Three Strikes Reform Act (Proposition 36) petitioner was “armed with a firearm” within the meaning of the Act and disqualified from resentencing based on his conviction for possession of a controlled substance while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)). In 1997, Martinez was convicted of various offenses, including possession of a controlled substance while armed with a loaded, operable firearm. “Strike” priors were found true and he was sentenced to 25 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 Martinez 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). Martinez was “armed with a firearm” within the meaning of the Act based on his conviction for violating section 11370.1, subdivision (a), which prohibits possession of a controlled substance “while armed with a loaded, operable firearm.” The statute defines “armed with” as meaning “having available for immediate offensive or defensive use.” 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 his section 11370.1, subdivision (a) conviction, Martinez was ineligible for resentencing under the Act as matter of law.
The People are entitled to appeal (or to writ review of) a trial court’s initial finding that an inmate is eligible for resentencing under the Act. Although the Act does not provide the People with a right of appeal, Penal Code section 1238 provides that the People may appeal an order after a judgment affecting the substantial rights of the People. An initial eligibility determination under the Act affects the substantial rights of the People because it affects enforcement of the judgment and it affects the inmate’s status with relation to the judgment. If a trial court determines an inmate is eligible for resentencing, the burden shifts to the prosecution to establish dangerousness. If the prosecution does not establish that the inmate is dangerous, the inmate will be resentenced as a second strike offender. A trial court’s order finding an inmate eligible for resentencing is also properly challenged by writ petition because an appeal is not a plain, speedy, or adequate remedy under the circumstances. Writ review is also appropriate in these circumstances because a trial court exceeds its grant of statutory authority when it finds an inmate eligible for resentencing when that inmate is actually ineligible.