Opinion
B269590
07-29-2016
THE PEOPLE, Plaintiff and Respondent, v. DAMON TERRELL CAMPBELL, Defendant and Appellant.
California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill, and Abtin Amir Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA155118) APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed. California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill, and Abtin Amir Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Damon Terrell Campbell appeals from the trial court's order denying his petition for recall of his indeterminate life sentence pursuant to Proposition 36. The trial court found that he was ineligible for resentencing because he was armed during the commission of his offense. (See Pen. Code, §§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii).) Appellant contends that his conviction for possession of a firearm by a felon does not bar him from relief under Proposition 36. We disagree and affirm.
Unless otherwise specified, all further statutory references are to the Penal Code.
FACTS AND PROCEEDINGS BELOW
In 1997, a police officer saw appellant, a felon, riding his bicycle. When he made eye contact with the officer, appellant withdrew a handgun from his "jacket or waistband area" and held it in his hands. Appellant then dropped the bicycle and ran. While scaling a fence to escape, appellant dropped the weapon. Police arrested appellant and charged him with possession of a firearm by a felon, in violation of former section 12021, subdivision (a)(1). A jury found appellant guilty and also found that he had two prior strike convictions. The court sentenced him under the "Three Strikes" law to an indeterminate term of 25 years to life.
In 2010, the Legislature repealed section 12021 and replaced it with section 29800.
This court affirmed appellant's conviction. (People v. Campbell (Mar. 23, 1999, B119557) [nonpub. opn.].)
In 2012, appellant filed a petition for recall of his sentence under Proposition 36, which provides for relief from indeterminate life sentences under the Three Strikes law for inmates currently serving sentences for nonviolent, nonserious felonies. (§ 1170.126.) The People opposed the petition, arguing that appellant was ineligible for relief because he was armed during the commission of his offense (see § 1170.126, subd. (e)(2)). The trial court agreed and denied the petition. Appellant timely appealed.
The People supported the opposition with excerpts of the transcript from appellant's trial.
DISCUSSION
Appellant argues that his conviction for possession of a firearm by a felon is not a crime excluded from eligibility for resentencing under Proposition 36, and thus, the court erred when it deemed him ineligible for resentencing. We disagree.
Under section 1170.126, an inmate serving an indeterminate life sentence under the Three Strikes law "upon conviction . . . of a felony or felonies that are not defined as serious and/or violent felonies . . . may file a petition for a recall of sentence." (Id., subd. (b).) Subdivision (e)(2) of section 1170.126 creates an exception, providing that an inmate serving a sentence for an offense described in section 667, subdivision (e)(2)(C) is not eligible for resentencing. Among the offenses described in section 667, subdivision (e)(2)(C) are those 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) (subdivision (iii)).)
The trial court found appellant ineligible for resentencing under subdivision (iii) because he was armed with a firearm during the commission of the possession offense. Appellant does not deny he possessed a firearm. He contends, however, that possession of a firearm does not preclude him from eligibility for resentencing under Proposition 36. Appellant argues that subdivision (iii) does not apply when "arming" is an element of the offense; he insists that the arming factor "must attach to the current offense as an addition and not just be an element of the current offense." In addition, appellant asserts that "when Proposition 36 uses the terms 'during the commission' and 'armed with a firearm' in subdivision (iii), it must be construed to require that the weapon be available for use in furtherance of the commission of the [current] offense that is the subject of the recall petition." (Italics omitted.) This, in turn, according to the appellant, requires that the arming factor and the current offense be "separate, but 'tethered' such that the availability of the weapon facilitates the commission of the offense."
Appellant's arguments lack merit. Appellant's underlying premise—that "arming" is an element of his current offense of firearm possession—is wrong. "[P]ossessing a firearm does not necessarily constitute being armed with a firearm." (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052.) A defendant can constructively possess a firearm by knowingly exercising "dominion and control" over the firearm without actually possessing it. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1030 (Osuna) ["[a] firearm can be under a person's dominion and control without it being available for use"]; see also People v. Elder (2014) 227 Cal.App.4th 1308, 1313-1314 (Elder) [observing that "not every commitment offense for unlawful possession of a gun necessarily involves being armed with the gun, if the gun 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"].)
In addition, appellate courts have rejected appellant's interpretation of subdivision (iii) as requiring a current offense to which the arming is "tethered" or to which it has some "facilitative nexus." (See People v. Brimmer (2014) 230 Cal.App.4th 782, 797 (Brimmer); Elder, supra, 227 Cal.App.4th at pp. 1312-1314; Osuna, supra, 225 Cal.App.4th at pp. 1030-1032; People v. White (2014) 223 Cal.App.4th 512, 525.) As the court in Osuna recognized, this interpretation of subdivision (iii) draws an analogy to the case law construing the section 12022, subdivision (a)(1) sentencing enhancement applicable when a person is " 'armed with a firearm in the commission of' a felony." (Osuna, supra, 225 Cal.App.4th at p. 1032; see Brimmer, supra, 230 Cal.App.4th at pp. 794-795 [holding that the section 12022 enhancement applies only "if the gun has a facilitative nexus with the underlying offense (i.e., it serves some purpose in connection with it)"]; accord People v. Bland (1995) 10 Cal.4th 991, 1001-1003 (Bland).)
The analogy to the section 12022 sentencing enhancement, however, does not withstand scrutiny. Proposition 36 turns on whether the defendant was armed "[d]uring the commission of the current offense" (§§ 1170.12, subd. (c)(2)(C)(iii), 667, subd. (e)(2)(C)(iii), 1170.126, subd. (e)(2), italics added)—not, as with the sentencing enhancement, "in [its] commission" (§ 12022, subd. (a)(1), italics added). " 'During' is variously defined as 'throughout the continuance or course of' or 'at some point in the course of.' [Citation.] In other words, it requires a temporal nexus between the arming and the underlying felony, not a facilitative one." (Osuna, supra, 225 Cal.App.4th at p. 1029; see also Elder, supra, 227 Cal.App.4th at pp. 1312-1313 [noting "illogic" of conflating enhancement provision with Proposition 36's ineligibility provision].) As the court in Osuna explained, this difference in language is significant. Thus, the Osuna court concluded that the phrase " 'armed with a firearm' " in subdivision (iii) simply "mean[s] having a firearm available for use, either offensively or defensively." (Osuna, supra, 225 Cal.App.4th at p. 1029.)
Appellant assails the Osuna Court's distinction between "in" and "during," pointing out that in Bland, the Supreme Court used " 'in the commission' of" and " 'during the commission of' " interchangeably to describe the application of the section 12022 enhancement. Appellant's reliance on Bland is misplaced. In Bland, the Court analyzed the application of the section 12022 enhancement in the context of a drug possession offense; the analysis did not require the Court to parse and compare the meaning of the words "in" and "during." (See Bland, supra, 10 Cal.4th at pp. 1001-1003.) Consequently, we discern no significance from the Bland Court's simultaneous use of those terms.
We agree. In accordance with other appellate courts that have examined this issue, we conclude that the language of subdivision (iii) disqualifies an inmate from resentencing under Proposition 36 if he was armed—had a firearm available for use, either offensively or defensively—at the time he committed the felony of illegal possession of a firearm.
Appellant both possessed a firearm and had it available for use—he held the firearm in his hands when police first sighted him, and thus he was "armed" during the commission of the offense for the purposes of Proposition 36. Consequently, the trial court did not err when it denied appellant's petition for recall of his sentence.
DISPOSITION
The order of the trial court is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
LUI, J.