Defendant who was vicariously armed with a firearm based on his codefendant’s possession was ineligible for resentencing under the Three Strikes Reform Act (Prop. 36). Caraballo and Kirksey entered a bank to rob it, but left without doing so. Police saw Kirksey discard a handgun after he exited the bank. A jury convicted Caraballo of second degree burglary and found that he was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1) . Two strike priors were found true and he was sentenced to a life term under the Three Strikes law. After the Three Strikes Reform Act passed, Caraballo petitioned for resentencing as a second strike offender (see Pen. Code, § 1170.126). The court found him ineligible because he had been vicariously armed with a firearm during the commission of the burglary. Caraballo appealed. Held: Affirmed. Under the Reform Act, an inmate is disqualified from resentencing if, during the commission of the current offense, he “was armed with a firearm” (Pen. Code, §§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). Caraballo argued that the word “armed” should not include vicarious arming because the Reform Act was enacted by voter initiative and the voters would not have understood that “armed” encompassed being armed vicariously through another. The Court of Appeal rejected the argument, reasoning that the Reform Act’s ballot materials stated that life sentence penalties would still apply to persons whose third strike convictions “involved firearm possession” or were “gun-related.” The use of the words “involved” and “related” considered together with the Reform Act’s overall purpose to enhance public safety “suggest the electorate would have believed that a person who was vicariously armed with a gun while committing the current felony would remain in prison under the terms of the initiative.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G051036.PDF