial court’s ruling . ( People
v. Hicks (2014) 231 Cal.App.4th 275 , rev. den

. Feb. 25, 2015 ; People v. Brimmer (2014) 230 Cal.App.4th 782 , rev. den

. Jan. 14, 2015 ; People v. Quinones (2014) 228 Cal.App.4th 104 0 , rev. den . Nov. 12, 201 4 ; People v. Elder (2014) 227 Cal.A p p.4th
1308 , rev. den. Oct. 15, 2014 ; People v. Blakely , supra , 225 Cal.App.4th 1042 , rev. den

. July 9, 2014 ; People v. Superior Court ( Cer v ante s ) (2014) 225 Cal.App. 4th 10 07 , rev. den. July 9, 2014 ; People v. Superior Court ( Martinez ) (2014) 225 Cal.App.4th 979 , rev. den. July 9, 2014 .) And we decline counsel’s invitation to become the first court to
d eviate from this settled line of decisions that our Supreme Court has undeviatingly
declined to review. For purposes o f the Three Strike statutes, the prosecution is required to plead and then prove the existence of a qualifying felony conviction. Defendant contends the prosecution bears a similar burden in demonstrating that a defendant is ineligible for

2 In addition to rejecting this argument, the Osuna court also rejected a related argument that there had to be a “facilitative nexus” to the Three Strike felony that is unrelated to possession of the firearm. ( People v. Osuna , supra , 225 Cal.App.4th at pp. 1030

- 1032.) It is not entirely clear from the single mention of this argument in his brief that defendant is invoking this argument and relying on it. The emphasis seems to be that mere constructive possession leading to a conviction for violating forme r section 12021. (See id . at p. 1032 [“[W]e conclude the literal language of [section 1170.126] disqualifies an inmate from resentencing if he or she was armed with a firearm during the unlawful possession of that firearm.”].) It would be easily understo od why petitioner does not stand upon this argument. Our opinion on the prior appeal shows that there was no question of constructive possession but actual use, as would be expected in a prosecution for assault with a firearm. (See People v. Young , supra , (A094322) [“Reeves looked down . . . , and when he looked up, appellant had pulled a gun. . . . Appellan t then shot Reeves in the thigh

. ”]. )5

relief under se ction 1170.126. As applied here, defendant contends this required the district attorney to plead and prove that he was armed with the firearm he was convicted of illegally possessing. This argument too ha s m et with unanimous rejection

. ( People v.
Chubbuck (2014) 231 Cal.App.4th 737, 745

- 746 , rev. den . Feb. 11, 2015 ; People v. Guilford (2014) 228 Cal.App.4th 651, 657 , rev. den. Oct. 15. 2014 [“There is no provision for the people to plead or prove anything”]; People v. Bradford (2014) 227 Cal.App.4t h 1322, 1333

- 1334 ; People v. Blakely , supra , 225 Cal.App.4th at pp. 1058

- 1059 [“voters did not intend disqualification under Proposition 36 to require pleading and proof of a formal offense or enhan c ement ”] ; People v. Osuna , supra , 225 Cal.App.4th 1020, 10 33 ; People v. White , supra , 223 Cal.App.4th at pp. 526

- 527 ; People v. Superior
Court ( Kaulick ) (2013) 215 Cal.App.4th 1279, 1298, fn. 21, 1303, fn. 26.) Somewhat obliquely, defendant disputes that the trial court was empowered to decide the issue of eligibility on the basis of the trial record, including our opinion on the prior appeal. Again, no authority supports him. (See, e.g., People v. Hicks , supra , 231 Cal.App.4th at p. 286 [“the appellate opinion is part of the record of conviction which the trial court properly used in determining defendant’s eligibility”]; People v. Brimmer , supra , 230 Cal.App.4th at pp. 800

- 801 [“a trial court may rely on the r ecord of conviction, including this court’s prior opinion . . . , as evidence to determine eligibility under the Act”]; People v. Guilford , supra , 228 Cal.App.4th at pp. 659

- 660 & fn. 5 [“the trial court was ‘correct that it can rely upon facts from an app ellate decision’ ”] .) It is not until his reply brief that defendant makes clear he believes under Apprendi v. New Jersey (2000) 530 U.S. 466 the determination that he was armed, and thus disqualified, can only be made by a jury, unless t he defendant waiv es that right. This argument is untimely

. ( E.g., People v. Tully (2012) 54 Cal.4th 952, 1075 [ “It is axiomatic that arguments made for the first time in a reply brief will not be entertained” ]

. ) Also, it was not made in the trial court. ( E.g., People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13 [ “When a party does not raise an argument at trial, he may not do so on appeal.” ] .) And if the point had been preserved for review, it would lose on the merits, because, yet again, it is contrary to the unanimous authority that Apprendi applies6

only when punishment is increased , not when, as with section 1170.126, it may be
decreased . ( See, e.g., People v. Brimmer , supra , 230 Cal.App.4th at pp. 804

- 805 ; People

v. Blakely , supra , 22 5 Cal.App.4th at pp. 1 059

- 1060 ; People v. Osuna , supra , 225 Cal.App.4th at pp. 1039

- 1040; Kaulick , supra , 215 Cal.App.4th at pp. 1304

- 1305 .)
The order is affirmed

.

_________________________ Richman, J.

We concur:

_________________________ Kline, P.J.

___________ ______________ Stewart, J.