Opinion
A149232
10-30-2018
THE PEOPLE, Plaintiff and Respondent, v. TRACY CONRAD SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H34847)
Tracy Conrad Smith appeals from a postjudgment order denying his petition for recall of two indeterminate life sentences under Penal Code section 1170.126, enacted as part of the Three Strikes Reform Act of 2012 (Reform Act or Proposition 36). He contends substantial evidence does not support the finding he was armed with a firearm during commission of his third strike offenses. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) We disagree and affirm.
Undesignated statutory references are to the Penal Code.
I. LEGAL BACKGROUND
"Before the [Reform] Act's passage, the 'Three Strikes' law provided that a recidivist offender with two or more qualifying strikes was subject to an indeterminate life sentence if the offender was convicted for any new felony offense." (Teal v. Superior Court (2014) 60 Cal.4th 595, 596, italics added.) "Proposition 36 narrowed the class of third strike felonies for which an indeterminate sentence could be imposed. Now a defendant convicted of a felony outside of that class can receive at most a sentence enhancement of twice the term otherwise provided as punishment for that felony. (§ 1170.12, subd. (c)(2)(C); see People v. Conley (2016) 63 Cal.4th 646, 652.) But Proposition 36 makes a defendant ineligible for this limitation on third strike sentencing if one of various grounds for ineligibility applies. (§ 1170.12, subd. (c)(2)(C).)" (People v. Perez (2018) 4 Cal.5th 1055, 1062 (Perez).) Among those grounds are that "[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), 1170.12, subd. (c)(2)(C)(iii).)
"Proposition 36 also authorizes an inmate currently serving an indeterminate term under the original Three Strikes law to petition the trial court for resentencing. (§ 1170.126, subds. (a), (b).) Upon receiving such a petition, the trial court 'shall determine whether the petitioner satisfies the criteria' for resentencing eligibility, including whether the petitioner's third strike offense was neither serious nor violent. (§ 1170.126, subds. (e), (f).) If the petitioner is found eligible for resentencing, he or she ' shall be resentenced pursuant to [the Reform Act] unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.126, subd. (f).) As with defendants to be prospectively sentenced for a third strike offense, an already sentenced inmate whose third strike was a nonserious, nonviolent felony and who otherwise satisfies the criteria for resentencing is nonetheless ineligible for resentencing if his or her current sentence was imposed for an offense during which he or she 'was armed with a [firearm or] deadly weapon.' (§ 1170.12[, subd.] (c)(2)(C)(iii); see § 1170.126, subd. (e)(2).)" (Perez, supra, 4 Cal.5th at p. 1062.)
When petitioning for resentencing under the Reform Act, " 'the . . . defendant has the initial burden of establishing eligibility, and if that burden is met, then the prosecution has the opportunity to establish ineligibility on other grounds.' [Citation.] Placing the initial burden on the defendant is consistent with the electorate's clear intent that resentencing not be automatic. A defendant must seek out relief, and do so within a specified time period. [¶] Once that initial showing is made by the defendant, the prosecution bears the burden of proving that one of the ineligibility criteria applies." (People v. Frierson (2017) 4 Cal.5th 225, 234 (Frierson).)
"[A] disqualifying factor contained in section 667, subdivision (e)(2)(C)(iii) or section 1170.12, subdivision (c)(2)(C)(iii) need not be pled and proved in the sense of being specifically alleged in an accusatory pleading and expressly either found by the trier of fact at trial of the current offense or admitted by the defendant." (People v. Blakely (2014) 225 Cal.App.4th 1042, 1058; accord, People v. Brimmer (2014) 230 Cal.App.4th 782, 803.) "Although the resentencing provision of section 1170.126 does not expressly reference a standard of proof" (Frierson, supra, 4 Cal.5th at p. 236), our Supreme Court has held the beyond a reasonable doubt standard applies to proof of ineligibility criteria for resentencing. (Id. at pp. 235-236, 238-239; Perez, supra, 4 Cal.5th at p. 1059.) Thus, the prosecution bears the burden of proving beyond a reasonable doubt that a defendant otherwise eligible for resentencing under section 1170.126 is disqualified based on one of the factors listed in section 1170.126, subdivision (e). (Frierson, at pp. 235-236.)
II. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken primarily from the nonpublished opinion in People v. Smith (June 12, 2008, A115906), which upheld Smith's convictions on direct appeal. The nonpublished opinion was submitted by the People as an exhibit to their response to Smith's resentencing petition and is contained in the clerk's transcript of the present appeal.
Wayne Dull rented property on Hayward Boulevard in Hayward that included a house, garage, and tool shed. In April 2003, the property was on the market. Dull was boxing up and organizing his belongings in preparation to move, and he stored antiques, professional tools, and other items in the garage and shed.
On April 3, 2003, Dull left early in the morning for a job in Walnut Creek. The house and shed were locked. Dull planned to go to his brother's house in Oroville after work to store some of the packed items. When he went away for several days, Dull would ask his daughter, Lisa, "to keep an eye on the place" because he had been burglarized in that location. Both Lisa and her fiancé, Richard Viera, had Dull's permission to check on the condition and security of his property.
En route to Oroville, Dull received a phone call from Lisa. She had seen a blue Suburban parked in Dull's driveway. The car was still there on her way home, but it was parked between the garage and tool shed and facing a different direction. The back doors of the Suburban were open as was the garage door. Dull said no one had permission to move his belongings, even if the landlord/owner was showing the property. He asked Lisa and Richard to "check it out."
When Lisa and Richard arrived, the Suburban was still there. When they walked to the garage, Smith was standing on some furniture looking through books on a shelf. Lisa said she was going to call the police and went into the house to use the telephone. The house was ransacked, and the telephone was missing. Lisa went outside hoping to write down the Suburban's license plate number. Richard remained in front of the garage, watching Smith. Smith stepped out and fumbled with something in the car. Richard said to wait there for the police. When Smith exited the vehicle, he seemed more aggressive—his hand was in his jacket, pointing "something" at Richard, and telling Richard to get back. Richard thought Smith might be pointing a gun, so he raised his hands and backed down the hill as Smith came toward him.
Lisa saw Richard and Smith and "scream[ed] hysterically." Smith tripped, and Richard saw a flashlight fall out of Smith's jacket. Richard thought Smith was trying to fool him with a flashlight, so he grabbed Smith, and they struggled down the driveway. Lisa ran to the street hoping to flag someone down with a cell phone. Someone stopped and called the police. Meanwhile, Smith slipped out of his jacket and ran away. Richard found Dull's holstered, loaded handgun about two to three feet from where the flashlight had fallen. Lisa saw Dull's knife in the driveway where Richard and Smith had fallen while struggling.
The police apprehended Smith in a nearby yard. When Dull returned home that evening, he found tools, furniture, and assorted possessions in the Suburban that previously were in the house or tool shed. Dull's firearm had been in the bedroom and a long-bladed ceremonial knife had been displayed in the living room. Inside the Suburban were Smith's checkbook, driver's license, credit cards, and a bill.
Jerry Millard testified for the defense that on April 3, 2003, Smith was working for him on a construction job, arriving in the Suburban around 6:00 a.m. Smith talked with someone in the parking area that morning. Shortly thereafter the Suburban was gone. Smith left for lunch and returned to work the rest of the day. Around 4:30 p.m., Millard gave Smith a ride to a house on Hayward Boulevard. The Suburban was in the driveway. There were "a lot of items in it," "like somebody was moving." Millard dropped Smith off about 5:00 p.m.
Smith was charged by information with first degree residential burglary of Dull's house, burglary of Dull's garage, second degree commercial burglary of Dull's tool shed (§ 459; counts one, two, three), second degree robbery (§ 211; count four), and possession of a firearm by a felon (former § 12021, subd. (a)(1); count five). The information further alleged, in connection with count four, Smith personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). Finally, the information alleged Smith had suffered 13 prior felony convictions and served 12 prior prison terms (§ 667.5, subd. (b)). Two of Smith's prior felony convictions were serious felonies (§ 667, subd. (a)(1)) and "strikes" for purposes of the Three Strikes law (§§ 667, subd. (e), 1170.12, subd. (c)).
Former section 12021, subdivision (a)(1), has since been repealed and reenacted without substantive change as section 29800, subdivision (a)(1).
The jury convicted Smith of burglary of a garage, robbery, and possession of a firearm with a prior felony conviction. He was acquitted of residential burglary and burglary of a tool shed. (§§ 211, 459; former § 12021, subd. (a)(1).) Smith was found not to have used a firearm in the commission of the robbery. All prior conviction allegations were found true. Because Smith had suffered at least two prior serious felony convictions, the court sentenced him to three concurrent terms of 25 years to life, pursuant to the Three Strikes law. (Former §§ 667, subds. (b)-(i), 1170.12.) The court also imposed two consecutive five-year terms stemming from the serious prior felony enhancements. In June 2008, our colleagues in Division Four affirmed the judgment. (People v. Smith, supra, A115906.)
In November 2012, California voters passed the Reform Act. Smith filed a petition for resentencing. In opposing his petition, the People argued Smith was ineligible for Proposition 36 relief because he was armed with a firearm during commission of his offenses. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)
On May 3, 2016, the trial court denied Smith's petition for resentencing, after taking judicial notice, pursuant to Evidence Code section 452, subdivision (d), of "[Smith's] records of conviction in the court file" and Division Four's nonpublished opinion on the direct appeal. The trial court found Smith was armed with a firearm during the commission of both the burglary and felon in possession of a firearm offenses. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) The court explained: "[S]ubstantial circumstantial evidence supports the jury's implied finding that [Smith] was in actual possession of the firearm during the struggle with the victim on the driveway. Because [Smith] had not reached a place of safety when confronted on the driveway, he was in actual possession of the firearm at the time of the burglary. In short, [Smith] was armed with the firearm during the commission of the two offenses." Smith filed a timely notice of appeal.
We are not persuaded review is precluded by Smith's failure to specifically augment the record of the instant appeal to include reporter's transcripts from trial on the underlying convictions. "In ruling on a petition for resentencing, the trial court may consider the entire record of conviction including the transcript of the trial testimony and the appellate opinion affirming the judgment of conviction." (People v. Cruz (2017) 15 Cal.App.5th 1105, 1110.) The parties acknowledge the trial court took judicial notice of "the records of conviction," which we will assume included the trial transcripts. Smith and the People have relied in their briefs on trial testimony contained within transcripts in that record. Thus, on our own motion, we incorporate by reference the record filed in People v. Smith, supra, A115906. (People v. Valdez (2017) 10 Cal.App.5th 1338, 1342, fn. 2; People v. Arevalo (2016) 244 Cal.App.4th 836, 848 ["appropriate procedure" is to examine the inmate's record of conviction to ascertain the conduct underlying his convictions].)
III. DISCUSSION
Pursuant to section 1170.126, an inmate serving a third strike sentence may be eligible for resentencing if his or her current conviction is not for a serious felony or violent felony (see §§ 667.5, subd. (c), 1192.7, subd. (c)), provided the inmate is not disqualified by any of the additional enumerated factors listed in section 1170.126, subdivision (e). Under section 1170.126, subdivision (e)(2), an inmate is statutorily ineligible for resentencing under the Reform Act 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) & 1170.12, subd. (c)(2)(C)(iii), italics added). (Frierson, supra, 4 Cal.5th at p. 231; People v. Estrada (2017) 3 Cal.5th 661, 667-669 (Estrada).) Smith was convicted of being a felon in possession of a firearm and burglary, both nonviolent and nonserious felonies. Smith's eligibility for resentencing turns on whether he was "armed" during the commission of his felon in possession of a firearm and burglary offenses.
Robbery is by definition a serious or violent felony, and it is undisputed Smith was ineligible for resentencing on this count. (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19); People v. Lynn (2015) 242 Cal.App.4th 594, 598-599.) Nevertheless, the presence of a current serious violent offense does not disqualify Smith from resentencing on the other counts. (People v. Johnson (2015) 61 Cal.4th 674, 680.) "The [Reform] Act requires an inmate's eligibility for resentencing to be evaluated on a count-by-count basis." (Id. at p. 688.)
On appeal, Smith contends substantial evidence does not support the trial court's finding he was armed with a firearm during the commission of either offense. The People insist substantial evidence supports a finding Smith had the gun in his jacket pocket during the struggle with Richard or, in the alternative, Smith's proximity to the gun is substantial evidence he had access to it for offensive or defensive use during the burglary and possession offenses.
We review the trial court's factual determination Smith was armed for substantial evidence. (Perez, supra, 4 Cal.5th at pp. 1059, 1066.) " 'We review the whole record in a light most favorable to the [order] to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.' " (People v. Guillford (2014) 228 Cal.App.4th 651, 661.) "We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Jackson v. Virginia (1979) 443 U.S. 307, 319.) In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' (People v. Kraft (2000) 23 Cal.4th 978, 1053.) 'This standard applies whether direct or circumstantial evidence is involved.' " (People v. Avila (2009) 46 Cal.4th 680, 701, italics omitted.)
In challenging the evidence, Smith initially argues his "convictions do not establish" he was armed during the commission of his current offenses. Smith is correct, in an abstract legal sense, that his conviction for possession of a firearm by a felon (former § 12021, subd. (a)) does not necessarily mean he was armed or that the jury found he physically possessed a firearm. At the time of Smith's offense, former section 12021, subdivision (a)(1) provided: "Any person who has been convicted of a felony . . . who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." (Stats. 2002, ch. 830, § 2, p. 5261.) In contrast, the term " 'armed,' " as used in the Reform Act, means having a " 'weapon available for use, either offensively or defensively.' " (Perez, supra, 4 Cal.5th at p. 1065, quoting People v. Bland (1995) 10 Cal.4th 991, 997.)
"[N]ot 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." (People v. Elder (2014) 227 Cal.App.4th 1308, 1313-1314, final italics added.) Constructive possession suffices to establish the elements of possession of a firearm by a felon. (People v. Padilla (2002) 98 Cal.App.4th 127, 138.) "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." (People v. Blakely, supra, 225 Cal.App.4th at p. 1052.)
Smith is thus correct that "a person convicted of being a felon in possession of a firearm is not automatically disqualified from resentencing by virtue of that conviction; such a person is disqualified only if he or she had the firearm available for offensive or defensive use." (People v. Blakely, supra, 225 Cal.App.4th at p. 1048, italics added.) A defendant convicted of violating former section 12021 is also armed with a firearm, as used in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii), "if the defendant had the firearm he or she was convicted of possessing available for use, either offensively or defensively." (Blakely, at p. 1054; accord, People v. Elder, supra, 227 Cal.App.4th at p. 1312; People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 993.) "Hence, while the act of being armed with a firearm—that is, having ready access to a firearm [citation]—necessarily requires possession of the firearm, possession of a firearm does not necessarily require that the possessor be armed with it." (People v. Brimmer, supra, 230 Cal.App.4th at p. 795.)
That a finding Smith was "armed" or physically possessed the gun at the time of the struggle with Richard was not legally required by his felon in possession conviction, however, does not establish that the resentencing court could not reasonably have so found. To the extent Smith contends he is automatically eligible for resentencing simply because the jury was not asked in its verdicts to determine the arming question, his argument is misguided. Since briefing was submitted, our Supreme Court has held the trial court, in finding a defendant armed during commission of a third strike offense, is not limited to facts established by the defendant's judgment of conviction. (Estrada, supra, 3 Cal.5th at pp. 672-673.) Estrada also made clear a court reviewing a recall petition may consider "conduct beyond that implied by the judgment." (Id. at p. 671, italics added.) Such reliance does not violate the right to a jury trial under the Sixth Amendment to the United States Constitution. (Perez, supra, 4 Cal.5th at pp. 1059, 1063.) "[A] factual finding that results in resentencing ineligibility does not increase the petitioner's sentence; it simply leaves the original sentence intact." (Id. at p. 1064.) Accordingly, "the Sixth Amendment does not prohibit trial courts from relying on facts not found by a jury in determining the applicability of Proposition 36's resentencing ineligibility criteria." (Perez, at p. 1064.)
Because our Supreme Court decided a trio of relevant cases after briefing was submitted, we invited the parties to submit supplemental briefing addressing the Supreme Court's decisions in Perez, supra, 4 Cal.5th 1055, Frierson, supra, 4 Cal.5th 225, and Estrada, supra, 3 Cal.5th 661.
Although the trial court framed its consideration of Smith's eligibility for resentencing as an examination of the facts the jury impliedly found, we treat the court's decision as having been based on judicial factfinding. (Perez, supra, 4 Cal.5th at p. 1059, 1063-1064; Estrada, supra, 3 Cal.5th at pp. 671-673.) Substantial evidence supports the trial court's finding Smith physically possessed the gun during the struggle.
It was not necessary for the People to present direct testimony from a witness who saw the gun on Smith's person. Richard and Lisa testified they saw an object that looked like a gun being pointed in Richard's direction from Smith's jacket. This observation came after Smith rummaged around in the Suburban, in which numerous other items from Dull's house were eventually found. Although Richard did not see a gun on the driveway when he arrived at Dull's house (before his struggle with Smith), he found one about two to three feet from the flashlight after Richard struggled with Smith and after Smith had slipped out of his jacket. From this circumstantial evidence, reasonable inferences can be made that Smith carried the gun in his jacket at the time of the struggle. This is not speculation. The trial court's finding is also supported by the People's admission of a jail call recording in which a female voice says, "You know that gun that fell out of your pocket? It was in the holster." Smith's voice responds, "Yeah. Yeah."
Appellate courts have uniformly held the "armed" exclusion applies to Third Strike sentences for unlawful possession of a firearm by a felon if the defendant physically possessed a firearm. (See, e.g., People v. Osuna (2014) 225 Cal.App.4th 1020, 1030, disapproved on another ground in Frierson, supra, 4 Cal.5th at p. 240, fn. 8; People v. White (2014) 223 Cal.App.4th 512, 523-525.) Smith does not challenge the validity of this authority, but merely contends it does not apply because the resentencing court could not make a finding in conflict with the jury's implied findings. He insists the jury could not have found he physically carried the gun on his person due to his acquittal on the residential burglary count and the "not true" finding on the personal use allegation. His position is that, because the People sought to prove Smith's "use" of the firearm under only one factual theory—that Smith had the gun in his pocket and pointed it at Richard in the driveway—the jury's not true finding on the use enhancement means he was pointing something else, such as the flashlight, and did not have physical possession of the gun.
We agree with the People that the jury's "use" finding and the trial court's "armed" finding are not inconsistent. The jury unanimously found the firearm use allegation not true. But there is a distinction between being "armed" with a firearm and "using" a firearm. (See People v. Cruz, supra, 15 Cal.App.5th at p. 1108 [considering "not true" finding on knife use enhancement under § 12022, subd. (b)(1)].) There need not be a " ' "facilitative nexus" ' " between the arming and the underlying offense for a defendant to be ineligible for resentencing under Proposition 36. (Estrada, supra, 3 Cal.5th at p. 670.) "[S]ection 1170.12, subdivision (c)(2)(C)(iii) provides only one express nexus requirement between these general descriptive terms and the inmate's prior offense: the excluding conduct must occur '[d]uring the commission' of the offense. [Citation.] The term 'during' suggests temporal overlap: something that occurs throughout the duration of an event or at some point in its course. (See, e.g., Merriam-Webster's Collegiate Dict. (11th ed. 2003) p. 388 [defining 'during' as 'throughout the duration of' or 'at a point in the course of'].)" (Estrada, at p. 670.) In other words, the Reform Act " 'requires a temporal nexus between the arming and the underlying felony, not a facilitative one.' " (Cruz, at pp. 1111-1112.) The "use" enhancement in section 12022, subdivision (b)(1), on the other hand, "applies only if the [weapon] had a facilitative nexus in the commission of the offense. ([People v.] Bland, supra, 10 Cal.4th at pp. 1001-1003; People v. Brimmer, supra, 230 Cal.App.4th at pp. 794-795.)" (Cruz, at p. 1111.) "[T]he difference in language is significant. . . . Because Proposition 36 looks to whether [the defendant] was armed 'during' the [underlying offense] rather than 'in the commission of it,' the not true finding on the weapon use enhancement does not render [the defendant] eligible for resentencing." (Cruz, at p. 1112.)
At the time Smith committed his offenses, former sections 12022.5, subdivision (a), and 12022.53, subdivision (b), included the same relevant language as is construed in People v. Cruz, supra, 15 Cal.App.5th at page 1111. (See Stats 2002, ch. 126, § 3, p. 693 ["any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment" (italics added)]; Stats 2002, ch. 126, § 4, p. 694 ["any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment" (italics added)].)
To prove the firearm use enhancement, the People were required to show Smith intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. (See People v. Wims (1995) 10 Cal.4th 293, 302.) The jury was so instructed. A firearm is displayed in a menacing manner when it is displayed in order to facilitate the crime: " '[I]f the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the intent of section 12022.5[, subdivision] (a). Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure.' " (People v. Lucas (1997) 55 Cal.App.4th 721, 745.)
Understanding these distinctions, it becomes apparent the trial court's finding Smith physically possessed Dull's gun did not conflict with the jury's "use" finding. Whatever item was pointed at Richard was not visible because it was inside Smith's jacket pocket and thus covered by cloth. Accordingly, Richard and Lisa merely suspected Smith had a gun; neither of them actually saw the gun until after the struggle was over, and Smith had slipped out of his jacket and fled. It also was undisputed the gun was holstered. Thus, the jury could have found Smith had the gun in his jacket at the time he struggled with Richard but have been uncertain about whether Smith pointed the gun at Richard or whether he "displayed" it. As the People put it, the jury could have believed Smith's "possession of the gun did not facilitate the robbery." Smith essentially asks us to rewrite section 1170.126 to provide that the armed-with-a-firearm exclusion does not make him ineligible for resentencing unless he used a firearm in the commission of the offense.
This is not a case like People v. Piper (2018) 25 Cal.App.5th 1007, 1012, or People v. Arevalo, supra, 244 Cal.App.4th at pp. 841-843, 853, where the factfinder acquitted the defendant of being a felon in possession of a firearm and found arming allegations not true. Smith was not acquitted of being a felon in possession of a firearm.
The above analysis also resolves Smith's argument that his burglary offense is eligible for resentencing because "the record did not demonstrate [he] was ever in physical possession of a firearm." Dull testified the gun had been in his bedroom. However, the fact Smith was acquitted of burglarizing Dull's house does not mean the jury concluded Smith only constructively possessed Dull's gun in a place not readily available for offensive or defensive use. The jury could have harbored reasonable doubt regarding who removed the items from Dull's house and placed them in Smith's Suburban. But that does not mean they harbored reasonable doubt that Smith thereafter removed the gun from the Suburban, put it in his jacket, and dropped it on the driveway during his struggle with Richard. Substantial evidence supports a finding the gun was available to Smith for offensive or defensive use at a time the burglary of the garage was ongoing. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 191 ["during the commission of a burglary," as used in § 667.61, subd. (e)(2), "refers to that period of time between the burglar's initial entry with the requisite intent and the burglar's escape to a place of temporary safety"]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 ["for purposes of applying a firearm use enhancement, theft crimes such as robbery [and] burglary . . . continue . . . until the perpetrator has reached a place of temporary safety"].)
We do not mean to suggest there must be circumstantial evidence a firearm was on the inmate's person in order to be "armed," within the meaning of the Reform Act. (See Martinez, supra, 225 Cal.App.4th at pp. 984-985 ["an inmate . . . may be found to have been 'armed with a firearm' in the commission of his or her current offense, so as to be disqualified from resentencing under the [Reform] Act, even if he or she did not carry the firearm on his or her person"].) However, because the trial court's finding is supported, we need not consider the People's alternative arguments.
Smith has not established the trial court found facts inconsistent with those found by the jury. Substantial evidence supports the trial court's factual determination that Smith was armed during the commission of both offenses and therefore ineligible for relief under the Reform Act.
We are unpersuaded by Smith's conclusory assertion, in his supplemental brief, that the evidence does not meet the "beyond a reasonable doubt" standard. Even without the resentencing court explicitly stating it was applying the beyond a reasonable doubt standard, we can infer it did so because it relied on facts impliedly found by the jury. Thus, remand is unnecessary. (Cf. Frierson, supra, 4 Cal.5th at pp. 233, 240 [reversing and remanding for reconsideration under correct standard of proof when trial court applied preponderance standard].)
IV. DISPOSITION
The order denying Smith's petition for resentencing is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.