Under California Penal Code section 1170.126, subdivision (e)(2), a defendant is ineligible for resentencing if he was armed during the commission of the crime. “A defendant is armed if the gun has a facilitative nexus with the underlying offense.” The question is “whether possessing a gun can constitute being armed with the gun during the possession.” The offense of felon in possession of a gun requires actual or constructive possession. If the gun is readily accessible for offensive or defensive use, the defendant is armed during the possession. An inmate may not later seek a reduction and modification of a sentence if they were armed during the crime.

Circumstances rendering a defendant ineligible for Strike Reform Act resentencing are not subject to a pleading and proof requirement. The prospective application of the Act requires the prosecution to plead and prove that the priors and the commitment offense are serious or violent, or come within a qualifying class of cases, in order to render a defendant eligible for a California Three Strikes sentence of 25 years to life. The retrospective relief accorded under section 1170.126 requires the trial court to determine whether the defendant is eligible for resentencing, but contains no express provision regarding pleading and proof of ineligibility in the proceedings underlying the commitment offense.