California Court of Appeal Aug 21, 2015 No. D067203Unpublished
Filed 8/21/15 P. v. Mora CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067203
Plaintiff and Respondent,
v. (Super. Ct. No. SF85947)
DANIEL MORA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Reversed and remanded.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Warren J.
Williams and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Daniel Mora appeals the trial court's order denying his petition to recall his
sentence under the Three Strikes Reform Act. (Pen. Code, § 1170.126.)1 Mora contends
that the trial court erred by concluding that he was armed with a deadly weapon "[d]uring
the commission of" his third strike offense. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd.
(c)(2)(C)(iii).) For the reasons explained below, we agree and reverse the trial court's
cannot fall under the armed-with-a-firearm exclusion "without another separate or
tethering offense"]; People v. Elder (2014) 227 Cal.App.4th 1308, 1312 (Elder) ["For
Purposes of [§] 1170.126, Unlawful Possession of a Firearm Can Constitute Being
Armed During an Offense"].) However, we reject the Attorney General's assertion that
Mora's record of conviction showed that he was armed during the commission of the
third strike offense within the meaning of the applicable statutes.
" '[A]rmed with a firearm' has been statutorily defined and judicially construed to
mean having a firearm available for use, either offensively or defensively." (People v.
Blakely (2014) 225 Cal.App.4th 1042, 1051 (Blakely).) This definition applies to the
arming exclusion to resentencing eligibility at issue in this case. (Ibid.) In People v.
White (2014) 223 Cal.App.4th 512 (White), this court held that where "the record
establishes that a defendant convicted under the pre-Proposition 36 version of the Three
Strikes law as a third strike offender of possession of a firearm by a felon was armed with
the firearm during the commission of that offense, the armed-with-a-firearm exclusion
applies and the defendant is not entitled to resentencing relief under the Reform Act."
(Id. at p. 519.) The defendant's record of conviction in White showed that he was in
physical possession of a deadly weapon and, therefore, had the weapon available for
immediate use at the time of his arrest. (Id. at p. 524.) The same is not true of the facts
contained in Mora's record of conviction.
6
At the time of White's arrest, a search warrant had been issued for his home and he
was under police surveillance. The officers conducting the surveillance saw White
walking toward his truck carrying "a rolled-up cloth (later found to be a pair of
sweatpants) with an object inside. Believing White might be armed, officers moved
toward[] him and drew their guns. White began to run and reached inside the rolled-up
sweatpants he was carrying. He then looked behind him, saw the officers coming
toward[] him, and threw both the sweatpants and the object inside the sweatpants into the
bed of his truck. White was taken into custody, and the object—a loaded Taurus .357-
magnum revolver—was recovered from the bed of the truck. The officers also found
bullets for that gun inside the truck." (White, supra, 223 Cal.App.4th at p. 520.)
White was convicted of possession of a firearm by a felon under former section
12021, subdivision (a). (White, supra, 223 Cal.App.4th at p. 520.) After the trial court
found true sentence enhancement allegations that White had sustained three strike priors
and one prior prison term, the court sentenced him as a third strike offender to 25 years to
life. (Ibid.) White petitioned to recall his life sentence under section 1170.126. At the
hearing on the petition, White's counsel acknowledged that his client had been armed
during the commission of the offense. The trial court denied the petition under the
resentencing eligibility exclusion at issue here. (White, at p. 522.) This court affirmed
the denial, concluding that "the record of conviction establishe[d] that White's life
sentence was imposed because he was in physical possession of a firearm when the police
officers approached him, and, thus, was armed with a firearm during the commission of
his current offense." (Id. at p. 524, italics added.)
7
In reaching this conclusion, the White court noted that while the act of being
armed with a deadly weapon necessarily requires possession of that weapon, the inverse
is not true. (White, supra, 223 Cal.App.4th at p. 524.) "For example, a convicted felon
may be found to be a felon in possession of a firearm if he or she knowingly kept a
firearm in a locked offsite storage unit even though he or she had no ready access to the
firearm and, thus, was not armed with it." (Ibid.) Importantly, White's record of
conviction showed not just "constructive possession" (dominion and control) but that
White "had actual physical possession of the firearm." (Id. at p. 525.)
Constructive possession, therefore, is not sufficient to establish that a defendant is
armed for purposes of the resentencing exclusion at issue here. Rather, the prosecution
must show that the weapon was available for the defendant's immediate use during the
commission of the crime. Other cases that have considered the exclusion have
highlighted this distinction. In Blakely, the Court of Appeal recognized both that the
exclusion does not apply automatically to any conviction for possession of a firearm by a
felon and that "[a] firearm can be under a person's dominion and control without it being
available for use." (Blakely, supra, 225 Cal.App.4th at p. 1052; see Osuna, supra, 225
Cal.App.4th at p. 1030; Elder, supra, 227 Cal.App.4th at pp. 1313-1314 ["[N]ot every
commitment offense for unlawful possession . . . necessarily involves being armed with
the [weapon], if the [weapon] is not otherwise available for immediate use in connection
with its possession, e.g., where it is under a defendant's dominion and control in a
location not readily accessible to him at the time of its discovery."].)
8
Relying on People v. Bland (1995) 10 Cal.4th 991 (Bland), the Attorney General
maintains that Mora need not have been in physical possession of the weapon, and that
his constructive possession of the weapon in this case is sufficient for the resentencing
exclusion to apply. Constructive possession is established by " 'showing a knowing
exercise of dominion and control.' " (White, supra, 223 Cal.App.4th at p. 524.) Mora's
admission that the weapon was his established constructive possession. However, Mora's
constructive possession did not establish that he was armed, i.e., that he had the weapon
"available for use, either offensively or defensively." (Blakely, supra, 225 Cal.App.4th at
p. 1051.)
Bland involved the question whether a defendant could be armed for purposes of a
conviction for a firearm enhancement under section 12022, subdivision (a)(2). The trial
court found that the defendant's constructive possession of a semiautomatic gun was
sufficient to find that he was armed within the meaning of the enhancement statute during
the commission of the underlying offense of possession of cocaine base for the purpose
of sale. The Court of Appeal struck the enhancement because the semiautomatic weapon
was not " 'available' for defendant's use in committing the" underlying felony. (Bland,
supra, 10 Cal.4th at p. 996.) The appellate court's decision was based on the facts that
the weapon was recovered during a search of the defendant's house from under the
defendant's bed (in the same room where the drugs were found), while the defendant was
in police custody outside. (Id. at p. 995.)
The California Supreme Court reversed the Court of Appeal, concluding that from
the "evidence that the assault weapon was kept in defendant's bedroom near the drugs, the
9
jury could reasonable infer that, at some point during the felonious drug possession,
defendant was physically present with both the drugs and the weapon, giving him ready
access to the assault rifle to aid his commission of the drug offense." (Bland, supra, 10
Cal.4th at p. 1000.) The court's decision turned on the fact that the underlying felony of
drug possession was a continuing offense. Because the drug possession offense was
ongoing, the court concluded that it was "immaterial whether defendant was present
when police seized the assault rifle together with the cache of crack cocaine." (Ibid.)
The evidence supported a finding that the defendant "had the firearm available for use in
furtherance of the drug offense at [some point in] time during his possession of the
drugs." (Ibid.)
Unlike the enhancement conviction at issue in Bland, the charge of possession of a
weapon for purposes of the exclusion for being armed with a deadly weapon at issue here
does not require a separate underlying offense to which the arming attaches. For this
reason, the analysis in Bland of what constitutes being armed for purposes of a firearm
enhancement conviction does not align with the analysis of the term in this context.
Indeed, if the term were interpreted in the same manner here, all prisoners convicted of
the offense of felon in possession of a firearm or possession of a deadly weapon in jail
would be automatically excluded from resentencing. Such a result does not comport with
the exclusionary provision's directive that the prosecutor plead and prove that during the
commission of the offense, the defendant was armed with a deadly weapon. (Blakely,
supra, 225 Cal.App.4th at p. 1057.)
10
"To conclude . . . inmates convicted of offenses involving mere possession of a
firearm are ineligible for resentencing, would read out of existence voters'
specification . . . 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.' " (Blakely, supra, 225 Cal.App.4th at
p. 1057.) Rather, to find a prisoner was armed in the commission of an offense, and
therefore ineligible for resentencing, the weapon must be "available for use, either
offensively or defensively." (Bland, supra, 10 Cal.4th at p. 997; Blakely, at p. 1048.)3
III
Mora's record of conviction shows that he was not armed with the shank at the
time he was found to be in possession of the weapon in violation of section 4574,
subdivision (a). The shank was hidden in a location that Mora could not easily access
and it was undisputed that Mora was not present at the time the weapon was discovered.
3 Unlike this case, which involves solely a conviction under section 4574, subdivision (a), cases cited by the Attorney General from the Fifth Appellate District involve convictions for felon in possession of a firearm under former section 12021, subdivision (a) as well as contemporaneous convictions for other serious felony offenses. (See People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 985 [defendant also convicted "of possession of two deadly weapons, both sawed-off shotguns [citation]; possession of heroin [citations]; [and] possession of a controlled substance while armed with a loaded, operable firearm [citation]; . . . and three misdemeanors."]; People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011 [defendant also convicted of "selling heroin [citation], possessing heroin for sale [citation], . . . and making a building available for preparing or storing heroin"].) To the extent the Fifth Appellate District concluded in Elder that constructive possession alone, without a finding that the defendant had the weapon available for immediate use at the time of arrest, is sufficient to preclude resentencing, we disagree. 11
These facts establish that the shank was not available for Mora's immediate use at the
time of the crime. The trial court, therefore, erred by concluding that Mora was armed
with a deadly weapon at the time of the commission of his third strike offense and was
thus statutorily ineligible for resentencing under sections 667, subdivision (e)(2)(C)(iii)
and 1170.12, subdivision (c)(2)(C)(iii).
DISPOSITION
The trial court's order is reversed. The matter is remanded for a determination of
Mora's eligibility for resentencing consistent with this opinion.
AARON, J.
WE CONCUR:
MCDONALD, Acting P. J.
MCINTYRE, J.
12
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant is not 'armed' with a deadly weapon for purposes of the Three Strikes Reform Act's sentencing exclusion unless the weapon was available for the defendant's immediate use, and mere constructive possession is insufficient.
Issues
Whether a defendant convicted of possession of a deadly weapon in jail is statutorily ineligible for resentencing under the Three Strikes Reform Act based on the 'armed with a deadly weapon' exclusion.
Whether constructive possession of a weapon is sufficient to establish that a defendant was 'armed' during the commission of an offense for purposes of the Act's resentencing eligibility.
Disposition. Reversed and remanded.
Quotations verified verbatim against the opinion
“Constructive possession, therefore, is not sufficient to establish that a defendant is armed for purposes of the resentencing exclusion at issue here.”
“The trial court, therefore, erred by concluding that Mora was armed with a deadly weapon at the time of the commission of his third strike offense”