People v. Garcia CA2/2

Filed 9/26/16 P. v. Garcia CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B270606

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA049022) v.

ANTHONY GERALD GARCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed.

Jonathan B. Steiner, Executive Director, Richard B. Lennon, California Appellate Project, 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 Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Anthony Gerald Garcia appeals from the postjudgment order denying his petition to recall his sentence and for resentencing pursuant to Penal Code section 1170.126,1 added by Proposition 36 (or Act).2 He contends the Proposition 36 court erred, because the fact he had a gun during a police pursuit does not establish he was armed with a firearm. His position is “armed” within the meaning of the Act requires the defendant have “the weapon available for use in furtherance of the commission of the [subject] offense,” which “in turn requires that the arming and the offense be separate, but ‘tethered,’ such that the availability of the weapon facilitates the commission of the offense.” We affirm the order. The Proposition 36 court found “[d]uring the commission of the current offense, the defendant . . . was armed with a firearm,” which is an expressly enumerated factor for disqualifying, or rendering ineligible, a defendant for resentencing under Proposition 36 (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii). This finding is legally sound and supported by substantial evidence. Defendant’s proposed definition of “armed” has no merit. BACKGROUND The evidence established that on June 29, 2000, defendant borrowed a car from an acquaintance to go out with friends that evening. He did not return it at the agreed-upon time. At about 4:00 a.m. on June 30, a uniformed police officer observed defendant driving the car towards him without any headlights on. Although he flashed the high