Can a defendant who was convicted under the pre-Proposition 36 version of the Three Strikes law, as a third strike offender of possession of a firearm by a felon, appeal against his sentence?

California, United States of America


The following excerpt is from People v. Carter, 2d Crim. No. B266923 (Cal. App. 2016):

We disagree. The issue before the trial court was not, as appellant alleges, whether his conviction "was based upon conduct th[at] constituted arming." The issue was whether facts in the record of conviction show that he was armed. "[W]here . . . the record [of conviction] establishes that a defendant convicted under the pre-Proposition 36 version of the Three Strikes law as a third strike offender of possession of a firearm by a felon was armed with the firearm during the commission of that offense, the armed-with-a-firearm exclusion applies and the defendant is not entitled to resentencing relief under the Reform Act." (People v. White, supra, 223 Cal.App.4th at p. 519.)

That the evidence was conflicting is of no consequence. "Conflicting evidence . . . does not cast doubt on the trial court's factual findings because we review factual findings for substantial evidence. [Citation.] Here, there was substantial evidence that [appellant] was armed [with a firearm] . . . ." (People v. Hicks, supra, 231 Cal.App.4th 275, 286.)

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