Defendant convicted of possession of a firearm by a felon was “armed” during his offense and therefore ineligible for resentencing under the Three Strikes Reform Act (Prop. 36). In 1996 White was convicted of possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)) and two strike priors were found true. He received a life Three Strikes sentence. In 2013, he petitioned to recall his sentence under Proposition 36. The trial court denied the petition because White was armed during the commission of the offense, a disqualifying factor (Pen. Code, § 1170.126, subd. (e)(2)). White appealed, claiming that a “possessory” offense cannot support a finding he was armed during its commission. Held: Affirmed. Penal Code section 1170.126 was enacted by voters as part of the Three Strikes Reform Act. It provides a procedure by which qualified defendants may petition for recall and reduction of their life Three Strikes sentence. One of the disqualifying factors is that the defendant was armed with a firearm during the commission of the offense. (See Pen. Code, § 1170.126, subd. (e)(2)). The Court of Appeal here agreed with the reasoning in People v. Osuna (2014) 225 Cal.App.4th 1020 and determined that Proposition 36 does not require evidence that the arming have a “facilitative nexus” to the commission of the offense. Instead, a defendant is “armed” when the gun is readily accessible to him during the offense. The evidence at trial showed that White either placed a revolver he had been carrying into a trash can before he was stopped by police, or that he knew where the gun was hidden when he walked by the trash can. Under either of these circumstances, the gun was readily accessible to him. He was therefore armed during his possession of the firearm and disqualified from resentencing under Proposition 36.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G050478.PDF