A conviction of being a felon in possession of a firearm does not automatically disqualify an inmate from resentencing under the Three Strikes Reform Act (Proposition 36); the arming exclusion applies only if the firearm was available for offensive or defensive use. In 2004, Blakely was charged with drug and firearm offenses after he fatally shot a man in self-defense. As part of a slow plea, he stipulated that he had possession of a handgun on the day of the killing and stipulated to the existence of two “strike” priors. The court found him guilty of being a felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)(1)), found the strike priors true, and sentenced him to 25 years to life under the Three Strikes law. In 2012, he petitioned the trial court for a recall of sentence under the Act (Pen. Code, § 1170.126). After a hearing, the trial court concluded that Blakely was ineligible for resentencing because he was armed with and used a firearm in the commission of his current offense. Blakely appealed. Held: Remanded for a new eligibility hearing. Under section 1170.126, subdivision (e), an inmate is ineligible for resentencing if he or she was “armed with a firearm” within the meaning of Penal Code sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). Cases and statutes have defined “armed with a firearm” to mean “having a firearm available for use, either offensively or defensively.” Under this definition of armed, a section 12021, subdivision (a)(1) conviction does not automatically disqualify an inmate from resentencing under the Act. This statute prohibits a felon from owning or possessing a firearm, or having custody or control of any firearm. A person may have control of a firearm even if it is not available for use. The conclusion that possessing a firearm does not necessarily constitute being armed with a firearm comports with the electorate’s intent in enacting Proposition 36.
Factors that disqualify an inmate from resentencing under the Act do not need to be pled and proved. During the hearing on Blakely’s petition, the trial court decided that it could look to the overall facts and circumstances of the case to determine whether Blakely was armed and therefore ineligible for resentencing. On appeal, Blakely argued that the trial court erred by considering facts that were neither pled nor proved to find him ineligible for resentencing. The court disagreed. “[A] disqualifying factor contained in section 667, subdivision (e)(2)(C)(iii) or section 1170.12, subdivision (c)(2)(C)(iii) need not be pled and proved in the sense of being specifically alleged in an accusatory pleading and expressly either found by the trier of fact at trial of the current offense or admitted by the defendant.” While the Act requires the prosecution to plead and prove disqualifying factors when an initial sentencing occurs after the Act’s effective date, section 1170.126 does not impose the same requirements in connection with resentencing an inmate already sentenced as a three strike offender. Disqualifying factors may be shown through a formal element of the offense or enhancement, or the evidence presented at trial or during the plea proceedings. The court may also examine relevant, reliable, and admissible portions of the record of conviction. The court rejected Blakely’s argument that an inmate seeking resentencing under the Act has a Sixth Amendment right to a jury determination on disqualifying factors. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279.) Kaulick’s reasoning applies to the initial eligibility determination. A finding that an inmate is not eligible for resentencing does not increase or aggravate the inmate’s sentence.