Substantial evidence supported trial court’s determination that petitioner was “armed” with a sharp instrument found in his prison cell, and thus ineligible for Proposition 36 resentencing, despite the fact that petitioner was away from his cell taking a shower when the weapon was seized. In 1998, guards found a shank in Valdez’s cell while he was taking a shower. He was ultimately convicted of possession of a sharp instrument while in prison (Pen. Code, § 4502, subd. (a)), a non-serious, non-violent felony, and sentenced to 25 years-to-life under the Three Strikes law. After Proposition 36 passed, Valdez filed a resentencing petition. Among other things, Proposition 36 permits third strike offenders to petition for resentencing when their current offense was neither serious nor violent. Certain third strike offenders are excluded, including offenders who were armed with a deadly weapon “during the commission of the current offense.” The trial court denied Valdez’s petition, finding that that Valdez was armed with a deadly weapon. He appealed. Held: Affirmed. After analyzing Proposition 36 and relevant case law, the Court of Appeal concluded that “a person is armed with a weapon for purposes of the Proposition 36 resentencing exception if the evidence from the record of conviction establishes that he or she was present with the weapon and had it available for use at any time he or she had actual or constructive possession of it within the time period for which the defendant was charged and convicted.” Here, the shank was available to Valdez while he was in his cell before he left to take a shower. Possessory offenses are continuing offenses and “even if it is true that the weapon was not in defendant’s actual physical possession at the precise time it was discovered, this does not necessarily undermine a finding that he was armed with the deadly weapon at other relevant times so as to support the trial court’s determination.” [Editor’s Note: Justice Duarte filed a concurring and dissenting opinion: “The majority opinion erases the distinction between possession where the weapon is readily accessible to a defendant and possession where it is not. In my view, while both are valid theories of possession, only the first is armed possession.”]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C077882.PDF