People v. Tyler CA2/1

Filed 9/6/16 P. v. Tyler CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.