Opinion
C073673
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. ALAN RICHARD FERGER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 05F07715)
Defendant Alan Richard Ferger appeals from the denial of his Proposition 36 (the Three Strikes Reform Act of 2012) petition for resentencing. (Pen. Code, § 1170.126.) He contends the trial court erred in finding he was armed in the commission of his offense of felon in possession of a firearm and the Sixth and Fourteenth Amendments to the United States Constitution required that any fact rendering him ineligible for resentencing must be made beyond a reasonable doubt by a jury. We shall affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
We take the facts of defendant's crime from our nonpublished opinion (People v. Ferger (Oct. 6, 2009, C059386)), affirming defendant's conviction on appeal. (See People v. Woodell (1998) 17 Cal.4th 448, 451 [the record of conviction includes an appellate opinion disposing of the appeal in the case].)
In 2004 the Federal Bureau of Investigation (FBI) began investigating a Sacramento mosque for possible criminal activity. The investigation's targets were Sifudeen Mateen (also known as Steve Hernandez), the leader of the mosque, and Richard Pulley. FBI Agent Vincent George went undercover and began attending the mosque as Malik McGee, a used car dealer. During that time, he sold cars to both Hernandez and Pulley.
George became acquainted with defendant, whom he knew as Amen. George recorded all of his conversations with defendant. He also wore a transmitter which allowed other agents to hear his conversations. There were usually at least six other agents in the area when George was at the mosque.
On April 30, 2004, defendant asked George if he knew anyone who was looking for a firearm. George said he was interested in one. Defendant told him he had a .380 to sell. He had another weapon, a .22, but that was for someone else. He told George he had to go home to get the .380. George said he had to make a run to get some money. They agreed to meet at the furniture warehouse where defendant worked. Defendant told George the gun had cost him $350 and he would sell it to George for the same amount.
About two-and-a-half hours later, the two met at the furniture warehouse, which was located near the mosque. Defendant said that others in the warehouse had told him the "feds" were in the area. George asked him if he no longer wanted to do the deal. Defendant said he would still go forward.
George went out to his car to get the money. When he returned, defendant had a backpack. He unzipped the backpack and took out the contents: a box containing the .380, a test fire target, a cleaning kit, and some rounds. Defendant explained everything that was in the backpack. He handled the firearm for George to see. After he explained everything, he put the gun back in the box, and put it and the rest of the materials back inside the backpack.
George gave defendant $360. With defendant's permission, George used the backpack to take the gun and other materials to his car. He then returned the empty backpack.
Defendant attempted to sell George more guns afterward. A few days after selling the .380, defendant offered to sell George two Glock semi-automatic pistols. They agreed on a price of $1,600. That deal, however, fell through. In November 2004 defendant offered to sell George a semi-automatic assault rifle. They agreed on a price of $800. That sale also did not occur.
Defendant was convicted of felon in possession of a firearm (former § 12021, subd. (a)(1)) with two prior strikes and sentenced to 25 years to life.
Defendant subsequently filed a section 1170.126 petition for resentencing. The trial court denied the petition in a written opinion, finding it appeared that the preponderance of the evidence standard applied to factual issues concerning eligibility for resentencing, and, relying on the facts stated in our opinion affirming his conviction, that defendant was armed in the commission of his offense. In making its finding, the court stated, "under either the reasonable doubt or the preponderance standard, it is clear from the appellate opinion that defendant was armed with a firearm at the time he possessed the firearm."
DISCUSSION
I
Section 1170.126 allows defendants serving a life term for a third strike to petition for resentencing. (§ 1170.126, subd. (b).) Eligibility for resentencing is initially limited to defendants serving life terms for felonies that are neither serious nor violent. (§ 1170.126, subd. (e)(1).) Other factors can render a defendant ineligible for resentencing. One of the disqualifying factors, as cross-referenced in section 1170.126, subdivision (e)(2), renders an offense ineligible for recall of sentence if "[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).)
Defendant contends he is eligible for resentencing because the trial court erred in finding he was armed in the commission of his offense. He asserts the electorate intended for the armed disqualifier to apply only when it was pleaded and proved the defendant was subject to an arming enhancement. Defendant draws a distinction between possession of a firearm and being armed. Relying on cases addressing the application of firearm enhancements, defendant finds there has to be a "facilitative nexus or connection between the gun and the underlying crime." Since defendant was not charged with a tethering offense, he concludes the armed disqualification did not apply to him because the gun was not available for offensive or defensive use when he sold it to the undercover agent.
"A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citations.]" (People v. Bland (1995) 10 Cal.4th 991, 997, italics omitted.) Contrary to defendant's contention, the issue in a resentencing petition is whether a defendant was armed during the commission of the commitment crime, not whether being armed directly facilitated the crime; the facilitating requirement and proof of a tethering offense is pertinent to sentencing enhancements imposed under section 12022 but it does not apply to resentencing. (People v. Hicks (2014) 231 Cal.App.4th 275, 283-284; see People v. Brimmer (2014) 230 Cal.App.4th 782, 797; People v. White (2014) 223 Cal.App.4th 512, 527.) In other words, a convicted felon who had a weapon available for his or her use while he or she committed the crime of possessing a firearm is not eligible for resentencing under the Three Strikes Reform Act. (People v. Perez (2016) 3 Cal.App.5th 812, 827-828, disapproved on different grounds in People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8; Hicks, at p. 284; Brimmer, at p. 799; People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314; People v. Blakely (2014) 225 Cal.App.4th 1042, 1051-1057 [taking rule of lenity into consideration in so holding]; White, at pp. 525-526.) Section 1170.126 does not predicate ineligibility for resentencing on a true finding on an armed enhancement, and we decline to read one into the statute.
The gun was physically possessed by defendant when he sold it to the undercover agent. It was necessarily available for offensive or defensive use. While, as defendant points out, the firearm was given up by defendant when he completed the sale, he was not convicted of illegal firearm sales but felon in possession of a firearm. As the weapon was in his hands and therefore available for offensive or defensive use, defendant was armed in the commission of his crime, as the trial court properly found.
II
Relying primarily on the Apprendi v. New Jersey (2000) 530 U.S. 466 line of cases, defendant contends any fact rendering him ineligible for resentencing must be found by a jury beyond a reasonable doubt. His claims are resolved by two California Supreme Court cases decided after briefing was concluded in this case.
In People v. Frierson, supra, 4 Cal.5th 225, the Supreme Court held that the People had the burden of proving a defendant is ineligible for resentencing under section 1170.126, and the standard of proof is proof beyond a reasonable doubt. (Frierson, at p. 230.) The proof beyond a reasonable doubt standard is applied to resentencing in this context as a matter of statutory interpretation rather than on constitutional grounds. The Supreme Court concluded, "the parallel construction of the prospective and retrospective portions of the [Three Strikes] Reform Act reflects an electoral intent to apply the same standard for proof of ineligibility for second strike sentencing in both contexts." (Id. at p. 236.)
Defendant's jury trial contention is precluded by People v. Perez (2018) 4 Cal.5th 1055. There, the Supreme Court held "the trial court's eligibility determination may rely on facts not found by a jury; such reliance does not violate the right to a jury trial under the Sixth Amendment to the United States Constitution." (Id. at p. 1059.) The trial court makes its finding based on the record of conviction, and the finding is reviewed on appeal under the deferential substantial evidence standard. (Id. at p. 1066.)
Accordingly, the trial court did not err on relying on facts drawn from the record of conviction to find defendant ineligible for resentencing. The court did err when it stated the People's burden of proving ineligibility was by a preponderance of the evidence. However, since the court found defendant ineligible under both the preponderance and proof beyond a reasonable doubt standards, the error is harmless under both the People v. Watson (1956) 46 Cal.2d 818 and Chapman v. California (1967) 386 U.S. 18 standards.
DISPOSITION
The judgment (order) is affirmed.
RAYE, P. J. We concur: MAURO, J. RENNER, J.