Defendant Found Weaponless Was ‘Armed’

Tuesday, January 19, 2015

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Defendant Found Weaponless Was ‘Armed’—Panel

Justices Say Earlier Possession Was Reasonably Inferred From Other Evidence

By a MetNews Staff Writer

A defendant who was not in possession of a gun when he was arrested was still “armed” within the meaning of the Three Strikes Reform Act, where there was evidence supporting an inference he disposed of his weapon in the trash can where it was found, the Fourth District Court of Appeal ruled Friday.

Div. Three affirmed Orange Superior Court Judge Patrick Donahue’s ruling denying Todd Eugene White’s 2013 motion for resentencing. White is serving a sentence of 27 years to life in prison for possession of a firearm by a convicted felon, of which he was convicted in 1996.

Donahue ruled that White was ineligible for a reduced sentence under Proposition 36, enacted at the 2012 general election, because he was armed at the time of the offense for which the third-strike sentence was imposed.

The defense argued that the provision that treats any offense while armed as a serious felony, thereby precluding resentencing, was not intended to apply to a mere possessory offense. It also argued that even if a finding of being armed can be based on a the crime of possession alone, the evidence did not establish that White was in actual, rather than constructive, possession of the weapon.

Donahue rejected those arguments after reviewing the transcript of Donahue’s trial, at which the arresting officer testified that he noticed White, concluded he matched the description of a robbery suspect, and followed him in his patrol car. The officer lost sight of him when he walked into a motel parking lot, but later saw him walking along the second floor corridor and asked him to come down and talk.

When White came down, the officer testified, he looked at White’s fanny pack, which the officer had noticed the first time he saw White. The fanny pack looked less full, the officer said.

Suspecting some of the pack’s contents had been disposed of on the upper floor, the officer searched and found a loaded semi-automatic pistol in a trash can. Two bullets found in a subsequent search of the pack matched those in the gun.

White testified that the gun was not his. He said he found the bullets on the motel stairs, picked them up, and put them in his pack.

Donahue initially ruled that White was eligible for resentencing, but denied the motion on the ground he was a danger to public safety. On reconsideration, however, he determined that White was ineligible under People v. White (2014) 223 Cal.App.4th 512, which held that a defendant who was seen throwing a gun away was “armed” within the meaning of the statute.

Justice William Rylaarsdam, writing for the Court of Appeal, said the trial judge was correct. The lack of an eyewitness to White’s possession of the gun did not preclude a finding that he was armed with it, the appellate jurist said.

“[I]t is...clear defendant’s conviction was based on either the inference he discarded the gun into the trash can on that occasion or he had placed it there earlier,” Rylaarsdam wrote. “Either way, his possession amounts to being armed. Consequently, White is not materially distinguishable.”

The justice went on to explain that the finding of being armed for purposes of Proposition 36 is distinguishable from the similar finding for purposes of a sentence enhancement.

The state Supreme Court, he acknowledged, has held that to attach an enhancement to a felony sentence, based on the defendant being “armed with a firearm during the commission of a felony,” there must be a finding of a nexus between the gun possession and the underlying felony.

But the language treating an armed felon as ineligible for resentencing under Proposition 36 is different, Rylaarsdam said, as is the purpose of the provision.

“The overall goal of the revisions [made by the initiative] is to draw distinctions between the repeat offenders who have committed serious or violent crimes and those who have not,” the justice said. The distinction between one who merely possesses a gun-such as by keeping it in a safe deposit box—and one who is “armed” with one, under circumstances such as White’s where it would have been readily accessible for use in a crime—is reasonable, the jurist concluded.

The case is People v. White, G050478.