Is possession of a firearm by a felon a third strike sentence?
California, United States of America
The following excerpt is from People v. Tejeda, D068737 (Cal. App. 2016):
Possession of a firearm by a felon is not listed as a serious or violent felony and thus would not by itself justify a third strike sentence. Possession may be established even if it is only constructive. (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417.) Thus a person who possesses a firearm may not necessarily be "armed" at the time of the offense. (People v. White, supra, 223 Cal.App.4th at p. 524.) We turn then to the definition of being armed.
In People v. Bland (1995) 10 Cal.4th 991, 997, the court held that being armed is " 'the availability--the ready access--of the weapon that constitutes arming.' " Hence, having a loaded functional pistol "tucked in the waistband" of a defendant's pants constitutes being armed with, as well as in possession of a firearm.
In People v. White, supra, 223 Cal.App.4th 512, this court addressed a similar claim by an inmate who was serving a life term for the felony of possession of a firearm by a felon. The record there demonstrated the defendant had the weapon in his personal possession when encountered by police. The defendant threw the weapon away as he was being pursued by police. We held the defendant was not eligible for resentencing under the act.
Division 3 of the Fourth District reached the same result in People v. White (2016) 243 Cal.App.4th 1354, 1362-1365 (White II). (Unrelated to White, supra, 223
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