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Name: People v. White
Case #: D063369
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/28/2014

Appellant is ineligible for resentencing under Penal Code section 1170.126 where the record for his prior conviction of being a felon in possession of a firearm (former Pen. Code, § 12021, subdivision (a)) establishes that he was armed with the firearm in the commission of the offense. In 1995, White was convicted of being a felon in possession of a firearm. Three prior “strikes” were found true and he was sentenced to 25-years-to-life. Following the passage of the Three Strikes Reform Act, White petitioned for resentencing under section 1170.126. The trial court denied the petition, finding that White was ineligible pursuant to section 1170.126, subdivision (e)(2), which excludes from resentencing a defendant who was armed with a firearm in the commission of the current felony. White appealed the order denying his petition. Held: Affirmed. In People v. Bland (1995) 10 Cal.4th 991, the Supreme Court explained that it is the ready access of the weapon that constitutes arming. To be convicted under former section 12021, subdivision (a), the defendant must have a firearm in his possession or under his custody or control. Because the crime may be based on a defendant’s constructive possession of a firearm, a conviction under former section 12021, subdivision (a) does not necessarily lead to a finding that the defendant was armed during the offense. Here, however, the trial evidence showed that White not only possessed the firearm but also that he was armed with the firearm during the commission of the offense under the reasoning of Bland. Police observed White carrying rolled up sweatpants with an object, later found to be a revolver, inside. At trial in closing argument, appellant’s counsel conceded that appellant was armed, as did counsel in the current appeal—the latter stating that “in the plain language of the word . . . he was armed.” The conclusion that appellant was armed is consistent with the intent of the Reform Act.

The arming exclusion under section 1170.126, subdivision (e)(2) is not subject to the pleading and proof requirement. White also argued that the armed-with-a-firearm exclusion had to be pled and proved, which did not occur in his case. The court rejected this argument. Under the prospective provisions of the Reform Act, Penal Code sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C) require the prosecution to plead and prove any of the four enumerated exceptions or exclusions set forth in the subdivisions in order to disqualify a defendant from being sentenced as a second strike offender. Nothing in the language of section 1170.126 addressing an inmate’s petition for resentencing relief references the plead-and-prove language. Further, the pleading and proof requirement is plainly part of the prospective part of the Reform Act; it is not part of section 1170.126, the retrospective part of the Act that governs petitions for resentencing brought by inmates who are already serving an indeterminate life sentence under the Three Strikes law.