The California Court of Appeals ruled that a felon “physically” in possession of a firearm qualifies as a third strike under the state’s for Three Strikes law.
The news is a setback for the state’s 280 third-strikers whose third strike was possession of a firearm and who were attempting to be re-sentenced and released under Proposition 36, the Three Strikes Reform Act of 2012.
California voters overwhelmingly approved the Reform Act in November 2012.
The Act excludes defendants who were armed with a firearm or deadly weapon during the commission of a crime.
In California, possession of a firearm by a convicted felon is a felony, and under pre-Proposition 36 qualifies as a third strike.
Before the Reform Act, any felony could count as a third strike and required a minimum sentence of 25 years to life. After the Act, the third strike has to be a serious or violent felony.
With the passage of Proposition 36, Superior Court judges around the state began issuing conflicting decisions on whether defendants qualify for re-sentencing. The question, precisely, was whether someone convicted of simply possessing a firearm was in fact armed during the commission of the crime.
In Kern County, two judges rejected requests to resentence prisoners serving Three Strikes sentences for gun possession, while a third judge granted such a request, the Los Angeles Times reported.
According to the Times, a judge in Santa Clara County also made a ruling that being a felon in possession of a firearm did not disqualify a third-striker from a sentence reduction under Proposition 36.
Yet a San Diego Superior Court judge ruled otherwise and denied the re-sentencing request of Mark Anthony White.
In denying White’s request, the court found he was ineligible for re-sentencing because he was armed with a firearm during the commission of his current offense— possession of a firearm by a felon— within the meaning of the “armed with a firearm” exclusion set forth in the act.
On appeal, the superior court ruling stood. White has spent nearly two decades behind bars for felony gun possession.
The decision, however, suggests that constructive possession of a firearm by a felon (e.g., having a gun in the trunk of a car one is driving) may open a possibility for defendants whose third strikes were felony gun possession and whose records indicate they only constructively possessed the firearm.
The state Supreme Court will decide if it will hear an appeal of the ruling.
