Defendant serving Three Strikes sentence was ineligible for resentencing under the Strike Reform Act of 2012 because he was armed with a gun during his felon in possession of a gun offense. In 2008 Hicks was given a life Three Strikes sentence after his conviction for being a felon in possession of a gun. In 2012, he petitioned for resentencing under the Strike Reform Act. The trial court found him ineligible for resentencing because he was armed with a gun during the offense (Pen. Code, § 1170.126, subd. (e)(2)). When Hicks sought reconsideration of his petition, the court found that the record of conviction, including the Court of Appeal opinion in Hicks’ case, proved that he was armed during his offense. He appealed. Held: Affirmed. In its retrospective application the Act provides for a sentence reduction where the defendant’s life Three Strikes offense was not serious or violent (Pen. Code, §§ 1192.7, subd. (c); 667.5, subd. (c)) and none of the disqualifying factors apply (Pen. Code, § 1170.126, subd. (e)). Here, the question is whether the second disqualifying factor, namely, whether Hicks was armed during the commission of the offense, rendered his offense a serious or violent felony. Defendant claimed the armed finding is appropriate only where there is a substantive offense to which the finding may be attached. However, there is a difference between an armed enhancement and a disqualifying factor under the Act. An enhancement (Pen. Code, § 12022) requires a facilitative nexus between the offense and the arming, i.e., a finding that having the gun available for use furthers the commission of the crime. In contrast, the Act requires only that the defendant be armed during the commission of the offensewhich requires only a temporal nexus between the arming and the offense. That nexus was shown in Hicks’ case.
A trial court may rely on facts set forth in the Court of Appeal opinion to determine whether a defendant was armed during the commission of the commitment offense. The question whether a prior conviction is serious or violent may be determined based on the record of conviction, which includes the Court of Appeal opinion. Although the commitment offense is the “current offense” because a defendant is still serving time for it, it is also a prior conviction for purposes of a postconviction release proceeding because it is final. Thus, the trial court properly considered the facts set forth in the Court of Appeal opinion in denying Hicks’ petition.