Case Information
*1 Filed 2/6/17
CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
THE PEOPLE,
F069140 Plaintiff and Respondent,
(Super. Ct. Nos. F12910379 & v. F13906690)
JESSE EUGENE FRUTOZ,
OPINION Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
“Under the ‘Three Strikes’ law as originally enacted in 1994, an individual
convicted of any felony offense following two prior convictions for serious or violent
felonies was subject to an indeterminate term of life imprisonment with a minimum term
of no less than 25 years. [Citations.] In 2012, the electorate passed the Three Strikes
Reform Act of 2012 (Reform Act or Act) (Prop. 36, as approved by voters, Gen. Elec.
(Nov. 6, 2012)), which amended the law to reduce the punishment prescribed for certain
third strike defendants.” (
People v. Conley
(2016)
Here, Jesse Eugene Frutoz (defendant) had two or more prior serious and/or violent felony convictions that were pled and proved, and his current offense was neither a serious nor a violent felony. If that were the end of the story, defendant’s sentence would be “twice the term otherwise provided as punishment for the current felony conviction.” (Pen. Code, 1 § 1170.12, subd. (c)(1).) In this case, however, the prosecution pled and proved that during the commission of the current offense defendant 1 All further statutory references are to the Penal Code.
was armed with a firearm. 2 As a result, defendant was sentenced to an indeterminate term of life imprisonment. Defendant asserts error. He argues that he was charged with possession of a firearm by a felon, a violation of section 29800, subdivision (a)(1) and, as to that charge, the prosecutor may not plead and prove an allegation under section 1170.12, subdivision (c)(2)(C)(iii). 3 He is incorrect. The People appropriately pled and proved the clause (iii) factor as to the charge of felon in possession of a firearm.
FACTS AND PROCEDURAL HISTORY Fresno County Superior Court case No. F12910379 On December 20, 2012, defendant, then an inmate at the Fresno County Annex Jail, was found to have marijuana hidden in a sock. He subsequently pled no contest to possession of marijuana in a jail facility. (§ 4573.6.) As part of his plea agreement, he admitted having suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and having served four prior prison terms (§ 667.5, subd. (b)).
Fresno County Superior Court case No. F13906690 Sherrie Phillips had previously let defendant stay in the tent she shared with her partner in a homeless camp, but eventually she told him he was no longer welcome. They had an argument that got out of hand and defendant told Phillips not to let him catch her alone, but Phillips did not take the threat seriously.
2
Defendant’s jury made the arming finding under both section 667, subdivision
(e)(2)(C)(iii) and section 1170.12, subdivision (c)(2)(C)(iii). Although each contains the
same language, defendant refers only to the latter provision. For convenience, we do the
same, although our analysis and conclusion apply equally to both. For brevity, we
sometimes refer to the statutory provisions collectively as “clause (iii).”
3
Defendant refers to clause (iii) as an “enhancement.” It is not. As our quotation
of the California Supreme Court’s description in
People v. Conley
makes clear, clause
(iii) is part of the three strikes law as modified by the Reform Act. It has long been
settled that the three strikes law “articulates an alternative sentencing scheme for the
current offense rather than an enhancement. [Citations.]” (
People v. Superior Court
(Romero)
(1996)
On July 7, 2013, Phillips was “dumpster diving” in Fresno when she saw defendant on his bicycle. Phillips talked with defendant in the alley for 10 to 15 minutes, then said she had to go. She turned to pick up something from the ground and, when she stood back up, she felt a “bump.” Defendant was looking at her with a strange expression. In his hand was a small buck knife. Phillips realized she had been cut just above the elbow. She subsequently went to the hospital, where her wound was closed with staples.
Early on the morning of July 15, 2013, Fresno Police Officers Soto and Douangmala were on patrol when they saw defendant riding a bicycle without a headlight. Told to stop, defendant directed the officers’ attention elsewhere and rode off. When the officers caught up to him, defendant threw down his bicycle and a nine- millimeter handgun that came from his front waistband area. He ran. Defendant eventually was located and taken into custody. The gun contained a fully inserted, but unloaded, magazine.
A jury subsequently convicted defendant of assault with a deadly weapon (§ 245, subd. (a)(1); count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), and misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1); count 3). As to count 2, the jury additionally found defendant was personally armed with a firearm during commission of the offense. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Defendant admitted having suffered two prior serious felony convictions that were also strikes (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)) and having served five prior prison terms (§ 667.5, subd. (b)). The court declined defendant’s “invitation” to dismiss his prior strike convictions, and sentenced him to consecutive terms of 25 years to life in prison on counts 1 and 2, plus a total of 13 years pursuant to sections 667, subdivision (a)(1) and 667.5, subdivision (b). The court imposed an additional consecutive term of two years in case No. F12910379.
DISCUSSION 4
Defendant contends the finding with respect to count 2, that he was armed with a
firearm pursuant to section 1170.12, subdivision (c)(2)(C)(iii), must be stricken as an
illegal sentence, because it is inapplicable to a conviction under section 29800,
subdivision (a)(1). Defendant acknowledges a number of courts have rejected this or
similar arguments in the context of eligibility for resentencing under section 1170.126
(e.g.,
People v. Hicks
(2014)
5
The Reform 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)
In
Osuna
,
supra
,
Citing
People v. Bland
(1995)
“Defendant’s current conviction was for violating [former] section 12021, subdivision (a)(1) [now section 29800, 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. [Citations.] ‘A defendant possesses a weapon when it is under his dominion and control. [Citation.] A defendant has actual possession when the weapon is in his immediate possession or control. . . . [Citations.]’ [Citation.] ‘Implicitly, the crime is committed the instant the felon in any way has a firearm within his control.’ [Citation.] “A firearm can be under a person’s dominion and control without it being available for use. For example, suppose a parolee’s residence (in which only he lives) is searched and a firearm is found next to his bed. The parolee is in possession of the firearm, because it is under his dominion and control. If he is not home at the time, however, he is not armed with the firearm, because it is not readily available to him for offensive or defensive use. Accordingly, possessing a firearm does not necessarily constitute being armed with a firearm.” ( , 225 Cal.App.4th at pp. 1029- 1030, fn. omitted.)
Based on the jury instructions given in this case, we know defendant’s jury found, beyond a reasonable doubt, defendant carried the gun and had it available for offensive or defensive use. Thus, factually defendant was “armed with a firearm” within the meaning of clause (iii).
Defendant does not expressly dispute this. Rather, he points to Bland ’s interpretation of section 12022 as support for the proposition the arming must take place during the underlying crime and have some facilitative nexus to that offense, a situation that does not exist where mere unlawful possession of a firearm is concerned.
We again answered this claim in . We explained: “[Defendant] concludes one cannot be armed with a firearm during the commission of possession of the same firearm.
“Defendant would be correct if we were concerned with imposition of an arming enhancement — an additional term of imprisonment added to the base term, for which a defendant cannot be punished until and unless convicted of a related substantive offense. [Citations.]. . . [¶] . . . [¶] “As Bland makes clear, for a defendant to be ‘armed’ for purposes of section 12022’s additional penalties, he or she must have a firearm ‘available for use to further the commission of the underlying felony .’ ( Bland ,10 Cal.4th at p. 999 , italics added.) ‘[W]hen the underlying felony is a continuing offense, it is sufficient if the defendant has a gun available at any time during the felony to aid in its commission . [Citation.]’ [Citation.]
“Having a gun available does not further or aid in the commission of the crime of possession of a firearm by a felon. Thus, a defendant convicted of violating section [29800, subdivision (a)(1)] does not, regardless of the facts of the offense, risk imposition of additional punishment pursuant to section 12022, because there is no ‘facilitative nexus’ between the arming and the possession. However, unlike section 12022, which requires that a defendant be armed ‘ in the commission of’ a felony for additional punishment to be imposed (italics added), the Act disqualifies an inmate from eligibility for lesser punishment if he or she was armed with a firearm ‘ during the commission of’ the current offense (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. The two are not the same. ( Bland , ,10 Cal.4th at p. 1002 [‘ “in the commission” of’ requires both that ‘ “arming” ’ occur during underlying crime and that it have facilitative nexus to offense].)
“ In re Pritchett (1994)26 Cal.App.4th 1754 illustrates the difference. Pritchett struck his former girlfriend on the head with the barrel of a sawed-off shotgun. He was convicted of possessing the gun under former section 12020, subdivision (a), and his sentence was enhanced, pursuant to section 12022.5, subdivision (a), for use of the firearm in commission of that offense. [Citation.] On appeal, the People argued the enhancement was valid, because Pritchett used the shotgun to strike the victim in the commission of possessing the gun. [Citation.] The Court of Appeal disagreed, explaining: ‘Although Pritchett used the shotgun as a club during his possession of it, he did not use it “in the commission” of his crime of possession. Possession was complete without use of the shotgun. In addition to possessing it, he did use it, but using it as a club in no way furthered the crime of possession.’ [Citation.]
“Following this reasoning, defendant was armed with a firearm during his possession of the gun, but not ‘in the commission’ of his crime of possession. There was no facilitative nexus; his having the firearm available for use did not further his illegal possession of it. There was, however, a temporal nexus. Since the Act uses the phrase ‘[d]uring the commission of the current offense,’ and not in the commission of the current offense (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the imposition of additional punishment but rather eligibility for reduced punishment, we conclude the literal language of the Act disqualifies an inmate from resentencing if he or she was armed with a firearm during the unlawful possession of that firearm.” ( Osuna , , 225 Cal.App.4th at pp. 1030-1032.) dealt with eligibility for resentencing under section 1170.126, not
imposition of an initial sentence under the three strikes law as modified by the Reform
Act. Nevertheless, we find it applicable, despite its references to imposition of additional
punishment not being at issue. Even where the initial sentence is concerned, clause (iii)
does not result in the imposition of additional punishment in the sense an enhancement
such as section 12022 does. Rather, the pleading and proof of one of the circumstances
enumerated in clause (iii) abolishes the Reform Act’s presumption a second-strike
sentence will be imposed (see
Kaulick
,
Defendant contends cases such as are wrongly decided, and erroneously
distinguish “during” from “in the commission of.” We are not persuaded. Defendant
also suggests eligibility for resentencing is distinguishable from the imposition of an
initial sentence — making such cases of little value here — because trial courts have
“considerably more discretion” in determining whether a defendant is eligible for
resentencing than in their initial sentencing decisions. To the contrary, it is only after a
trial court determines an inmate’s eligibility for resentencing that the court exercises
discretion in determining whether resentencing that individual would pose an
unreasonable risk of danger to public safety. (§ 1170.126, subds. (e) & (f);
People v.
Bradford
(2014)
Defendant argues possession of a firearm by a felon is not inherently dangerous.
As the Court of Appeal explained in
People v. Elder
, 227 Cal.App.4th at page
1314: “While, as defendant asserts, possession of a gun of itself is not criminal, a
felon’s
possession of a gun is not a crime that is merely
malum prohibitum
. As we stated nearly
20 years ago, ‘public policy generally abhors even momentary possession of guns by
convicted felons who, the Legislature has found, are more likely to misuse them.’
[Citation.]” Thus, just as voters intended the arming provision of clause (iii) to disqualify
*10
from resentencing, pursuant to section 1170.126, subdivision (e)(2), a defendant who was
convicted of violating section 29800, subdivision (a)(1) when he or she also had the
firearm he or she was convicted of possessing available for offensive or defensive use
( , ,
DISPOSITION
The judgments are affirmed.
_____________________ DETJEN, J.
WE CONCUR:
_____________________
HILL, P.J.
_____________________
LEVY, J.
6
Defendant’s reliance on the rule of lenity is unavailing. Contrary to defendant’s
apparent belief, that rule — which generally requires giving a criminal defendant the
benefit of every
reasonable
doubt on questions of statutory interpretation — does not
apply merely because there may be some ambiguity in statutory language. (
People v.
Blakely
, 225 Cal.App.4th at pp. 1054-1055.) Rather, “ ‘the rule applies “ ‘only if
the court can do no more than guess what the legislative body intended; there must be an
egregious
ambiguity and uncertainty to justify invoking the rule.’ ” [Citation.]’
[Citation.] No such uncertainty exists here.” (
People v. Nuckles
(2013)