People v. Osuna, F067498

CourtCalifornia Court of Appeals
Writing for the CourtDETJEN
Citation171 Cal.Rptr.3d 55,225 Cal.App.4th 1020
Docket NumberF067498
Decision Date24 April 2014
PartiesThe PEOPLE, Plaintiff and Respondent, v. Florentino Felix OSUNA, Defendant and Appellant.

225 Cal.App.4th 1020
171 Cal.Rptr.3d 55

The PEOPLE, Plaintiff and Respondent,
v.
Florentino Felix OSUNA, Defendant and Appellant.

F067498

Court of Appeal,
Fifth District, California.

Filed April 24, 2014
Certified for Partial Publication.
*



See 3 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Punishment, § 421B.

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. (Super. Ct. No. F09906451)

John F. Schuck, Palo Alto, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

[225 Cal.App.4th 1026]


INTRODUCTION

“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] ).1 The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. ( §§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” ( People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168, 151 Cal.Rptr.3d 901.)

After the Act went into effect, Florentino Felix Osuna (defendant), an inmate serving a term of 25 years to life in prison following conviction of a felony that was 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.

In the published portion of this opinion, we hold: (1) Disqualifying factors need not be pled and proven to a jury beyond a reasonable doubt; (2) Where

[225 Cal.App.4th 1027]

there are facts in the record of conviction that show an inmate was “armed with a firearm”—had the firearm available for immediate offensive or defensive use—during the commission of his or her current offense, the inmate is disqualified from resentencing under the Act even though he or she was convicted of possessing the firearm, and not of being armed with it; and (3) Being “armed with a firearm” “[d]uring the commission of the current offense,” for purposes of the Act, does not require the possession be “tethered” to, or have some “facilitative nexus” to, an underlying felony. In the unpublished portion, we hold that a trial court's order finding a defendant not eligible for resentencing is appealable.

FACTS AND PROCEDURAL HISTORY2

On the morning of November 5, 2009, defendant, who was driving Yvette Zendejas's car, sped through a school zone at approximately 55 miles per hour and refused to yield to an officer who attempted to pull him over. When defendant finally stopped and got out of the car, he was holding a black handgun in his left hand. He ran down the street and climbed over a fence.

Officers established a perimeter. Approximately 20 minutes later, defendant stepped out of Zendejas's house, which was inside the perimeter, and was arrested. Defendant denied having a gun and said he had been carrying a cell phone. Officers searching the home found a nine-millimeter handgun in an air conditioning duct. The gun's magazine was missing. Officers searching outside the home found a loaded nine-millimeter magazine in the direct path from the fence over which defendant climbed to the house. Officers searching the car found a second nine-millimeter magazine and a coin purse containing additional live nine-millimeter ammunition.

On February 23, 2010, a jury convicted defendant of being a felon in possession of a firearm (former § 12021, subd. (a)(1), see now § 29800, subd. (a)(1)) and obstructing a peace officer in the performance of his or her duties (§ 148, subd. (a)(1)).3 Defendant was found to have suffered seven prior “strike” convictions. On April 6, 2010, he was sentenced to 25 years to life in prison.

[225 Cal.App.4th 1028]

On March 4, 2013, defendant petitioned the trial court for a recall of sentence pursuant to section 1170.126. The People opposed the petition on the ground defendant was “armed with a firearm” during the commission of his current offense and was therefore disqualified from further consideration for resentencing. The People argued the facts of defendant's current offense demonstrated he was armed during commission of that offense; that factual determination need only be made by a preponderance of the evidence and did not include a pleading and proof requirement, so Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi ) was inapplicable; the existence of disqualifying factors was not based on proving or imposing an enhancement, or on the existence of an offense separate from possession of a firearm; and legislative history supported the conclusion defendant was armed. Defendant took the opposite position, specifically arguing simple possession of a firearm was not the same as being armed with a firearm, and the record did not show defendant had a firearm available for offensive or defensive purposes; “arming” required a “tethering felony”; and the drafters of the Act did not intend that a conviction for violating section 12021 would make otherwise eligible defendants ineligible for resentencing.

On June 24, 2013, a hearing was held on defendant's petition. The trial court concluded, based on the facts adduced at the trial of defendant's current offense, that jurors necessarily found defendant personally possessed the firearm and had it available for offensive or defensive use; consequently, defendant was “armed with a firearm” within the meaning of the Act and so was ineligible for resentencing.

DISCUSSION
I. The trial court's ruling is appealable.**II. Defendant was “armed with a firearm” within the meaning of the Act, neither tethering nor a facilitative nexus need be shown, and the trial court did not violate pleading and proof requirements or rules of statutory construction by finding him disqualified from resentencing as a result.

Insofar as is pertinent to this appeal, an inmate is ineligible for resentencing under the Act if his or her current sentence was “imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of

[225 Cal.App.4th 1029]

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, 43 Cal.Rptr.2d 77, 898 P.2d 391 (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, 218 Cal.Rptr. 57, 705 P.2d 380), “and to have enacted or amended a statute in light thereof” (People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078). “This principle applies to legislation enacted by initiative. [Citation.]” (People v. Weidert, supra, at p. 844, 218 Cal.Rptr. 57, 705 P.2d 380.)

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, 218 Cal.Rptr. 57, 705 P.2d 380.) 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 makes it a felony for a person previously convicted of a felony to own, purchase, receive, 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, 186 Cal.Rptr. 485, 652 P.2d 42; People v. Jeffers (1996) 41 Cal.App.4th 917, 922, 49 Cal.Rptr.2d 86.) “A defendant possesses a weapon when it is under his dominion and control. [Citation.] A defendant has actual possession...

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454 practice notes
  • People v. Crockett, C074342
    • United States
    • California Court of Appeals
    • February 19, 2015
    ...; cf. People v. Blakely (2014) 225 Cal.App.4th 1042, 1060, 171 Cal.Rptr.3d 70 [determination of eligibility]; People v. Osuna (2014) 225 Cal.App.4th 1020, 1039–1040, 171 Cal.Rptr.3d 55 [same; both cases citing Kaulick ].)7 Consequently, Apprendi neither 184 Cal.Rptr.3d 254entitles defendant......
  • People v. Valencia, F067946
    • United States
    • California Court of Appeals
    • December 16, 2014
    ...literal language of a statute does not prevail if it conflicts with the lawmakers' intent.... [Citations.]” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1033–1034, 171 Cal.Rptr.3d 55.) “ ‘The apparent purpose of a statute will not be sacrificed to a literal construction.’ [Citation.]” (Cos......
  • People v. Cole, B304329
    • United States
    • California Court of Appeals
    • August 3, 2020
    ...to reduce or eliminate a conviction or sentence that was previously imposed and adjudicated to be valid. ( People v. Osuna (2014) 225 Cal.App.4th 1020, 1040, 171 Cal.Rptr.3d 55 ["A finding [that] an inmate is not eligible for [the postconviction relief at issue] does not increase or ag......
  • People v. Florez, H040327
    • United States
    • California Court of Appeals
    • March 14, 2016
    ...goals. However, the primary purpose of both the three strikes law and Reform Act is to protect public safety. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1036–1037, 171 Cal.Rptr.3d 55.) Therefore, the trial court was not required to weigh the potential to reduce costs by releasing inmates......
  • Request a trial to view additional results
454 cases
  • People v. Crockett, C074342
    • United States
    • California Court of Appeals
    • February 19, 2015
    ...; cf. People v. Blakely (2014) 225 Cal.App.4th 1042, 1060, 171 Cal.Rptr.3d 70 [determination of eligibility]; People v. Osuna (2014) 225 Cal.App.4th 1020, 1039–1040, 171 Cal.Rptr.3d 55 [same; both cases citing Kaulick ].)7 Consequently, Apprendi neither 184 Cal.Rptr.3d 254entitles defendant......
  • People v. Valencia, F067946
    • United States
    • California Court of Appeals
    • December 16, 2014
    ...literal language of a statute does not prevail if it conflicts with the lawmakers' intent.... [Citations.]” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1033–1034, 171 Cal.Rptr.3d 55.) “ ‘The apparent purpose of a statute will not be sacrificed to a literal construction.’ [Citation.]” (Cos......
  • People v. Cole, B304329
    • United States
    • California Court of Appeals
    • August 3, 2020
    ...to reduce or eliminate a conviction or sentence that was previously imposed and adjudicated to be valid. ( People v. Osuna (2014) 225 Cal.App.4th 1020, 1040, 171 Cal.Rptr.3d 55 ["A finding [that] an inmate is not eligible for [the postconviction relief at issue] does not increase or aggrava......
  • People v. Florez, H040327
    • United States
    • California Court of Appeals
    • March 14, 2016
    ...goals. However, the primary purpose of both the three strikes law and Reform Act is to protect public safety. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1036–1037, 171 Cal.Rptr.3d 55.) Therefore, the trial court was not required to weigh the potential to reduce costs by releasing inmates......
  • Request a trial to view additional results

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