Prosecution may plead and prove “armed with a firearm” allegation when defendant is charged with possession of a firearm by a felon in order to preclude defendant from being sentenced as a second strike offender under Proposition 36. Defendant Frutoz was convicted of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), and the jury found true an allegation that he was personally armed with a firearm during the commission of the offense (Pen. Code § 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)). He admitted having two prior strike convictions, and was sentenced to a term of 25 years to life. Defendant appealed, arguing that the prosecution may not plead and prove an arming allegation under section 1170.12, subd. (c)(2)(C)(iii) when a defendant is charged with possession of a firearm by a felon in order to preclude more favorable sentencing under Proposition 36. Held: Affirmed. Proposition 36 amended the Three Strikes law to permit third strike offenders whose current offense is not a serious or violent felony to be sentenced as a second strike offender. However, a defendant does not qualify for this ameliorative change if his current offense is one in which he was armed with a firearm (Pen. Code § 1170.12, subd. (c)(2)(C)(iii)), meaning that he had “a firearm available for use, either offensively or defensively.” This disqualifying factor must be pleaded and proved by the prosecution. In defendant’s case, the jury found beyond a reasonable doubt that defendant carried a gun and had it available for offensive or defensive use and, as a result, he was not eligible to be sentenced as a second strike offender. The court determined that People v. Osuna (2014) 225 Cal.App.4th 1020 foreclosed defendant’s arguments that the arming provision should not apply to the crime of being a felon in possession of a firearm.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F069140.PDF