Does Section 1170 of the Criminal Code require pleading and proof to prove a defendant was actually armed during his possession of a firearm?

It is well-settled that a statutory "interpretation that renders related provisions nugatory must be avoided." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) And because inferring a pleading and proof requirement into subdivision (e)(2) of section 1170.126 would do just that with respect to two of the factors it identifies as disqualifying a defendant from eligibility for resentencing, we join the other courts that have rejected that inferred requirement.

4. Defendant's Record of Conviction Establishes he was Ineligible for Resentencing.

Here, as in White, defendant's "record of conviction establishes" he was actually armed during his possession of the firearm. (White, supra, 223 Cal.App.4th at p. 524.) His conviction was for possession of a firearm, so there was no basis to dispute that point. And although the judgment itself includes no finding defendant was "armed" with that gun, the record of conviction provided to the trial court reflected no realistic probability that he was not. While it is true that a conviction for gun possession can be based on either actual or constructive possession (People v. Elder (2014) 227 Cal.App.4th 1308, 1313), defendant's underlying conviction was based on undisputed evidence he was seen crouching next to a van and tossing something - later revealed to be the gun - underneath it as he was running away from a police officer. That evidence demonstrates defendant's actual possession of the gun. There was no evidence of any other gun in the case that defendant might have possessed only constructively. Thus,

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