Filed 6/22/16 P. v. Jackson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES JACKSON,

Defendant and Appellant.

 D068893

 (Super. Ct. No. SCD106174)

APPEAL from an order of the Superior Court of San Diego County, Melinda J. 

Lasater, Judge. Affirmed.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. 

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

In 1995, Charles Jackson was convicted of possession of a firearm by a felon (Pen.

Code,1 § 12021, subd. (a); possession of a firearm while under the influence of a 

 

1 All further statutory references are to the Penal Code unless otherwise specified.
2

controlled substance (Health & Saf. Code, § 11550, subd. (e)); concealing a firearm on 

his person (§ 12025, subd. (a)(2)); possession of a loaded firearm (§ 12031, subd. (a)(1));

and being under the influence of a controlled substance (Health & Saf. Code, § 11550, 

subd. (a)). Jackson admitted two serious/violent felony prior convictions (§ 667, subds. 

(b)-(i)). 

Jackson was originally sentenced to a term of 50 years to life. 

In an unpublished opinion filed September 18, 1997 (People v. Jackson,

D023707),2 this court affirmed the convictions, but reduced the sentence to 25 years to

life. 

Following the passage of Proposition 36 (the Three Strikes Reform Act of 2012,

"the Act"), Jackson filed a petition to recall and resentence under the Act. The trial court 

determined Jackson was ineligible for resentencing because he was armed with a firearm 

at the time of the offense. 

Jackson appeals contending the trial court erred in finding he was armed at the 

time of the offense. Jackson notes possession of a firearm does not necessarily involve 

being armed. Further, he contends he could not be found to be armed unless the act of 

being armed was "tethered" or committed in a separate offense. Finally, Jackson argues 

he was entitled to have the contention he was armed pled and proved beyond a reasonable 

doubt, and to have a jury trial on such contention.

 

2 We have granted Jackson's request to take judicial notice of our opinion in 

D023707.
3

Jackson recognizes that current case law has rejected his contentions. He 

contends, however, that such cases were wrongly decided. We will reject each of 

Jackson's contentions and affirm.

STATEMENT OF FACTS

The parties have used the facts from our prior opinion as the basis for the petition 

and this appeal. We will incorporate those facts here.

On the morning of August 26, 1994, Jackson, in an agitated condition, entered a 

downtown San Diego custom furniture store and asked the owner, John Fruehwirth, if he 

wanted to buy a nine-millimeter handgun for $150. Fruehwirth asked Jackson, "What do 

I look like?" Jackson replied, "Well, I didn't think you look like the police." Fruehwirth 

pushed Jackson from the store and told his wife to call the police. Jackson and a 

companion departed.

The police received several reports that morning of two men trying to sell a gun. 

At about 10:00 a.m., Officer Kerry Mensior saw Jackson, who fit the description of one 

of the men, and another man walking on the street in the vicinity of Fruehwirth's store. 

When he stopped his car, Jackson and his companion turned and walked away from the 

officer. Mensior drew his gun and told the men to stop. Noticing Jackson had something 

in each hand, the officer told him to drop what he was holding. Jackson dropped a 

magazine for a nine-millimeter handgun and nine nine-millimeter bullets. In Jackson's

waistband Mensior found a nine-millimeter handgun. The gun did not contain a 

magazine, but a round was chambered.
4

Based on Jackson's behavior and physical condition, the officer concluded that he 

was under the influence of a controlled substance. A sample of Jackson's urine revealed 

the presence of amphetamine and methamphetamine.

DISCUSSION

The basic issue presented in this case is whether the record discloses that Jackson

was armed with a firearm during the commission of the offenses for which he is serving a 

third strike sentence. Jackson contends he is not ineligible for resentencing because the 

offense for which he was convicted, possession of a firearm by a felon, does not include 

the element of being armed with or using a firearm. Jackson further argues that the 

prosecution in 1995 had the duty to plead and prove that he was armed at the time of the 

offense, and in the absence of a record of such pleading and proof, a retrospective 

determination he was ineligible for resentencing under the Act would violate the 

principles of due process established in Apprendi v. New Jersey (2000) 530 U.S. 466 

(Apprendi) and Blakely v. Washington (2004) 542 U.S. 296. Finally, Jackson contends 

that even if we reject his other arguments, the record is not sufficient to sustain the trial 

court's finding.

A. Proposition 36

In November 2012 the voters enacted a reform of California's Three Strikes Law. 

"The Act changes the requirements for sentencing a third strike offender to an 

indeterminate term of 25 years to life imprisonment. Under the original version of the 

three strikes law a recidivist with two or more prior strikes who is convicted of any new 

felony is subject to an indeterminate life sentence. The Act diluted the three strikes law 
5

by reserving the life sentence for cases where the current crime is a serious or violent 

felony or the prosecution has pled and proved an enumerated disqualifying factor. In all 

other cases, the recidivist will be sentenced as a second strike offender. [Citation.] The 

Act also created a postconviction release proceeding whereby a prisoner who is serving 

an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is 

not a serious or violent felony and who is not disqualified, may have his or her sentence 

recalled and be sentenced as a second strike offender unless the court determines that 

resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)" 

(People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)

The proponents of the Act informed the public in the Voter Information Guide that 

the amendments to the law would do several things. They would (1) revise the three 

strikes law to impose life sentences only when a new felony conviction is serious or 

violent; (2) authorize resentencing for offenders currently serving life sentences if the 

third strike conviction was not serious or violent and the judge determines the sentence 

does not pose an unreasonable risk to public safety; (3) continue to impose life sentence 

penalties if the third strike conviction was for certain nonserious, nonviolent sex or drug 

offenses or involved firearm possession; and (4) maintain life sentence penalties for 

felons with nonserious, nonviolent third strike convictions if the person has prior 

convictions for rape, murder or child molestation. (Voter Information Guide, Gen. Elec. 

(Nov. 6, 2012) p. 48.)

Thus, the thrust of the reform was to modify the three strikes law to allow 

resentencing of or prevent future life sentences for persons whose third strike involves a 
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nonserious or nonviolent felony. The proponents argued the reform would make it easier 

to deal with serious or violent offenders by removing those whose new offenses are not 

serious or violent, thus making room in the prisons for the truly dangerous offenders. 

The proponents, however, assured the public that dangerous felons would continue to 

receive the harsh third strike sentences where certain criteria are met. The criterion at 

issue in this case is whether the defendant was armed with a firearm during the 

commission of his commitment offenses. Persons armed with or using firearms were 

deemed by the proponents of the Act to be dangerous.

Having these principles in mind we turn to Jackson's individual contentions.

B. Possession of a Firearm by a Felon

Jackson contends that conviction of possession of a firearm by a felon does not 

disqualify him from resentencing. The parties agree the offense does not qualify as a 

serious or violent felony. Jackson argues that the offense can be committed without 

being "armed." We agree that physical possession of a firearm is not required to prove 

possession. Such offense can be proved by showing constructive possession of the 

weapon, either directly or through another person. (People v. Sifuentes (2011) 195 

Cal.App.4th 1410, 1417.) On the other hand, being armed means that the defendant had 

the weapon physically available for offensive or defensive use. (People v. Bland (1995) 

10 Cal.4th 991, 1003; People v. Wandick (1991) 227 Cal.App.3d 918, 921; People v.

Fierro (1991) 1 Cal.4th 173, 225.)
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Thus we agree with Jackson that mere proof of conviction for possession does not 

show the defendant was armed during the commission of the offense. Something more is 

required. 

The controlling section in this case is section 1170.126, subdivision (e)(2). It 

makes a defendant ineligible for resentencing if "[d]uring the commission of the current 

offense [he] . . . was armed with a firearm." (§ 667, subd. (e)(2)(C)(iii).) As we will 

discuss below, the section does not require pleading and proof of arming when a 

retrospective examination of the sentence occurs nor does it refer to any requirement to 

establish elements of any of the statutory arming enhancements.

Rather we must follow the direction of the Act to liberally construe its terms to 

accomplish the purposes of the legislation. (Voter Information Guide, supra, text of 

Prop. 36, § 7, p. 110.)

C. Pleading and Proof

A central contention in Jackson's challenge to the trial court's decision is that in 

order to establish he is ineligible for resentencing, the disqualifying criterion must have 

been pled and proved prior to his 1995 conviction. This is required, he argues, because 

the ineligibility "increases punishment" and pleading and proof are required after 

Apprendi, supra, 530 U.S. 466. We disagree.

In Apprendi, supra, 530 U.S. 466, the court held that a defendant could not be 

sentenced to a term, in excess of the statutory maximum for the elements of the offense 

without the pleading and proof of the facts which would give rise to the increased term. 

There the trial court had imposed a term, beyond the statutory maximum for the offense, 
8

based on judicial fact finding that the crime was motivated by racial animus. (See also 

Blakely v. Washington, supra, 542 U.S. 296.) The difficulty with Jackson's argument is 

that he was sentenced to a life term, based upon factors properly pled and proved when 

the prosecution demonstrated Jackson was a third strike offender. Thus, in the 

retrospective examination of the record of conviction the question is not whether to 

increase punishment for the current offense, because that was already lawfully done. 

Rather, the question is whether, based on the manner of the commission of the underlying

offense the prisoner is or is not eligible for a potential reduction of his or her sentence.

In the portion of the Act dealing with prospective application of the three strikes 

law to new cases, the statute requires the prosecution to plead and prove any factor which 

would qualify the defendant for a life term sentence, including, where appropriate, that 

the defendant was armed during the commission of the offense. (§ 667, subd. (e)(2)(C).)

The differences in approach make sense. Prospectively, the prosecution is seeking, in the 

case of nonserious or nonviolent third strikes, to impose a life term, which would not be 

possible without the added factors. On the other hand, in a retrospective analysis of 

sentences, the increased punishment has already been lawfully imposed. We agree with 

the court in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303, in 

finding no requirement of pleading and proof for factors of ineligibility in retrospective 

examination of third strike sentences.

D. The State of the Record

Finally, Jackson contends the record on appeal does not establish he was armed 

during his offenses. We again disagree.
9

The underlying conviction followed a guilty plea. Prior to sentencing, the 

probation officer's report set forth the facts of the offense. The accuracy of that report 

has never been challenged. In addition, at the time of the plea Jackson admitted he had 

physical possession of a nine-millimeter pistol.

As we have noted there is no challenge to the accuracy of the probation report in 

this record. We are satisfied that a trial court reviewing the circumstances of the prior 

conviction could conclude that Jackson had a loaded firearm in his physical possession, 

indeed in his hand, during the commission of his current offenses. The court's finding 

Jackson is ineligible for relief under the Act is supported by the record.

In People v. White (2014) 223 Cal.App.4th 512 (White), this court held that 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 firearm by a felon was 

armed with a firearm during the commission of that offense, the armed-with-a-firearm 

exclusion applies and the defendant is not entitled to resentencing relief under the Reform 

Act." (White, supra, at p. 519.)

In White, supra, 223 Cal.App.4th 512 the record established that the defendant had 

actual physical possession of a firearm at the time of the offense. We distinguished the 

possession offense, which can be committed by constructive possession from those cases 

where the defendant has actual physical possession. We observed that while the "act of 

being armed with a firearm . . . [citation] necessarily requires possession of the firearm, 

possession of a firearm does not necessarily require that the possessor be armed with it. 

For example, a convicted felon may be found to be a felon in possession of a firearm if he 
10

or she knowingly kept a firearm in a locked offsite storage unit even though he or she had 

no ready access to the firearm and, thus, was not armed with it." (Id. at p. 524.) We 

further concluded, "In sum, the record shows the prosecution's case was not based on the 

theory that White was guilty of possession of a firearm by a felon because he had 

constructive possession of the firearm; it was based on the theory that he was guilty of 

that offense because he had actual physical possession of the firearm." (Id. at p. 525.)

Just as was the case in White, supra, 223 Cal.App.4th 512, the record in this case 

establishes that Jackson had actual physical possession of the firearm when he committed 

the current offense. Jackson acknowledges the White decision and a similar decision in 

People v. Superior Court (Kaulick), supra, 215 Cal.App.4th 1279. Jackson simply argues 

both cases were wrongly decided and that we should not follow them. We are familiar 

with both cases and are satisfied they were correctly decided. Hence, we are satisfied the 

record establishes that Jackson was armed with a firearm at the time of the offense and is 

thus ineligible for Proposition 36 resentencing.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

AARON, J.