Defendant’s prior conviction for possession of a gun by a felon renders him ineligible for Three Strike Reform resentencing because he was “armed” during the time of the offense. Defendant was given a 25-years-to-life third-strike sentence for his 1995 offense of unlawful possession of a gun by a felon. In December 2012 he petitioned for resentencing under the Strike Reform Act (Proposition 36), alleging his commitment offense was neither serious nor violent. The trial court found him ineligible because he was “armed” during the commission of the commitment offense (Pen. Code, § 1170.126, subd. (e)(2)(C)(iii)). Elder appealed. Held: Affirmed. Under section 1170.126, subdivision (e)(2), a defendant is ineligible for resentencing if he was armed during the commission of the crime. “A defendant is armed if the gun has a facilitative nexus with the underlying offense.” The question is “whether possessing a gun can constitute being armed with the gun during the possession.” The offense of felon in possession of a gun requires actual or constructive possession. If the gun is readily accessible for offensive or defensive use, the defendant is armed during the possession. The facts reflect Elder was armed during his offense.

Circumstances rendering a defendant ineligible for Strike Reform Act resentencing are not subject to a pleading and proof requirement. The prospective application of the Act requires the prosecution to plead and prove that the priors and the commitment offense are serious or violent, or come within a qualifying class of cases, in order to render a defendant eligible for a Three Strikes sentence of 25 years to life. (Pen. Code, § 667, subd. (e)(2)(C).) The retrospective relief accorded under section 1170.126 requires the trial court to determine whether the defendant is eligible for resentencing, but contains no express provision regarding pleading and proof of ineligibility in the proceedings underlying the commitment offense. The court also concluded that Blakely v. Washington (2004) 542 U.S. 296 and its progeny do not apply to facts rendering a defendant ineligible for resentencing under the Act.

The facts contained in the Court of Appeal opinion in the commitment case reflect appellant was armed during the commission of the offense. The trial court cited the Court of Appeal’s opinion in the life commitment offense, which reflected that two guns were found in an apartment in which defendant lived. Defendant either actually possessed the guns or jointly possessed them under conditions in which they were readily available for his use. Therefore, he was armed with a gun at the time he possessed it and was ineligible for resentencing.