P. v. Stefflre

Filed 3/6/17 P. v. Stefflre CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ALAIN STEFFLRE,
Defendant and Appellant.
B267915
(Los Angeles County
Super. Ct. No. LA017901)
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Cheryl Lutz, 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 Analee J. Brodie, Deputy
Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Defendant Alain Stefflre was convicted in 1994 of
unlawfully driving or taking a vehicle, recklessly evading an
officer, and several related crimes. Based on his prior
convictions, he was sentenced to multiple terms of 25 years to life
in prison as a third strike offender. He now appeals from the
postjudgment order denying his petition for resentencing under
Penal Code section 1170.126,1 enacted by Proposition 36, the
Three Strikes Reform Act of 2012 (Proposition 36). The trial
court found defendant was “armed” during the commission of his
underlying crimes and therefore was ineligible for resentencing
under Proposition 36. We reject his challenges to that ruling and
affirm the order.
FACTUAL AND PROCEDURAL HISTORY
In People v. Stefflre (December 27, 1995, B090079 [nonpub.
opn.]), we affirmed defendant’s current conviction and described
the following underlying facts: On May 12, 1994, a 1990 Lincoln
was stolen during a residential burglary in Encino. On June 22,
1994, Shirley Finston returned to her Tarzana home to find the
Lincoln parked backward in her driveway with the trunk open. A
man wearing black gloves ran from in front of the residence,
jumped in the Lincoln and drove away. Finston took down the
license number. She entered her home and found that various
items had been stolen; her husband then called the police. About
45 minutes later, defendant, driving the Lincoln, recklessly fled
at high speeds during a Highway Patrol pursuit and flipped the
car at an exit ramp. Some of the property taken from the Finston
residence was discovered in the Lincoln.
1 All further code citations are to the Penal Code unless otherwise
indicated.

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In addition, our review of the trial transcripts reveals the
following pertinent facts: During trial, California Highway
Patrol officer David Derczo testified regarding his pursuit of
defendant on June 22, 1994. After defendant’s vehicle flipped
over, Officer Derczo saw defendant exit the vehicle and begin to
run on foot. Defendant dropped a knife as he was running.
Officer Derczo testified that the knife appeared to be attached to
defendant’s pants in some fashion; he saw defendant “grab[] at
his pants” and then the knife fell from the same “general area.”
After Officer Derczo caught and detained defendant, he walked
defendant back to the crash scene, retrieving the knife from the
sidewalk along the way. The knife blade was fixed,
approximately seven inches long, and sharpened on both sides.
During questioning after his arrest, defendant denied any
knowledge of a knife.
On November 7, 1994, a jury convicted defendant of three
felonies: unlawfully driving or taking a vehicle (Veh. Code, §
10851, subd. (a)), unlawfully evading an officer with reckless
disregard for safety (Veh. Code, § 2800.2), and receiving stolen
property (§ 496, subd. (a)).2 In a bifurcated trial, a jury found
true that defendant had multiple prior convictions for residential
burglary, which qualified as serious or violent felonies under the
Three Strikes Law. (See §§ 1170.12, subds. (a)-(d); 667, subds. (b)-
(i).) Consequently, the trial court sentenced defendant to
concurrent prison terms of 25 years to life on the three felony
counts for which he was convicted (§ 667, subd. (e)(2)(A)(ii)), and
a concurrent term of six months for the misdemeanor.
2 Defendant previously pled guilty to a misdemeanor
offense of giving false information to an officer (§ 148.9, subd.
(a)).

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We affirmed defendant’s conviction in December 1995.
Following habeas proceedings in 1996, the trial court resentenced
defendant, striking the third strike enhancements as to two
counts, leaving only one term of 25 years to life for his conviction
for unlawfully taking or driving a vehicle pursuant to Vehicle
Code section 10851.
In November 2012, voters adopted Proposition 36, which
prospectively limited the imposition of indeterminate life
sentences under the Three Strikes Law by amending sections 667
and 1170.12. Prior to Proposition 36, a defendant with two or
more prior convictions for serious or violent felonies (see §§ 667.5,
1192.7) who also was convicted of any new felony was subject to
an indeterminate life sentence. (People v. Yearwood (2013) 213
Cal.App.4th 161, 167.) Pursuant to Proposition 36, life sentences
are reserved “for cases where the current crime is a serious or
violent felony or the prosecution has pled and proved an
enumerated disqualifying factor.” (Ibid.) Proposition 36 also
established a postconviction relief process “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.)” (Id. at p. 168.)
In January 2013, defendant filed a petition requesting
recall of his sentence pursuant to section 1170.126. In October
2015, the trial court denied the petition on the ground that
defendant was ineligible for resentencing under the disqualifying
provisions of Proposition 36 because he was “armed with a deadly
weapon, a knife” “during the commission of the [] offense.” (§§

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667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126,
subd. (e).) Specifically, the court found that defendant dropped a
knife after he exited the Lincoln and fled on foot from police.
Defendant timely appealed from the order denying his
petition for resentencing.
DISCUSSION
Pursuant to section 1170.126, subdivision (e)(2), an inmate
is ineligible for resentencing if, “during the commission” of the
underlying 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),
1170.126, subd. (e)(2).) Defendant asserts the trial court erred in
the following respects: (1) relying on the record of conviction to
conclude defendant was “armed,” which required the court to
make “a new finding of fact” that “went beyond the ‘nature or
basis’ of the conviction”; (2) applying an incorrect standard of
proof, namely, preponderance of the evidence, rather than beyond
a reasonable doubt; and (3) concluding that defendant was
“armed” during the commission of his underlying offense, despite
the lack of a “facilitative nexus” between his crimes and his
possession of the knife. We follow the majority of decisions by
this court and our sister courts in rejecting these arguments.
I. Nature of Factual Findings for Determination of
Ineligibility
Defendant argues that the trial court erred in making a
factual finding that he was armed with a knife in connection with
his request for resentencing, because in doing so, the court made
a new factual finding never determined by the jury.
He acknowledges that the trial court may “properly rely on the
record of conviction,” including transcripts of the trial, in

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determining eligibility under Proposition 36. (See People v.
Bartow (1996) 46 Cal.App.4th 1573.) However, citing People v.
Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero) and other cases,
defendant argues that the court’s inquiry into the record is
limited to determining “the nature or basis of the crime of which
the defendant was convicted.” Here, because the trial court made
a factual finding regarding his possession and use of a knife that
was neither expressly decided by the jury nor necessary to the
underlying conviction, defendant argues the court exceeded the
bounds of proper inquiry.
We are not persuaded. As we previously held in People v.
Frierson (2016) 1 Cal.App.5th 788, 791-792, rev. granted October
19, 2016, S236728 (Frierson)), “[i]n determining an inmate’s
eligibility for recall and resentencing under Proposition 36, the
trial court may examine all relevant, reliable and admissible
material in the record to determine the existence of a
disqualifying factor. (People v. Blakely (2014) 225 Cal.App.4th
1042, 1048, 1051.)” Indeed, “Proposition 36, on its face, does not
dictate that any of the triad of disqualifying factors must be an
element of the current offense or a sentence enhancement or that
such disqualifying factors must be pled and proved as such to the
trier of fact. Its plain and clear language reflects a contrary
intent. Subdivision (f) of section 1170.126 expressly provides:
‘Upon receiving a petition for recall of sentence under this
section, the court shall determine whether the petitioner satisfies
the criteria in subdivision (e).’ (Italics added.)” (People v.
Newman (2016) 2 Cal.App.5th 718, 724, rev. granted November
22, 2016, S237491 (Newman).)
Further, “these disqualifying factors are not a subject for a
jury to determine, because they do not cause an increase in

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punishment beyond the statutory punishment for the current
offense. Proposition 36 operates to decrease a defendant's
punishment and therefore is ‘“an act of lenity.”’ [Citation.] The
Sixth Amendment right to jury trial therefore is not implicated.”
(Newman, supra, 2 Cal.App.5th at p. 724.) Numerous other
courts have similarly concluded that a trial court may
independently examine the record of conviction in order to make
determinations regarding eligibility facts. (See, e.g., People v.
White (2014) 223 Cal.App.4th 512, 526-527 (White); People v.
Osuna (2014) 225 Cal.App.4th 1020, 1040 (Osuna); People v.
Manning (2014) 226 Cal.App.4th 1133, 1139-1144; People v. Elder
(2014) 227 Cal.App.4th 1308, 1314-1316 (Elder); People v.
Bradford (2014) 227 Cal.App.4th 1322, 1338-1340; People v.
Brimmer (2014) 230 Cal.App.4th 782, 799-801 (Brimmer); People
v. Hicks (2014) 231 Cal.App.4th 275, 286 (Hicks).)
Defendant’s reliance on Guerrero, supra, 44 Cal.3d 343, for
a contrary conclusion is misplaced. Guerrero, which was decided
prior to the enactment of Proposition 36, restricts the evidence a
trial court may consider in determining the truth of a prior
conviction allegation. The court concluded: “To allow the trier of
fact to look to the record of the conviction—but no further—is
also fair: it effectively bars the prosecution from relitigating the
circumstances of a crime committed years ago and thereby
threatening the defendant with harm akin to double jeopardy and
denial of speedy trial.” (Guerrero, at p. 355.) Similarly, People v.
Wilson (2013) 219 Cal.App.4th 500, 510, also cited by defendant,
concerns a trial court’s determination as to whether a defendant’s
prior conviction qualifies as a “serious felony” under the Three
Strikes Law. In a Proposition 36 proceeding, the court does not

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consider an increase in punishment; the reasoning in these cases
is therefore inapplicable.
The trial court properly relied on the record of conviction in
determining defendant’s ineligibility for resentencing. That
record contains substantial evidence supporting the trial court’s
factual finding that defendant was armed with a knife during the
commission of the underlying offenses.
II. Burden of Proof
Defendant next contends that the trial court should have
made all factual determinations relevant to eligibility using the
beyond a reasonable doubt standard of proof. He relies on People
v. Arevalo (2016) 244 Cal.App.4th 836, 852, in which the court
concluded the prosecution must prove ineligibility beyond a
reasonable doubt. We have disagreed with Arevalo and held that
the preponderance of the evidence was the proper standard.
(Frierson, supra, 1 Cal.App.5th at pp. 793-794; see also Newman,
supra, 2 Cal.App.5th at pp. 727-730 [citing Frierson and adopting
preponderance standard].) The majority of appellate courts to
consider this issue are in accord. (See, e.g., People v. Superior
Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301; Osuna,
supra, 225 Cal.App.4th at p. 1040.) Defendant has provided no
basis to depart from our prior holdings on this issue. We
therefore find no error.
III. Basis for “Armed” Determination
Finally, defendant asserts that “the definition of arming
requires that there be a facilitative nexus between a defendant’s
crimes and his possession of a weapon,” and that no such nexus
existed here. He acknowledges that appellate courts consistently
have rejected this argument, often in connection with an
underlying conviction for being a felon in possession of a firearm.

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(See Osuna, supra, 225 Cal.App.4th at pp. 1029-1032; White,
supra, 223 Cal.App.4th at pp. 524-527; People v. Blakely, supra,
225 Cal.App.4th at pp. 1051-1057; Elder, supra, 227 Cal.App.4th
at pp. 1312–1314; Brimmer, supra, 230 Cal.App.4th at pp. 793-
799; Hicks, supra, 231 Cal.App.4th at pp. 283-284; People v.
White (2016) 243 Cal.App.4th 1354, 1362–1363.) He argues these
cases were wrongly decided. We disagree.
“Armed” with a firearm or other deadly weapon “has been
statutorily defined and judicially construed to mean having a
[weapon] available for use, either offensively or defensively.”
(Osuna, supra, 225 Cal.App.4th at p. 1029, citing § 1203.06, subd.
(b)(3); Health & Saf. Code, § 11370.1, subd. (a); People v. Bland
(1995) 10 Cal.4th 991, 997 (Bland) [construing arming
enhancement in § 12022].) We presume the electorate intended
“armed” with a deadly weapon to have this meaning under
Proposition 36. (Osuna, supra, 225 Cal.App.4th at p. 1029, citing
People v. Weidert (1985) 39 Cal.3d 836, 844 [“‘The enacting body
is deemed to be aware of existing laws and judicial constructions
in effect at the time legislation is enacted’ . . . [and] [t]his
principle applies to legislation enacted by initiative.”].) Following
this construction, courts uniformly have held that the armed-
with-a-firearm exclusion applies where there is a “temporal
nexus between the arming and the underlying felony, not a
facilitative one,” in other words, where the record indicates the
defendant was in actual physical possession of the weapon.
(Osuna, supra, 225 Cal.App.4th at p. 1032 [record showed fleeing
defendant was observed holding handgun that was discovered
during subsequent search of nearby house from which he
emerged]; see also White, supra, 223 Cal.App.4th at p. 524 [record
showed defendant was observed tossing away pair of rolled-up

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sweatpants containing handgun during police pursuit]; Brimmer,
supra, 230 Cal.App.4th at p. 796 [record showed defendant was
personally armed with unloaded shotgun while arguing with his
girlfriend].)
Here, the record showed that defendant dropped a knife
from his person as he ran from a police officer. Shortly
thereafter, the officer retrieved a knife from the location where he
had seen defendant drop it. Based on this record, it is clear that
defendant had the knife “available for use, either offensively or
defensively” and was therefore “armed with a deadly weapon”
within the meaning of section 667, subdivision (e)(2)(C)(iii) and
section 1170.12, subdivision (c)(2)(C)(iii). (See Osuna, supra, 225
Cal.App.4th at pp. 1029-1032.)
Defendant does not dispute that there was substantial
evidence from which the trial court could conclude he had a
weapon available for use during the commission of the offense.
Rather, he maintains something more is required to establish the
“armed” exclusion. Relying on Bland, supra, 10 Cal.4th at p. 997,
he argues the exclusion should be interpreted to disqualify an
inmate from resentencing only if the arming is “tethered” to or
has some “facilitative nexus” with a current offense. Bland
involved a sentencing enhancement that applies where a
defendant was “armed with a firearm in the commission” of a
felony drug possession offense. (§ 12022, subd. (c).) The Bland
court interpreted the phrase “armed with a firearm in the
commission” of felony drug possession as requiring evidence of a
“nexus or link between the firearm and the drugs.” (Bland,
supra, 10 Cal.4th at p. 1002.)
The Osuna court refused to apply this interpretation to the
“armed” requirement under Proposition 36, explaining that the

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construction of section 12022 requiring a “facilitative nexus”
between the arming and an underlying felony is specific to the
“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.]” (Osuna, supra, 225
Cal.App.4th at p. 1030.) The court also reasoned that “unlike
section 12022, which requires that a defendant be armed ‘in the
commission of’ a felony for additional punishment to be imposed
(italics added), [Proposition 36] 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.’
(Webster’s 3d New Internat. Dict. (1986) p. 703.) 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. [Citation.]” (Osuna, supra, 225 Cal.App.4th at p. 1032;
accord Brimmer, supra, 230 Cal.App.4th at pp. 798-799; Hicks,
supra, 231 Cal.App.4th at pp. 283-284; People v. White, supra,
243 Cal.App.4th at pp. 1362-1363.)
We agree with the reasoning of the Osuna court and
therefore reject defendant’s suggestion that there is no
meaningful distinction between the use of the words “during” and
“in” in this context. (See In re Pritchett (1994) 26 Cal.App.4th
1754, 1757 [rejecting an enhancement because “[a]lthough
[defendant] used the shotgun as a club during his possession of it,
he did not use it ‘in the commission’ of his crime of possession. . . .
[U]sing it as a club in no way furthered the crime of
possession.”].)

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DISPOSITION
Affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.

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