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People v. Osuna

California Court of Appeals, Fifth District

April 24, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
FLORENTINO FELIX OSUNA, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

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

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COUNSEL

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

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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.

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 Three Strikes Reform Act of 2012 (the Act or Proposition 36) 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

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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 HISTORY [2]

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), now see § 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.

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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 [147 L.Ed.2d 435, 120 S.Ct. 2348] (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 former 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 ...


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