"On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act [or Proposition 36]).
Shortly after the Act went into effect, Mario Lara (defendant), an inmate serving a term of 25 years to life in prison following conviction of felonies that were not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition to recall sentence, seeking resentencing under the Act. The trial court determined defendant did not qualify (was ineligible) for resentencing and denied the petition. Defendant now appeals.
We hold: (1) A trial court's order finding a defendant not eligible for resentencing is appealable; (2) A person convicted of illegally possessing a firearm is not automatically disqualified from resentencing by virtue of such a conviction; rather, the record of conviction must be examined to ascertain the existence of a disqualifying factor; and (3) Disqualifying factors need not be pled and proved to a jury beyond a reasonable doubt. The trial court here erroneously found automatic disqualification. The record on appeal, however, establishes defendant was armed during the commission of his current offenses so we affirm.
On the evening of February 15, 2005, officers responded to a disturbance call in which defendant was identified by name as having pushed the reporting party. Because of the circumstances of the call (possibly a domestic violence situation, which can be very dangerous), the fact the location was in a high crime area, and the need to determine whether defendant was the same "Mario Lara" for whom a no-bail warrant had been issued, Fresno Police Officer Ramirez advised defendant that he needed to pat defendant down. As Ramirez went to grab defendant's arm, defendant pulled away. Defendant's hand grabbed at his waist area and he wrinkled up his shirt, leading Officer Vincent to believe he might be trying to retrieve a weapon. A struggle ensued during which defendant refused to comply with officers' instructions to stop resisting. Finally, when Officer Green pulled out his Taser and threatened to "tase" defendant, defendant submitted and was handcuffed. A loaded .25-caliber semiautomatic pistol was found in defendant's rear pants pocket. A criminal history check revealed defendant was a convicted felon. Two crack pipes were also found in defendant's pockets.
At trial, defendant presented evidence that he had found the gun in the gutter shortly before officers arrived. He picked it up and put it in his pocket, planning to get rid of it either by having his wife call the authorities or by throwing it in a ditch.
On February 22, 2006, a jury convicted defendant of being a felon in possession of a firearm (former § 12021, subd. (a)(1), see now § 29800, subd. (a)(1)), carrying concealed on his person a firearm capable of being concealed after having previously been convicted of a felony (former § 12025, subds. (a)(2) & (b)(1), see now § 25400, subds. (a)(2) & (c)(1)), and two misdemeanors.
On or about April 20, 2013, defendant moved for a recall of sentence and to be resentenced pursuant to section 1170.126. On May 23, 2013, the trial court issued a written order denying the request on the ground defendant's current commitment offense of being a felon in possession of a firearm rendered him ineligible for resentencing. In part, the court found:
Defendant filed a timely notice of appeal.
Both parties say the trial court's denial of defendant's motion is appealable. We agree.
Insofar as is pertinent to this appeal, in order for an inmate to be eligible for resentencing under the Act, his or her current sentence cannot have been "imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." (§ 1170.126, subd. (e)(2).) Thus, an inmate is disqualified from resentencing if, inter alia, "[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
"[A]rmed with a firearm" has been statutorily defined and judicially construed to mean having a firearm available for use, either offensively or defensively. (E.g., § 1203.06, subd. (b)(3); Health & Saf. Code, § 11370.1, subd. (a); People v. Bland (1995) 10 Cal.4th 991, 997 (Bland) [construing § 12022].) "The enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted" (People v. Weidert (1985) 39 Cal.3d 836, 844), "and to have enacted or amended a statute in light thereof" (People v. Harrison (1989) 48 Cal.3d 321, 329). "This principle applies to legislation enacted by initiative. [Citation.]" (People v. Weidert, supra, at p. 844.)
Where, as here, "the language of a statute uses terms that have been judicially construed, `"the presumption is almost irresistible"' that the terms have been used `"in the precise and technical sense which had been placed upon them by the courts."' [Citations.] This principle [likewise] applies to legislation adopted through the initiative process. [Citation.]" (People v. Weidert, supra, 39 Cal.3d at pp. 845-846.) Accordingly, we conclude the electorate intended "armed with a firearm," as that phrase is used in the Act, to mean having a firearm available for offensive or defensive use.
Defendant's current conviction was for violating section 12021, subdivision (a)(1), which, at all times pertinent to this appeal, has made it a felony for a person previously convicted of a felony to own or have in his or her possession or under his or her custody or control, any firearm. The elements of this offense are conviction of a felony and ownership or knowing possession, custody, or control of a firearm. (People v. Snyder (1982) 32 Cal.3d 590, 592; People v. Jeffers (1996) 41 Cal.App.4th 917, 922.)
A firearm can be under a person's dominion and control without it being available for use. For example, suppose a parolee's residence (in which only he lives) is searched and a firearm is found next to his bed. The parolee is in possession of the firearm, because it is under his dominion and control. If he is not home at the time, however, he is not armed with the firearm, because it is not readily available to him for offensive or defensive use. Accordingly, possessing a firearm does not necessarily constitute being armed with a firearm.
The trial court correctly noted that subdivision (e)(2) of section 1170.126 is not a model of clarity, at least insofar as the disqualifying factors contained in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) are concerned. Under the literal language of section 1170.126, subdivision (e)(2), an inmate is disqualified from resentencing if his or her current sentence was imposed for a specified offense. Yet, again as the trial court observed, sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) do not contain actual offenses. Rather, the language of those provisions is more akin to what is usually found in enhancements. In light of this uncertainty and ambiguity, the court properly turned to the electorate's intent to resolve the eligibility question. We do likewise.
"In interpreting a voter initiative like [the Act], we apply the same principles that govern statutory construction. [Citation.]" (People v. Rizo (2000) 22 Cal.4th 681, 685.) "`The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]'" (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) The issue, being one of the interpretation of a statute and its applicability to a given situation, is a question of law we review independently. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; Southern California Edison Co. v. State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8; see People v. Cromer (2001) 24 Cal.4th 889, 894.)
"In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.) We also "`refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' [Citation.]" (People v. Rizo, supra, 22 Cal.4th at p. 685.) "Using these extrinsic aids, we `select the construction that comports most closely with the apparent intent of the [electorate], with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.' [Citation.]" (People v. Sinohui (2002) 28 Cal.4th 205, 212.) "`"The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.]"'" (People v. Mohammed (2008) 162 Cal.App.4th 920, 928.) "`[W]e do not construe statutes in isolation, but rather read every statute "with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness." [Citation.]' [Citation.]" (Horwich v. Superior Court, supra, 21 Cal.4th at p. 276.)
Finally, we take into account the rule of lenity. "`That rule generally requires that "ambiguity in a criminal statute should be resolved in favor of lenity, giving the defendant the benefit of every reasonable doubt on questions of interpretation. But . . . `that rule applies "only if two reasonable interpretations of the statute stand in relative equipoise." [Citation.]' [Citations.]" [Citations.]' [Citation.] `The rule of lenity does not apply every time there are two or more reasonable interpretations of a penal statute. [Citation.] Rather, the rule applies "`only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.'" [Citation.]' [Citation.]" (People v. Nuckles (2013) 56 Cal.4th 601, 611.) "Further, ambiguities are not interpreted in the defendant's favor if such an interpretation would provide an absurd result, or a result inconsistent with apparent legislative intent. [Citation.]" (People v. Cruz (1996) 13 Cal.4th 764, 783.)
An examination of the statutory scheme as a whole supports the conclusion the phrase "[d]uring the commission of the current offense, the defendant . . . was armed with a firearm," as used in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii), and as disqualifies an inmate from resentencing pursuant to section 1170.126, subdivision (e)(2), extends to situations in which the defendant was convicted of violating section 12021 if the defendant had the firearm he or she was convicted of possessing available for use, either offensively or defensively. A conviction for violating section 12021 is insufficient, standing alone, to disqualify a defendant. Rather, the record of conviction must establish arming or one of the other disqualifying factors.
The purpose of the three strikes law has been variously stated as being "`to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses'" (In re Young (2004) 32 Cal.4th 900, 909) and "to promote the state's compelling interest in the protection of public safety and in punishing recidivism" (People v. Gipson (2004) 117 Cal.App.4th 1065, 1070). Although the Act "diluted" the three strikes law somewhat (People v. Yearwood, supra, 213 Cal.App.4th at p. 167), "[e]nhancing public safety was a key purpose of the Act" (id. at p. 175).
In enacting section 1170.126 as part of Proposition 36, the issue before the voters was not whether a defendant could or should be punished more harshly for a particular aspect of his or her offense, but whether, having already been found to warrant an indeterminate life sentence as a third strike offender, he or she should now be eligible for a lesser term. By including as a disqualifying factor an inmate's mere intent, during commission of the current offense, to cause great bodily injury to another person, the electorate signaled its own intent that disqualifying conduct not be limited to what is specifically punishable as an offense or enhancement. Apparently recognizing the maxim expressio unius est exclusio alterius — the expression of some things in a statute necessarily means the exclusion of other things not expressed (Gikas v. Zolin (1993) 6 Cal.4th 841, 852) — voters rendered ineligible for resentencing not only narrowly drawn categories of third strike offenders who committed particular, specified offenses or types of offenses, but also broadly inclusive categories of offenders who, during commission of their crimes — and regardless of those crimes' basic statutory elements — used a firearm, were armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person. Significantly, however, those categories, while broad, are not unlimited. Voters easily could have expressly disqualified any defendant who committed a gun-related felony or who possessed a firearm, had they wanted to do so. This is not what voters did, however.
That our construction of the pertinent statutes comports with voters' intent is supported by the ballot materials related to Proposition 36. We recognize the "OFFICIAL TITLE AND SUMMARY" stated in part that the initiative "[c]ontinues to impose life sentence penalty if third strike conviction was for certain nonserious, non-violent sex or drug offenses or involved firearm possession." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) official title and summary, p. 48, italics added.) Other portions of the materials retreated from such a sweeping pronouncement, however. In summarizing then-existing law, the legislative analysis of Proposition 36 listed, as examples of violent felonies, murder, robbery, and rape; as felonies that were serious but not violent, assault with intent to commit robbery; and as felonies not classified as violent or serious, grand theft (not involving a firearm) and possession of a controlled substance. (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 36 by Legis. Analyst, p. 48.) In summarizing how the initiative measure would shorten sentences for some third strikers, the Legislative Analyst explained there would be some exceptions to the shorter sentence: "Specifically, the measure requires that if the offender has committed certain new or prior offenses, including some drug-, sex-, and gun-related felonies, he or she would still be subject to a life sentence under the three strikes law." (Id. at p. 49, italics added.) The legislative analysis further described how certain current third strikers would be resentenced, but explained that Proposition 36 "limits eligibility for resentencing to third strikers whose current offense is nonserious, non-violent, and who have not committed specified current and prior offenses, such as certain drug-, sex-, and gun-related felonies." (Voter Information Guide, Gen. Elec., supra, at p. 50, italics added.)
In their "ARGUMENT IN FAVOR OF PROPOSITION 36," the measure's proponents spoke in terms of making the punishment fit the crime, saving California money, and making room in prison for dangerous felons. (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) In their "REBUTTAL TO ARGUMENT AGAINST PROPOSITION 36," the proponents stated, in part: "Prop. 36 requires that murderers, rapists, child molesters, and other dangerous criminals serve their full sentences. [¶] . . . [¶] Today, dangerous criminals are being released early from prison because jails are overcrowded with nonviolent offenders who pose no risk to the public. Prop. 36 prevents dangerous criminals from being released early. People convicted of shoplifting a pair of socks, stealing bread or baby formula don't deserve life sentences." (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 36, p. 53, original italics omitted, italics added.)
Section 1 of the proposed law found and declared:
The foregoing materials expressly distinguished between dangerous criminals who were deserving of life sentences, and petty criminals (such as shoplifters and those convicted of simple drug possession) who posed little or no risk to the public and did not deserve life sentences. Although arguably the materials implied virtually any level of firearm involvement would subject a person to a life sentence, we cannot simply look to these materials without taking into account the actual language of the enactment. To conclude, based on the materials, that inmates convicted of offenses involving mere possession of a firearm are ineligible for resentencing, would read out of existence the voters' specification, in the statutory language itself, that disqualification under section 1170.126, subdivision (e)(2) is limited to situations in which, "[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Although the literal language of a statute does not prevail if it conflicts with the lawmakers' intent (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735; People v. Belton (1979) 23 Cal.3d 516, 526), it is nevertheless the most reliable indicator of that intent (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 919). It cannot be ignored. (See, e.g., Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.)
It is clear the electorate's intent was not to throw open the prison doors to all third strike offenders whose current convictions were not for serious or violent felonies, but only to those who were perceived as posing little or no risk to the public. A felon who has been convicted of two or more serious and/or violent felonies in the past, and most recently had a firearm readily available for use, simply does not pose little or no risk to the public. "[T]he threat presented by a firearm increases in direct proportion to its accessibility. Obviously, a firearm that is available for use as a weapon creates the very real danger it will be used." (People v. Mendival (1992) 2 Cal.App.4th 562, 573.) The same cannot necessarily be said about a firearm that is merely under the dominion and control of a person previously convicted of a felony. For instance, a firearm passed down through family members and currently kept in a safe deposit box by one previously convicted of a felony would be under his or her dominion and control, but would present little or no real danger. Thus, the trial court erred by concluding defendant's offense, possessing a firearm as a felon, placed him within the meaning of "armed" for purposes of section 1170.126.
The People implicitly concede the trial court erred by suggesting all offenses involving firearm possession disqualify an inmate from resentencing under the Act, but argue reversal is not required because the facts underlying defendant's conviction demonstrate he was in fact armed with a firearm during commission of his current offense. In support of this claim, the People rely on this court's opinion in defendant's direct appeal.
We agree that we (and trial courts) may examine the record of conviction to determine the existence of disqualifying factors. We see no practical difference between examining the entire record of conviction to ascertain whether, for example, an out-of-state conviction qualifies as a prior serious felony conviction under California law, which is permitted (People v. Woodell (1998) 17 Cal.4th 448, 450-451), and doing so to determine whether an inmate is disqualified from resentencing under the Act.
"[T]he record of the conviction is not limited to the trial court record but extends to the appellate court record, including the appellate opinion." (People v. Woodell, supra, 17 Cal.4th at p. 451, italics omitted.) The trial testimony recited in our opinion on defendant's direct appeal revealed that during his interaction with officers, defendant had a loaded handgun in his pocket, and may have been reaching for it. Accordingly, the record established defendant had a firearm available for offensive or defensive use.
Defendant also argues that he is eligible for resentencing because his current sentence was not imposed for "any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." (§ 1170.126, subd. (e)(2).) Since, he argues, his current offense was not imposed for being armed with or using a firearm, but was instead imposed for mere possession of a firearm, the trial court erred in finding him ineligible for resentencing. We recognize this is the literal language of the statute. As we previously observed, however, the literal language does not prevail if it conflicts with the lawmakers' intent. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735; People v. Belton, supra, 23 Cal.3d at p. 526.) Included in clause (iii) of both statutes is intent to cause great bodily injury to another person. We are aware of no provision criminalizing the mere intent to cause great bodily injury to another person. Since there is no such "offense," we believe the electorate intended the disqualifying factors contained in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii) to have a broader reach than that of defendant's statutory interpretation.
Defendant concedes he had a firearm on his person when he was arrested, but asserts "arming" requires an underlying felony other than mere possession, and the firearm possession must be "tethered" or have a "`facilitative nexus'" to that offense. The problem with defendant's argument is that we are not concerned here with imposition of an arming enhancement — an additional term of imprisonment added to the base term, which cannot be imposed until and unless an accused is convicted of a related substantive offense. (People v. Dennis (1998) 17 Cal.4th 468, 500; see People v. Izaguirre (2007) 42 Cal.4th 126, 134.)
In Bland, supra, 10 Cal.4th 991, the California Supreme Court construed the enhancement contained in section 12022, which imposes an additional term of imprisonment for anyone "armed with a firearm in the commission of" a felony. The court concluded that "a defendant convicted of a possessory drug offense [is] subject to this `arming' enhancement when the defendant possesses both drugs and a gun, and keeps them together, but is not present when the police seize them from the defendant's house[.]" (Bland, supra, at p. 995.) The court elaborated:
As Bland makes clear, for a defendant to be "armed" for purposes of section 12022's additional penalties, he or she must have a firearm "available for use to further the commission of the underlying felony." (Bland, supra, 10 Cal.4th at p. 999, italics added.) "[W]hen the underlying felony is a continuing offense, it is sufficient if the defendant has a gun available at any time during the felony to aid in its commission. [Citation.]" (People v. Becker (2000) 83 Cal.App.4th 294, 297, italics added.)
Having a gun available does not further, or aid in, the commission of the crime of possession of a firearm by a felon. Thus, a defendant convicted of violating section 12021 does not, regardless of the facts of the offense, risk imposition of additional punishment pursuant to section 12022, because there is no "facilitative nexus" between the arming and the possession. However, unlike section 12022, which requires that a defendant be armed "in the commission of" a felony for additional punishment to be imposed (italics added), the Act disqualifies an inmate from eligibility for lesser punishment if he or she was armed with a firearm "[d]uring the commission of" the current offense (italics added). "During" is variously defined as "throughout the continuance or course of" or "at some point in the course of." (Webster's 3d New Internat. Dict. (1986) p. 703.) In other words, it requires a temporal nexus between the arming and the underlying felony, not a facilitative one. The two are not the same. (Bland, supra, 10 Cal.4th at p. 1002 ["`in the commission' of" requires both that "`arming'" occur during underlying crime and that it have facilitative nexus to offense].)
In re Pritchett (1994) 26 Cal.App.4th 1754 illustrates the difference. Pritchett struck his former girlfriend on the head with the barrel of a sawed-off shotgun. He was convicted of possessing the gun under former section 12020, subdivision (a), and his sentence was enhanced, pursuant to section 12022.5, subdivision (a), for use of the firearm in commission of that offense. (Pritchett, supra, at pp. 1755-1756.) On appeal, the People argued the enhancement was valid, because Pritchett used the shotgun to strike the victim in the commission of possessing the gun. (Id. at p. 1757.) The Court of Appeal disagreed, explaining: "Although Pritchett used the shotgun as a club during his possession of it, he did not use it `in the commission' of his crime of possession. Possession was complete without use of the shotgun. In addition to possessing it, he did use it, but using it as a club in no way furthered the crime of possession." (Ibid., fn. omitted.)
Following this reasoning, a defendant may be armed with a firearm during his or her possession of the gun, but not "in the commission" of his or her crime of possession. There is no facilitative nexus; having the firearm available for use does not further the illegal possession of it. There is, however, a temporal nexus. Since the Act uses the phrase "[d]uring the commission of the current offense," and not "in the commission of the current offense" (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the imposition of additional punishment but rather eligibility for reduced punishment, we conclude the literal language of the Act disqualifies an inmate from resentencing if he or she was armed with a firearm during the unlawful possession of that firearm. Taking the literal language and electorate's intent into consideration, no tethering offense or facilitative nexus is required when the eligibility determination is at issue.
Defendant contends the statutory language contains pleading and proof requirements that were not met in his case. In particular, he says that in order to render him ineligible for resentencing, the prosecution must have pled, and the jury found true, a use or arming enhancement in the underlying case.
As amended by the Act, the three strikes law provides in pertinent part that "[i]f a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not [a serious or violent felony as defined in the three strikes law, the defendant shall be sentenced as a second strike offender] unless the prosecution pleads and proves any of the following: [¶]. . . [¶] (iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§§ 667, subd. (e)(2)(C), italics added, 1170.12, subd. (c)(2)(C), italics added.) Thus, when an initial sentencing for a current offense is at issue, there is a clear statutory pleading and proof requirement with respect to factors that disqualify a defendant with two or more prior strike convictions from being sentenced as a second strike offender. (People v. Yearwood, supra, 213 Cal.App.4th at p. 170; see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303, fn. 26 (Kaulick).)
Fairly read, however, section 1170.126 does not impose the same requirements in connection with the determination whether an inmate already sentenced as a third strike offender is eligible for resentencing as a second strike offender. (See Kaulick, supra, 215 Cal.App.4th at pp. 1298-1299, fn. 21.) Subdivision (e) of the statute provides: "An inmate is eligible for resentencing if: [¶] . . . [¶] (2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." (Italics added.) This language does not incorporate the pleading and proof requirements contained in other portions of sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C).
Defendant claims, however, that an inmate seeking resentencing pursuant to section 1170.126 has a Sixth Amendment right to a jury determination, beyond a reasonable doubt, on the question of conduct constituting a disqualifying factor. Subdivision (f) of section 1170.126 expressly provides that, "[u]pon receiving a petition for recall of sentence under this section, the court shall determine whether the petitioner satisfies the criteria in subdivision (e)." (Italics added.)
Of course, constitutional requirements supersede statutory language. Considered in conjunction with each other, the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution require that each element of a crime or sentence enhancement be proved to the jury beyond a reasonable doubt. (United States v. Gaudin (1995) 515 U.S. 506, 509-510; In re Winship (1970) 397 U.S. 358, 364; People v. Jones (1999) 75 Cal.App.4th 616, 631.) In addition, the United States Supreme Court has made clear that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).)
Apprendi and its progeny do not apply to a determination of eligibility for resentencing under the Act. As the Court of Appeal explained in Kaulick, supra, 215 Cal.App.4th 1279:
We recognize that Kaulick was concerned with a trial court's discretionary determination whether an inmate who is eligible for resentencing nevertheless should not be resentenced due to his or her dangerousness. Its reasoning applies with equal force to the initial eligibility determination, however. A finding an inmate is not eligible for resentencing under section 1170.126 does not increase or aggravate that individual's sentence; rather, it leaves him or her subject to the sentence originally imposed. In the case of a third strike offender such as defendant, that sentence is the indeterminate term of 25 years to life in prison that the trial court permissibly imposed, at the time defendant was convicted of his current offense, "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]" (Blakely v. Washington, supra, 542 U.S. at p. 303, italics omitted.) A trial court's determination in the section 1170.126 proceeding that a defendant was armed with a firearm during the commission of his or her current offense does not increase the penalty to which the defendant is already subject, but instead disqualifies the defendant from an act of lenity on the part of the electorate to which the defendant is not constitutionally entitled.
Defendant contends that whether he was armed during commission of his current offense constitutes criminal conduct and, while the trial court determines aggravating and mitigating circumstances for sentencing purposes, it is the jury's function to determine the wrongful conduct for which punishment is to be imposed. Thus, he says, whether he was armed with a firearm had to be found true by a jury beyond a reasonable doubt.
If we were concerned with the propriety of the imposition of additional or aggravated punishment based on the nature of defendant's current conviction, defendant's argument would have merit. (See, e.g., People v. Wilson (2013) 219 Cal.App.4th 500, 503-504, 515-516 [trial court improperly sentenced defendant under three strikes law; court could not have found prior offense constituted strike without resolving factual dispute, and court may not impose sentence above statutory maximum based on disputed facts about prior conduct not admitted by defendant or implied by elements of offense]; People v. Bautista (2005) 125 Cal.App.4th 646, 654-655 [defendant was entitled, under federal constitutional law, to jury determination whether current offense included personal use of firearm so as to make it serious felony for purposes of imposition of § 667, subd. (a) enhancement]; People v. Taylor (2004) 118 Cal.App.4th 11, 22-23, 26-27 [for purposes of imposition of enhancement under § 667, subd. (a), felony that does not qualify as serious felony as matter of law under § 1192.7, subd. (c) may be found to constitute serious felony if prosecution pleads and proves fact necessary to establish statutorily defined conduct; whether prior conviction qualifies as serious felony is question of law for court to determine based on record of conviction, but whether current offense is serious felony is question of fact for jury to decide based on evidence presented at trial]; see also People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192-1193 [because complete denial of opportunity for probation constitutes equivalent of increase in penalty, prior convictions rendering defendant ineligible for probation for current offense must be pled and proved].)
In the present case, however, we are not concerned with the initial imposition of sentence. As we have explained, defendant has already had an indeterminate term of 25 years to life imposed. Although the Act refers to defendant's "current" offense (e.g., §§ 667, subd. (e)(2)(C)(i)-(iii), 1170.12, subd. (c)(2)(C)(i)-(iii)), the offense is "current" only because it is the offense for which he is presently serving a sentence. Cases limiting consideration to the elements of the offense and facts proven to the trier of fact beyond a reasonable doubt do not constrain a court where, as here, the issue is eligibility for a lesser sentence than the one already properly imposed. Like facts invoked to limit the ability to earn conduct credits, facts invoked to render an inmate ineligible for downward resentencing do not increase the penalty for a crime beyond the statutory maximum or alter the legally prescribed punishment so as to aggravate it, and so need not be pled or proved beyond a reasonable doubt. (See People v. Lara (2012) 54 Cal.4th 896, 901, 905-906.)
The judgment is affirmed.
