Filed 3/22/16 P. v. Thomas CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B262072

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA040575)
         v.

SYLVESTER THOMAS,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, William C.
Ryan, Judge. Affirmed.
         Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
                                   _______________________________
       Sylvester Thomas appeals from an order denying his petition to recall his sentence
under the Three Strikes Reform Act of 2012, added by Proposition 36. (Pen. Code, §
             1
1170.126.) We affirm.
                                      BACKGROUND
       On April 30, 1997, a jury found Thomas guilty of possession of a firearm by a
felon (former § 12021, subd. (a)(1)). The trial court found prior conviction allegations to
be true and sentenced Thomas under the “Three Strikes” law to 25 years to life in prison
as a third strike offender.
       After Proposition 36 was approved by voters in November 2012, Thomas filed a
petition to recall his sentence under section 1170.126. The trial court ordered the district
attorney to show cause why the court should not recall Thomas’s sentence. The district
attorney filed an opposition and a revised opposition arguing Thomas was ineligible for
resentencing under section 1170.126 because he was armed with a firearm during the
                                                                                       2
commission of the current commitment offense (possession of a firearm by a felon).
Thomas filed a reply arguing “offenders must not only arm themselves, but also must
commit some other offense, apart from the arming itself, in order for the exception to
apply” under sections 1170.126, subdivision (e)(2), and 1170.12, subdivision
(c)(2)(C)(iii).
       Before the hearing on Thomas’s petition to recall his sentence, the district attorney
submitted as exhibits excerpts from the reporter’s transcript of the trial on the current
commitment offense, including the testimony of four law enforcement witnesses. At the
January 28, 2015 hearing on Thomas’s petition, the trial court received these exhibits into
evidence.

       1
           Further statutory references are to the Penal Code.
       2
         Under section 1170.126, subdivision (e)(2), an inmate is ineligible for
resentencing if, “[d]uring the commission of the current offense, the defendant used a
firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily
injury to another person” within the meaning of section 1170.12, subdivision
(c)(2)(C)(iii). (Italics added.)

                                               2
       As set forth in the aforementioned exhibits, substantial evidence presented at the
1997 trial on Thomas’s current commitment offense demonstrates: As Thomas was
fleeing from sheriff’s deputies who were responding to a shooting call, deputies observed
Thomas throw an object that looked like a gun into a yard. A deputy went into the yard
and recovered a loaded semiautomatic firearm. During questioning by a deputy, Thomas
admitted he threw the gun while deputies were chasing him.
       On January 28, 2015, after considering the parties’ papers and exhibits and hearing
oral argument, the trial court denied Thomas’s petition to recall his sentence, finding
Thomas was “ineligible for resentencing because, during the commission of the current
conviction, he was armed with a firearm, which is a disqualifying crime under section
1170.126(e)(2) . . . .”
                                      DISCUSSION
       Thomas contends the trial court erred in denying his petition to recall his sentence
under section 1170.126 based on the court’s finding Thomas was armed with a firearm
during commission of the current offense (possession of a firearm by a felon) within the
meaning of section 1170.12, subdivision (c)(2)(C)(iii). Thomas argues the fact he was
armed with a firearm does not render him ineligible for resentencing under section
1170.126 because the arming was not tethered to an offense separate and apart from the
arming itself.
       As set forth above, under section 1170.126, subdivision (e)(2), an inmate is
ineligible for resentencing if, “[d]uring the commission of the current offense, the
defendant used a firearm, was armed with a firearm or deadly weapon, or intended to
cause great bodily injury to another person” within the meaning of section 1170.12,
subdivision (c)(2)(C)(iii). (Italics added.) Courts that have interpreted this statutory
language in a similar context have concluded a person convicted of the crime of
possession of a firearm by a felon is disqualified from resentencing under section
1170.126 “if he or she was armed with a firearm during the unlawful possession of that
firearm.” (People v. Osuna (2014) 225 Cal.App.4th 1020, 1032; People v. Hicks (2014)
231 Cal.App.4th 275, 283-284; People v. Brimmer (2014) 230 Cal.App.4th 782, 797;

                                              3
People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314, 1317; People v. Blakely (2014)
225 Cal.App.4th 1042, 1054; People v. White (2014) 223 Cal.App.4th 512, 525-526.)
Thomas has cited no case holding an inmate who was armed with a firearm when he
committed the crime of possession of a firearm by a felon is eligible for resentencing if
the arming was not tethered to an offense separate and apart from the possession of a
firearm by a felon.
       Based on substantial evidence in the record, there can be no dispute Thomas was
armed with a firearm when he committed the crime of possession of a firearm by a felon.
The firearm was not merely under Thomas’s “dominion and control” at the time he
committed the offense (e.g., in his bedroom during a search for which he was not
present), it was “available for use.” (People v. Osuna, supra, 225 Cal.App.4th at p.
1030.) “It is clear the electorate’s intent [in approving Proposition 36] was not to throw
open the prison doors to all third strike offenders whose current convictions were not for
serious or violent felonies, but only to those who were perceived as nondangerous or
posing little or no risk to the public. A felon who has been convicted of two or more
serious and/or violent felonies in the past, and most recently had a firearm readily
available for use, simply does not pose little or no risk to the public.” (Id. at p. 1038.)
       We disagree with Thomas’s assertion the cases cited above were all wrongly
decided. Under the plain statutory language, a felon who commits the crime of
possession of a firearm by a felon while armed with the firearm is disqualified from
resentencing under section 1170.126. A felon who commits the crime of possession of a
firearm by a felon while not armed with the firearm is not similarly disqualified.
       The trial court properly denied Thomas’s petition to recall his sentence.
                                       DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED.

                                                          CHANEY, J.
We concur:
              ROTHSCHILD, P. J.                           LUI, J.

                                               4
