Inmate was ineligible for resentencing under the Three Strikes Reform Act of 2012 (Prop. 36) even though punishment for the disqualifying offense was stayed under Penal Code section 654. Soto was convicted in 1998 of possession of a controlled substance (count 1), transportation (count 2), and possession of a firearm (count 3). As to count 2, the jury found true an allegation that Soto was personally armed with a firearm. Soto admitted two prior strike convictions. On count 1, Soto was given a three strikes life sentence. An identical term was imposed on count 2, but it was stayed under section 654. After Proposition 36 was enacted, Soto filed a petition for resentencing. The trial court denied the petition, finding Soto ineligible because he was armed with a firearm during the commission of his offense (Pen. Code, § 1170.126, subd. (e)(2)(C)(iii)). On appeal, Soto conceded that the arming allegation on count 2 would disqualify him from resentencing, but argued that, because the sentence for that count was stayed, he was not “serving” a sentence for it and therefore he was not disqualified from resentencing. Held: Affirmed. Section 1170.126, subdivision (e)(2) states that an inmate is eligible for resentencing if the “inmate’s current sentence was not imposed for any of the offenses” listed in the referenced statutes. A sentence that has been stayed under section 654 has nevertheless been imposed and is still part of a defendant’s “current sentence.” For purposes of three strikes sentencing, a stayed sentence still qualifies as a strike and a stay does not expunge the conviction. Soto was ineligible for resentencing because the words “current sentence” in section 1170.126, subdivision (e)(2) necessarily included the stayed sentence on count 2.

Soto is not eligible for resentencing under Prop. 36 on count 1 because count 2 rendered him ineligible. Soto also argued that he was eligible for resentencing on count 1 (possession of a controlled substance) because, standing alone, it qualifies him for resentencing. The appellate court disagreed. Soto did more than possess a controlled substance—he transported the substance while personally armed. His conviction of count 2 with its armed allegation made him ineligible for resentencing under Prop. 36 and this conviction remains in effect even though the sentence was stayed under section 654. Resentencing Soto on count 1 would change nothing and would be an idle act.