disqualifying factors in California

2026In exercising this discretion, the court may consider the defendant’s criminal conviction history, the defendant’s disciplinary record and record of rehabilitation while incarcerated, and ‘[a]ny other evidence the court . . . determines to be relevant.’ (Id., subd. (g).)” (People v. Conley, supra, 63 Cal.4th at p. 653 .) B.

2017(Id., subd. (b).) If the petitioner would have qualified for a shorter sentence under the Reform Act version of the law, taking into consideration the disqualifying factors (§ 1170.126, subds. (e), (f)), section 1170.126 provides that he ‘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’ (id., subd. (f)).” ( Conley, supra, 63 Cal.4th at pp. 652- 654.) 16 In Conley, while the defendant’s appeal from his three strikes judgment was pending, the voters enacte

2016(People v. Hicks (2014) 231 Cal.App.4th 275, 282 .) One of the disqualifying factors is 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).) The phrase “during the commission of the current offense” “requires a temporal nexus between the arming and the underlying felony, not a facilitative one.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1032 (Osuna).) Moreover, the phrase “‘[a]rmed with a firearm’

2016(People v. Hicks (2014) 231 Cal.App.4th 275, 282 .) One of the disqualifying factors is 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).) The phrase “during the commission of the current offense” “requires a temporal nexus between the arming and the underlying felony, not a facilitative one.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1032 (Osuna).) Moreover, the phrase “‘[a]rmed with a firearm’

2016As our colleagues in Division Eight of this Court recently explained, “There is no requirement that the disqualifying factors in section 1170.126, subdivision (e) be pled and proved; rather it is the court that makes the determination.” (Estrada, supra, 243 Cal.App.4th at p. 340 ; see, e.g., People v. Chubbuck (2014) 231 Cal.App.4th 737, 748 [“where a defendant was 5 sentenced under the Three Strikes law prior to the Reform Act, a trial court may deny resentencing relief under section 1170.126, subdivision (e)(2) if it finds the defendant ‘intended to cause great bodily injury’ during the comm

2016The defendant in People v. Chubbuck (2014) 231 Cal.App.4th 737 (Chubbuck) likewise argued that “ ‘a fair reading’ ” of the Reform Act “ ‘compels a conclusion’ that the pleading and proof language of section 1170.12, subdivision (c)(2)(C) applies to the disqualifying factors referenced in section 1170.126, subdivision (e)(2).” ( Chubbuck, supra, at p. 746 .) In other words, because the Reform Act expressly requires the prosecution to plead and prove the disqualifying factors at the initial sentencing of a 7 potential third strike defendant, the prosecution must also plead and prove the disquali

2016Act, prosecutors may have had no reason to plead and prove the new disqualifying factors in a particular case." (Ibid.) Further, the Conley court specifically addressed the armed with a firearm disqualifying factor at issue in this case and White: "Take, for example, the application of the 'armed with a firearm' disqualifying factor ( . . . § 1170.12, subd. (c)(2)(C)(iii)) in the case of a prisoner serving an indeterminate life term for possessing a firearm as a felon. ([Citation]; cf. People v. White, [supra,] 223 Cal.App.4th 512 .) Case law holds that possession of a firearm does not necessa

2016Act, prosecutors may have had no reason to plead and prove the new disqualifying factors in a particular case." (Ibid.) Further, the Conley court specifically addressed the armed with a firearm disqualifying factor at issue in this case and White: "Take, for example, the application of the 'armed with a firearm' disqualifying factor ( . . . § 1170.12, subd. (c)(2)(C)(iii)) in the case of a prisoner serving an indeterminate life term for possessing a firearm as a felon. ([Citation]; cf. People v. White, [supra,] 223 Cal.App.4th 512 .) Case law holds that possession of a firearm does not necessa

2015One 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), 1170.12, subd. (c)(2)(C)(iii).) Defendant’s tethering claim has been rejected by both courts that considered it (People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314 (Elder); People v. Osuna (2014) 225 Cal.App.4th 1020, 1032 (Osuna))

2015One 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), 1170.12, subd. (c)(2)(C)(iii).) Defendant’s tethering claim has been rejected by both courts that considered it (People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314 (Elder); People v. Osuna (2014) 225 Cal.App.4th 1020, 1032 (Osuna))

2018Following the Act, a defendant convicted of a felony with two or more prior strike allegations is subject to a 25-year-to-life sentence if the current conviction is a serious or violent felony but is subject only to a two-strike sentence if the current felony is not serious or violent. (§§ 667, subds. (e)(2)(A), (e)(2)(C), 1170.12, subds. (c)(2)(A), & (c)(2)(C); People v. Yearwood (2013) 213 Cal.App.4th 161 , 170, 151 Cal.Rptr.3d 901 .) Section 1170.126 allows a person presently serving a three strikes sentence for a felony that is neither serious nor violent to petition for resentencing as a

2018Following the Act, a defendant convicted of a felony with two or more prior strike allegations is subject to a 25-year-to-life sentence if the current conviction is a serious or violent felony but is subject only to a two-strike sentence if the current felony is not serious or violent. (§§ 667, subds. (e)(2)(A), (e)(2)(C), 1170.12, subds. (c)(2)(A), & (c)(2)(C); People v. Yearwood (2013) 213 Cal.App.4th 161 , 170, 151 Cal.Rptr.3d 901 .) Section 1170.126 allows a person presently serving a three strikes sentence for a felony that is neither serious nor violent to petition for resentencing as a

2015One of the disqualifying factors cross-referenced in section 1170.126, subdivision (e) deems 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.” (§ 1170.12, subd. (c)(2)(C)(iii).) The court may also deny resentencing as a second strike offender if it finds the resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) If the underlying conviction does not involve a sustained alle

2015One of the disqualifying factors cross-referenced in section 1170.126, subdivision (e) deems 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.” (§ 1170.12, subd. (c)(2)(C)(iii).) The court may also deny resentencing as a second strike offender if it finds the resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).) If the underlying conviction does not involve a sustained alle

2014Rather, as we discuss, post, the record of conviction must establish arming (or one of the other disqualifying factors). 5 The purpose of the three strikes law has been variously stated as being “ ‘to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses’ ” (In re Young (2004) 32 Cal.4th 900, 909 [ 12 Cal.Rptr.3d 48 , 87 P.3d 797 ]) and “to promote the state’s compelling interest in the protection of public safety and in punishing recidivism” (People v. Gipson (2004) 117 Cal.App.4th 1065,

2014Rather, as we discuss, post, the record of conviction must establish arming (or one of the other disqualifying factors). 5 The purpose of the three strikes law has been variously stated as being “ ‘to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses’ ” (In re Young (2004) 32 Cal.4th 900, 909 [ 12 Cal.Rptr.3d 48 , 87 P.3d 797 ]) and “to promote the state’s compelling interest in the protection of public safety and in punishing recidivism” (People v. Gipson (2004) 117 Cal.App.4th 1065,

2014Rather, as we discuss, post, the record of conviction must establish arming (or one of the other disqualifying factors). 5 The purpose of the three strikes law has been variously stated as being “ ‘to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses’ ” (In re Young (2004) 32 Cal.4th 900, 909 [ 12 Cal.Rptr.3d 48 , 87 P.3d 797 ]) and “to promote the state’s compelling interest in the protection of public safety and in punishing recidivism” (People v. Gipson (2004) 117 Cal.App.4th 1065,

2014Rather, as we discuss, post, the record of conviction must establish arming (or one of the other disqualifying factors). 5 The purpose of the three strikes law has been variously stated as being “ ‘to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses’ ” (In re Young (2004) 32 Cal.4th 900, 909 [ 12 Cal.Rptr.3d 48 , 87 P.3d 797 ]) and “to promote the state’s compelling interest in the protection of public safety and in punishing recidivism” (People v. Gipson (2004) 117 Cal.App.4th 1065,

2014(Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [ 248 Cal.Rptr. 115 , 755 P.2d 299 ]; People v. Belton (1979) 23 *1034 Cal.3d 516, 526 [ 153 Cal.Rptr. 195 , 591 P.2d 485 ].) We do not regard the language of section 1170.126, subdivision (e)(2) as indicating an intent to require a tethering offense, or the pleading and proof of an enhancement (which, as we have seen, is not an offense), in order to trigger the disqualifying factors contained in subdivision (e)(2)(C)(iii) of section 667 and subdivision (c)(2)(C)(iii) of section 1170.12.

2014(Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [ 248 Cal.Rptr. 115 , 755 P.2d 299 ]; People v. Belton (1979) 23 *1034 Cal.3d 516, 526 [ 153 Cal.Rptr. 195 , 591 P.2d 485 ].) We do not regard the language of section 1170.126, subdivision (e)(2) as indicating an intent to require a tethering offense, or the pleading and proof of an enhancement (which, as we have seen, is not an offense), in order to trigger the disqualifying factors contained in subdivision (e)(2)(C)(iii) of section 667 and subdivision (c)(2)(C)(iii) of section 1170.12.

2014We further held in Blakely that the disqualifying factors need not be pled and proved to a trier of fact beyond a reasonable doubt.4 ( Blakely, supra, 225 Cal.App.4th at pp. 1048, 1056-1063.) In Osuna, we held that (1) the disqualifying factors need not be pled and proven to a jury beyond a reasonable doubt; (2) where there are facts in the record of conviction showing the inmate was armed with a firearm ─ meaning it was available for immediate 3 Our court also decided two other cases with related but not identical issues: People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011

2014(Cervantes, supra, 225 Cal.App.4th at pp. 1011-1018; Martinez, supra, 225 Cal.App.4th at pp. 984-985, 989- 995.) In Osuna, we held that (1) the disqualifying factors need not be pled and proven to a jury beyond a reasonable doubt; (2) where there are facts in the record of conviction showing the inmate was armed with a firearm─meaning it was available for immediate offensive or defensive use─during the commission of the inmate’s current offense, the inmate is disqualified from resentencing under the Act even though he or she was convicted of possessing the firearm and not of being armed with i

2019(People v. Frierson (2017) 4 Cal.5th 225, 234 ; 5 People v. Johnson (2016) 1 Cal.App.5th 953, 963 .) Once that requirement is satisfied, however, the burden shifts to the prosecution to prove beyond a reasonable doubt that one of the disqualifying factors applies. ( Perez, supra, 4 Cal.5th at pp. 1059, 1062; Frierson, at p. 236; People v. Arevalo (2016) 244 Cal.App.4th 836, 853 (Arevalo).) Our Supreme Court has expressly held that in determining a petitioner’s eligibility, the trial court may rely on facts not found by a jury, and “[a] reviewing court, in turn, must defer to the trial court’s

2019(People v. Gomez (2018) 6 Cal.5th 243, 278 ; Perez, supra, 4 Cal.5th at p. 1066 [“reviewing court does not reweigh the evidence; appellate review is limited to considering whether the trial court’s finding of a reasonable doubt is supportable in light of the evidence”].) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ ” the court’s findings.

2019(People v. Frierson (2017) 4 Cal.5th 225, 234 ; 5 People v. Johnson (2016) 1 Cal.App.5th 953, 963 .) Once that requirement is satisfied, however, the burden shifts to the prosecution to prove beyond a reasonable doubt that one of the disqualifying factors applies. ( Perez, supra, 4 Cal.5th at pp. 1059, 1062; Frierson, at p. 236; People v. Arevalo (2016) 244 Cal.App.4th 836, 853 (Arevalo).) Our Supreme Court has expressly held that in determining a petitioner’s eligibility, the trial court may rely on facts not found by a jury, and “[a] reviewing court, in turn, must defer to the trial court’s

2018Credit Corp. , at p. 1076, 6 Cal.Rptr.3d 813 .) The law firm filed an answer raising the defense of quantum meruit. ( Ibid. ) The trial court granted summary judgment to the client, ruling that the law firm was not entitled to compensation. ( Ibid. ) The Court of Appeal affirmed, citing "[t]he general rule ... that an attorney disqualified for violating an ethical obligation is not entitled to fees." ( Id. at p. 1079, 6 Cal.Rptr.3d 813 .) The court rejected the law firm's argument that recovery should be allowed because it had committed only "a minor technical [rules] violation ... due to its

2018Credit Corp. , at p. 1076, 6 Cal.Rptr.3d 813 .) The law firm filed an answer raising the defense of quantum meruit. ( Ibid. ) The trial court granted summary judgment to the client, ruling that the law firm was not entitled to compensation. ( Ibid. ) The Court of Appeal affirmed, citing "[t]he general rule ... that an attorney disqualified for violating an ethical obligation is not entitled to fees." ( Id. at p. 1079, 6 Cal.Rptr.3d 813 .) The court rejected the law firm's argument that recovery should be allowed because it had committed only "a minor technical [rules] violation ... due to its