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Name: People v. Superior Court (Cervantes)
Case #: F066969
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 04/24/2014
Summary

Three Strikes Reform Act (Proposition 36) petitioner who was found to be “personally armed with a firearm” in the commission of his current offense (Pen. Code, § 12022, subd. (c)) was armed with a firearm within the meaning of the Act and disqualified from resentencing. In 1996, Cervantes was convicted of various offenses, including possessing heroin for sale. The jury found true an allegation that Cervantes was personally armed with a firearm in the commission of the offense (Pen. Code, § 12022, subd. (c)). “Strike” priors were found true and he was sentenced to 50 years to life under the Three Strikes law. In 2012, he petitioned the trial court for recall of sentence and a new sentencing hearing under the Act (Pen. Code, § 1170.126). The trial court rejected the People’s argument that Cervantes was ineligible and set a resentencing hearing. The People petitioned for a writ of prohibition and/or mandate overturning the trial court’s ruling. Held: Petition granted. Under section 1170.126, subdivision (e), an inmate is ineligible for resentencing if he or she was “armed with a firearm” within the meaning of Penal Code sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). Cervantes was “armed with a firearm” within the meaning of the Act based on the jury’s finding on the section 12022, subdivision (c) allegation. A person is “armed with a firearm” within the meaning of this statute if he or she “has the specified weapon available for use, either offensively or defensively.” (People v. Bland (1995) 10 Cal.4th 991, 997.) Applying rules of statutory construction, the court adopted this definition for purposes of the Act. Thus, a defendant was “armed with a firearm” and ineligible for resentencing under the Act if he or she had the firearm available for immediate offensive or defensive use. The defendant may be armed within the meaning of the Act even if he or she did not physically carry the firearm on his or her person. Based on the true finding on the section 12022, subdivision (c) allegation, Cervantes was ineligible for resentencing under the Act as matter of law.