Filed 9/1/16 P. v. Myers CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR



THE PEOPLE,                                                          B263866

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. KA027232)
         v.

MICHAEL CRAIG MYERS,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
         Larry Pizarro, 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 Abtin Amir, Deputy Attorneys General, for Plaintiff and Respondent.
       In January 1996, a jury convicted defendant Michael Myers of possession of
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a firearm by a felon (Former Pen. Code, § 12021, subd. (a)(1)). In a bifurcated
proceeding, the trial court found true allegations that appellant had suffered three
prior convictions pursuant to the Three Strikes law. The court sentenced him to 25
years to life in state prison. In 1999, this court affirmed the judgment of
conviction. (People v. Myers (1999) 69 Cal.App.4th 305.)
       In November 2012, defendant petitioned to have his sentence recalled under
section 1170.126, Proposition 36. The trial court denied the petition, and
defendant appeals. We affirm.


                                   BACKGROUND
       The trial court’s memorandum of decision described the facts of appellant’s
offense as follows (with citations to the reporter’s transcript of the trial deleted):
       “On May 3, 1995, an officer responded to the area of 954 North Park in
Pomona regarding a fight and possible shots fired. Upon arriving, the officer
observed two black males standing against a wall, drinking beer. When the officer
called for them to approach his vehicle, one of the subjects ran to the end of the
driveway and through an open gate next to apartment One at 954 North Park. The
officer detained the remaining subject and called for assistance. A short time later,
the subject reappeared from the area of apartment One and was detained by the
officer.
       “The Officer observed [defendant] exit the open gate near apartment One,
walk down the driveway, and watch the detention. He then left the area through
the gate and returned a few minutes later. Believing he may be involved with the
original call, the officer detained [defendant] and discovered he had recently been


1
       Further unspecified statutory references are to the Penal Code.
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released from prison on parole. Officers at the scene contacted a parole agent and
received authorization to search [defendant’s] residence, 954 North Park,
apartment One. Two loaded handguns, one which had an expended bullet, were
found underneath a mattress in one of the bedrooms of the apartment. [Defendant]
admitted he had purchased one of the weapons for ‘protection’ and was holding the
other weapon for a friend. He also admitted that he hid the guns between the
mattress and the box spring.”
      The trial court denied defendant’s petition to recall his sentence, finding that
the prosecution had proven by a preponderance of the evidence that defendant was
armed with a firearm within the meaning of sections 667, subdivision (e)(2)(C)(iii)
and 1170.12, subdivision (c)(2)(C)(iii), thus rendering him ineligible for
resentencing under section 1170.126, subdivision (e)(2).


                                   DISCUSSION
      Defendant contends that rules of statutory construction compel the
conclusion that Proposition 36’s exclusion from resentencing for felons who are
armed during the commission of the underlying offense applies only where the
arming facilitates commission of that offense or an additional offense, and not
when the firearm is merely available for use. We disagree.
      Section 1170.126 provides that an offender serving a Three Strikes sentence
may be eligible for resentencing where the current felony conviction is not a
serious or violent felony. (People v. Johnson (2015) 61 Cal.4th 674, 681.) If the
statutory eligibility criteria are satisfied and no enumerated exclusion applies, the
trial court determines whether imposition of a two-strike determinate term presents
an unreasonable risk of danger to public safety. (Id. at pp. 681-682.) The court
may then resentence the offender accordingly.


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      An offender is statutorily 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.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126,
subd. (e)(2); People v. Johnson, supra, 61 Cal.4th at p. 681.) “‘Armed with a
firearm’ has been statutorily defined and judicially construed to mean having a
firearm available for use, either offensively or defensively.” (People v. Osuna
(2014) 225 Cal.App.4th 1020, 1029.) It is the availability of and ready access to
the weapon that constitutes arming. (People v. White (2014) 223 Cal.App.4th 512,
524, 527 [armed-with-a-dangerous-weapon exclusion does not require that the
arming be anchored or tethered to an offense that does not include simple
possession].) Obviously, the threat presented by a firearm increases in direct
proportion to its accessibility; a firearm that is available for use as a weapon
creates the danger that it will be used. (People v. White (2016) 243 Cal.App.4th
1354, 1363.)
      Here, the trial court properly found that defendant was ineligible for
resentencing pursuant to section 1170.126 because he had possession of two
firearms that were available for use. Where the record of conviction establishes
that the defendant was convicted of possession of a firearm by a felon and was
armed with the firearm during commission of that offense, “the armed-with-a-
firearm exclusion applies and the defendant is not entitled to resentencing relief
[pursuant to section 1170.126].” (People v. White, supra, 223 Cal.App.4th at
p. 519.)
      As defendant concedes, several courts have rejected his interpretation of
Proposition 36. (People v. White, supra, 243 Cal.App.4th at pp. 1362-1365;
People v. Hicks (2014) 231 Cal.App.4th 275, 283-285; People v. Osuna, supra,
225 Cal.App.4th at pp. 1030-1032; People v. White, supra, 223 Cal.App.4th at
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p. 519.) We agree with the reasoning of these decisions, and conclude that the trial
court properly denied his petition to recall his sentence.


                                   DISPOSITION
      The order denying the petition to recall the sentence is affirmed.

      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                               WILLHITE, J.


             We concur:



             EPSTEIN, P. J.



             COLLINS, J.




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