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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY GERALD GARCIA,

Defendant and Appellant.

 B270606

 (Los Angeles County

 Super. Ct. No. KA049022)

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 

 

1 All further section references are to the Penal Code unless otherwise indicated.

2 “On November 6, 2012, the electorate passed Proposition 36, the Three Strikes 

Reform Act of 2012 . . . . Proposition 36 reduced the punishment to be imposed with 

respect to some third strike offenses that are neither serious nor violent, and provided for 

discretionary resentencing in some cases in which third strike sentences were imposed 

with respect to felonies that are neither serious nor violent.” (People v. Johnson (2015) 

61 Cal.4th 674, 679 (Johnson).) Proposition 36 was effective on November 7, 2012. (Id. 

at p. 680.)
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beams of his marked police vehicle several times, defendant did not turn on his lights. 

Defendant then drove his car at 20 to 30 miles per hour through a stop sign.

The officer made a U-turn, activated his full rotator lights, and began following 

defendant, who was then proceeding at about 50 miles per hour. Although the officer 

turned on his siren, defendant drove through several more stop signs at about 70 miles per 

hour on the residential streets. Defendant drove onto the 210 Freeway, exited at the next 

off-ramp, and immediately went up the on-ramp. While the officer’s vehicle was 

“inches” behind his at the top of the ramp, defendant slowed down his car and jumped 

from the driver’s seat. He then ran across the freeway and into some bushes on the 

hillside opposite. Two other men were in the car. 

Another officer and a K-9 unit found defendant hiding under the bushes. 

Although he had been observed wearing a hat, shirt and shoes as he exited the car and ran 

across the freeway, he was not wearing those items at the time of his arrest.

The lender of the car told police that on recent occasions she had seen defendant 

carrying a revolver. Shortly afterward, police officers searched the hillside where 

defendant had been hiding and recovered a loaded .22-caliber revolver, which had been 

covered by leaves. Near the gun they also found a shoe, a hat, and a shirt. 

No defense evidence was presented. Defense counsel argued the evidence did not 

establish either that defendant was the driver or that he possessed the gun.

The jury convicted defendant of evading a peace officer with willful or wanton 

disregard for safety (Veh. Code, § 2800.2, subd. (a)); possession of a firearm by a felon 

(former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1), as amended by Stats. 2010, ch. 

711, § 6]); and carrying a loaded firearm not registered to him (former § 12031, subd. 

(a)(2(F) [now § 25850, subd. (c)(6), as amended by Stats. 2011, ch. 15, § 544]). The trial 

court found he had sustained two prior serious felony convictions within the meaning of 

the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a 
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prior prison term (§ 667.5, subd. (b)). He was sentenced to prison for 25 years to life. 

This court affirmed the judgment from which he appealed.3 

On May 17, 2013, defendant filed a petition to recall his sentence and for 

resentencing on each of his felony convictions in counts 1 through 3.

On June 14, 2013, the Proposition 36 court issued an order to show cause why the 

petition should not be granted. The People filed opposition and supplemental opposition. 

Defendant filed a reply.

On February 1, 2016, at the hearing on the petition, the Proposition 36 court 

recited the evidence as showing that while defendant was in the car he was dressed but 

when he was found hiding in some bushes across the freeway, he was not. His hat, shirt, 

and a handgun, which was a revolver, were found near where he had been hiding. The 

friend who loaned him the car reported she had seen defendant with a gun previously. 

Defense counsel offered: “As to the gun, you left out the fact that the gun was found 

eight hours later . . . .” He added that, although his shoes were found at the time of arrest, 

the gun was found eight hours later on the hillside. The court asked, “Where he had hid 

it?” Counsel responded, “Yes.” He qualified his response by explaining “[n]ot exactly 

where, but—” By way of clarification, the court stated “[i]n the nearby vicinity was what 

I think the evidence showed.” The prosecutor argued: “Under the cases the proximity of 

the gun and the fact he exited the car with the gun would show that he was armed with 

the weapon for offensive or defensive use.” She added the gun was loaded.

Defense counsel objected that the prosecutor “said he was seen exiting the car 

with the gun.” The court responded: “I know that’s not correct.” Counsel argued “[t]he 

gun could have been on the hillside for hours before it was [found].” The court countered 

“[e]xcept that someone also saw him with that very gun” on a previous occasion. 

Counsel objected “[s]omeone saw him with a gun that was old and black,” which was 

 

3 The above background is taken from the earlier unpublished opinion (B146467), 

of which we take judicial notice. (Evid. Code, §§ 452, subd. (d)(1), 459.)
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never identified as the same gun. The court responded: “Well, it had the same 

description. It was a black revolver that was found.”

At the conclusion of the hearing, the court ruled defendant “is statutorily ineligible 

for recall and resentencing because he was armed with a firearm during the commission 

of the offense. That’s the order.” 

DISCUSSION

1. “Armed” Finding Was Legally Sound and Supported by Substantial Evidence 

Defendant contends the trial court erred in finding he was armed with a firearm 

during the commission of the current three offenses. We disagree.

“‘Armed with a firearm’ has been statutorily defined and judicially construed to 

mean having a firearm available for use, either offensively or defensively. [Citations.]” 

(People v. Osuna (2014) 225 Cal.App.4th 1020, 1029 (Osuna).) “‘It is the availability—

the ready access—of the weapon that constitutes arming.’” (People v. Bland (1995) 10 

Cal.4th 991, 997, quoting People v. Mendival (1992) 2 Cal.App.4th 562, 574; accord, 

People v. White (2014) 223 Cal.App.4th 512, 524.)

The factual findings of the Proposition 36 court are reviewed for substantial 

evidence. (People v. Dove (2004) 124 Cal.App.4th 1, 10; People v. Johnson (2003) 114 

Cal.App.4th 284, 290.) Under the applicable review standard, we examine the evidence, 

both direct and circumstantial, in light of the entire record and must indulge in favor of 

the order all presumptions as well as every logical inference that the court could have 

drawn from the evidence. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Carter

(2005) 36 Cal.4th 1114, 1156; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The 

reviewing court “uphold[s] any express or implied factual findings of the court that are 

supported by substantial evidence.” (People v. Robinson (2010) 47 Cal4th 1104, 1126.) 

Based on our review of the record, which includes relevant portions of the 

reported transcript of the trial, we conclude substantial evidence supports the express and 

implied factual findings of the Proposition 36 court in ruling defendant was armed with a 

firearm during the commission of the current offenses. The court expressly found that 

the black revolver found under covered leaves near the spot on the hillside where 
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defendant hid from the officers was the same gun the lender of the car had seen in 

defendant’s hand while in her car on a prior occasion and that she saw defendant had 

about the day of the incident. At trial, the testimony of the lender established that on a 

couple of occasions she had seen defendant with a gun. The first time was a couple of 

weeks prior to this incident when he held the gun in his hand as they were travelling in 

her car. She had loaned her car to defendant in the past. The second time was on or 

about the same day as the incident. She described the gun as black and looking old with 

a cylinder that spins, i.e., a revolver. The revolver recovered from the hillside near the 

shoes, hat, and shirt was loaded. The trial court impliedly found defendant had “ready 

access” to the gun during the commission of the current offenses. This finding is 

supported by the reasonable inference defendant necessarily had the gun with him when 

the officer first flashed his high beams and throughout the incident, because after exiting 

his car, defendant fled across the freeway and hid in the bushes where the police found 

concealed nearby his discarded clothing, shoes, and gun. 

2. “During the Commission of” Requirement Does Not Necessitate Facilitative 

Nexus

“During the commission of the current offense” (§§ 667, subd. (e)(2)(C)(iii), 

1170.12, subd. (c)(2)(C)(iii)) signifies there must be “a temporal nexus between the 

arming and the underlying felony, not a facilitative one.” (Osuna, supra, 225 

Cal.App.4th 1020, 1032; accord, People v. Hicks (2014) 231 Cal.App.4th 275, 284.) 

Defendant acknowledges these authorities but invites this court to part company with 

them and hold, instead, that “the arming and the offense [may] be separate, but ‘tethered,’ 

such that the availability of the weapon facilitates the commission of the offense.” We 

decline. His proposed definition of the above quoted phrase is contrary to established 

law and unaccompanied by persuasive argument supported by applicable authority. 

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 65; People v. Bryant, Smith, and 

Wheeler (2014) 60 Cal.4th 335, 363-364; In re S.C. (2006) 138 Cal.App.4th 396, 410.)
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DISPOSITION

The order appealed from is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.