Filed 9/6/16 P. v. Tyler 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B266089

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA045711)
         v.

JESSE LEE TYLER,

         Defendant and Appellant.



         APPEAL from a judgment 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, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
                                      ____________________________
       Jesse Lee Tyler, who in 1996 was convicted of possession of a firearm by a felon
and sentenced to 25 years to life in prison, appeals from an order denying his petition to
recall the sentence pursuant to Penal Code section 1170.126.1 He contends the trial court
erred in finding him ineligible for resentencing because he had been armed with and used
a firearm during the commission of his final strike offense. We find no error and affirm.
                                       BACKGROUND
       On July 11, 1996, Tyler approached Anthony Webster in the garage of an
apartment complex and asked for directions to the elevator. After a brief conversation,
Webster entered the elevator, but as the doors were closing Tyler forced them open,
pulled out a gun, and pointed it at Webster. Webster grabbed Tyler in response, and
during the ensuing struggle Tyler fired three shots, the last of which struck Webster in the
forearm.
       Tyler pleaded guilty to possession of a firearm by a felon (former § 12021.1, subd.
(a)(1)) and admitted he had suffered three prior “strike” convictions for robbery. The
trial court sentenced him under the “Three Strikes” law to 25 years to life in prison.
       In December 2012, Tyler filed a petition to recall his sentence under the Three
Strikes Reform Act of 2012, added by Proposition 36, approved by the voters on
November 6, 2012, which permits an inmate serving an indeterminate life sentence under
the Three Strikes law for a nonviolent, nonserious felony to seek a new, lesser sentence
unless resentencing would pose an unreasonable risk to public safety. (§ 1170.126,
subds. (b), (e), (f).) After reviewing victim testimony given at the preliminary hearing,
the trial court found Tyler was ineligible for resentencing because he had been armed
with and used a firearm during the commission of his offense.
       Tyler timely appealed.
                                        DISCUSSION
       Tyler contends he is eligible for resentencing. We disagree.




       1
           All further statutory references will be to the Penal Code.

                                                2
       Section 1170.126 was added as part of the Three Strikes Reform Act. (Voter
Information Guide, text of Prop. 36, § 6, pp. 109-110.) Among its stated purposes, as
explained to voters, was to require “life sentences only when a defendant’s current
conviction is for a violent or serious crime” and to ensure “that repeat offenders
convicted of non-violent, non-serious crimes like shoplifting and simple drug possession
will receive twice the normal sentence instead of a life sentence.” (Id., § 1, p. 105.) In
accordance with these goals, section 1170.126 permits an inmate serving an
indeterminate life sentence under the previous version of the Three Strikes law to petition
for recall of the sentence and resentencing to a term that would have been imposed under
the revised law.
       But subdivision (e)(2) of section 1170.126 provides that an inmate is ineligible for
resentencing if the current sentence was imposed for an offense described in subdivision
(e)(2)(C) of section 667. (§ 1170.126, subd. (e)(2); People v. Hicks (2014) 231
Cal.App.4th 275, 282.)2 Among the offenses described in subdivision (e)(2)(C) of
section 667 is any offense during the commission of which “the defendant used a firearm
[or] was armed with a firearm or deadly weapon.” (§ 667, subd. (e)(2)(C)(iii).)3
       Here, the trial court found, based upon victim testimony given at the preliminary
hearing, that Tyler had been armed with and used a firearm during the commission of his
current offense. (He shot the victim.)
       Tyler does not dispute this finding, but argues that having been armed during the
commission of his offense (possession of a firearm by a felon) does not disqualify him
from resentencing under Proposition 36 because being armed is an element of the

       2
         Subdivision (e)(2) of section 1170.126 provides in pertinent part that an inmate is
eligible for resentencing if the “inmate’s current sentence was not imposed for any of the
offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2)
of subdivision (e) of Section 667 . . . .”
       3
         Subdivision (e)(2)(C)(iii) of section 667 disqualifies a defendant from relief
under Proposition 36 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.”

                                             3
offense. Therefore, he argues, the armed with a firearm exclusion applies only when
being armed is “tethered” to another offense. The argument is without merit. Where “the
record shows that a defendant convicted of possession of a firearm was armed with the
firearm during the commission of the offense, the armed with a firearm exclusion applies
and the defendant is not entitled to resentencing . . . under” Proposition 36. (People v.
Brimmer (2014) 230 Cal.App.4th 782, 797; accord People v. Hicks, supra, 231
Cal.App.4th at pp. 283-284; People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1314,
1317; People v. Osuna (2014) 225 Cal.App.4th 1020, 1030; People v. White (2014) 223
Cal.App.4th 512, 525.) Here, Tyler was armed with and used a gun during the
commission of his possession offense, which sufficed for the firearm exclusion to apply.
       Tyler argues our interpretation of the exclusion as applied to a possession offense
renders the exclusion superfluous, as all firearm possession involves being armed. The
argument is without merit. “A defendant possesses a weapon when it is under his
dominion and control.” (People v. Pena (1999) 74 Cal.App.4th 1078, 1083.) “A
defendant is armed if the defendant has the specified weapon available for use, either
offensively or defensively.” (People v. Bland (1995) 10 Cal.4th 991, 997.) “A firearm
can be under a person’s dominion and control without it being available for use. For
example, suppose a parolee’s residence (in which only he lives) is searched and a firearm
is found next to his bed. The parolee is in possession of the firearm, because it is under
his dominion and control. If he is not home at the time, however, he is not armed with
the firearm, because it is not readily available to him for offensive or defensive use.
Accordingly, possessing a firearm does not necessarily constitute being armed with a
firearm.” (People v. Osuna, supra, 225 Cal.App.4th at p. 1030.)
       Under the circumstances in this case, Tyler both possessed a firearm and had it
readily available for use during his encounter with Webster. He was thus “armed” within
the meaning of Proposition 36, which renders him ineligible for resentencing. The trial
court correctly denied his recall petition.




                                              4
                                  DISPOSITION
    The order dismissing Tyler’s petition is affirmed.
    NOT TO BE PUBLISHED.




                                                         CHANEY, J.


WE CONCUR:




           ROTHSCHILD, P. J.




           LUI, J.




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