People v. Thomas CA2/1

Filed 3/22/16 P. v. Thomas CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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