People v. Frutoz

Opinion

—“Under the ‘Three Strikes’ law as originally enacted in 1994, an individual convicted of any felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of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) 63 Cal.4th 646 , 651 [ 203 Cal.Rptr.3d 622 , 373 P.3d 435 ].) “The Reform Act changed the sentence prescribed for a third strike defendant whose current offense is not a serious or violent felony. [Citation.] Under the Reform Act’s revised penalty provisions, many third strike defendants are excepted from the provision imposing an indeterminate life sentence (see Pen. Code, § 1170.12, subd. (c)(2)(A)) and are instead sentenced in the same way as second strike defendants (see id., subd. (c)(2)(C)): that is, they receive a term equal to ‘twice the term otherwise provided as punishment for the current felony conviction’ (id., subd. (c)(1)). A defendant does not qualify for this ameliorative change, however, if his current offense is . . . one in which he used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury (id., subd. (c)(2)(C)(iii)).” (Id. at pp. 652-653.) “The Act provides that these disqualifying factors must be pleaded and proved by the prosecution. ([Pen. Code,] § 1170.12, subd. (c)(2)(C).)” (Id. at p. 653.)

Here, Jesse Eugene Frutoz (defendant) had two or more prior serious and/or violent felony convictions that were pled and proved, and his current

Based on the jury instructions given in this case, we know the 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 proposihon 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 Osuna. 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, supra, 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

“In re Pritchett (1994) 26 Cal.App.4th 1754 [ 33 Cal.Rptr.2d 296 ] 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, supra, 225 Cal.App.4th at pp. 1030-1032.)

Osuna 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

Defendant contends cases such as Osuna 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) 227 Cal.App.4th 1322 , 1336-1337 [ 174 Cal.Rptr.3d 499 ].)

Defendant argues possession of a hrearm by a felon is not inherently dangerous. As the Court of Appeal explained in People v. Elder, supra, 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 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 hrearm he or she was convicted of possessing available for offensive or defensive use (Osuna, supra, 225 Cal.App.4th at p. 1035), so too they intended that provision to subject a third strike offender to an