Third strike offender was not eligible for resentencing under the Three Strikes Reform Act (Proposition 36) because he was actually holding a handgun during the unlawful possession of that firearm. In 2010, a jury convicted Osuna of being a felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)) and obstructing a peace officer. Seven prior “strikes” were found true and he was sentenced to 25 years to life under the Three Strikes law. In 2013, he petitioned the trial court for recall of sentence and a new sentencing hearing under the Act (Pen. Code, § 1170.126). The trial court denied the petition, concluding that the jury necessarily found that Osuna was armed with a firearm within the meaning of the Act, and Osuna appealed. Held: Affirmed. Although a section 12021, subdivision (a)(1) conviction does not automatically disqualify an inmate from resentencing under the Act (see the summary for People v. Blakely, F067590 for the court’s reasoning on this point), the facts of defendant’s case support a finding that Osuna had a firearm available for offensive or defensive use and was therefore ineligible for resentencing. The court determined that it could consider the appellate opinion affirming Osuna’s conviction and, according to the opinion, Osuna was actually holding a handgun during the offenses. [Editor’s Note: In a footnote, the court noted that it was not presented in this case with the issue of vicarious arming, which exists when a defendant who is not personally armed is a principal in a crime and another principal is armed, possibly without the defendant’s knowledge.]

A “facilitative nexus” between the arming and the underlying felony is not required. Osuna argued that there must be an underlying felony to which the firearm possession is “tethered” or to which it has some “facilitative nexus” in order to be disqualified from resentencing under the Act. The court rejected this argument. The Act disqualifies an inmate from eligibility for resentencing if he or she was armed with a firearm “[d]uring the commission of” the current offense. During is defined as “throughout the continuance or course of” or “at some point in the course of.” This requires a temporal nexus between the arming and the underlying felony, not a facilitative nexus, and the two are not the same. (People v. Bland (1995) 10 Cal.4th 991, 1002.) Although there was no facilitative nexus between the arming and Osuna’s possession of the firearm, there was a temporal nexus. The court distinguished Penal Code section 12022, which imposes an additional prison term for anyone “armed with a firearm in the commission of a felony” and does require a facilitative nexus.

Factors that disqualify an inmate from resentencing under the Act do not need to be pled and proved. Osuna also argued that the factors disqualifying him from resentencing had to be pled and proved. The court rejected this argument. (See the summary for People v. Blakely, F067590 for the court’s reasoning on this issue.).