People v. Byers, B295235

CourtCalifornia Court of Appeals
Writing for the CourtDHANIDINA, J.
Citation53 Cal.App.5th 1106,268 Cal.Rptr.3d 260
Parties The PEOPLE, Plaintiff and Respondent, v. Clifford BYERS, Defendant and Appellant.
Decision Date25 August 2020
Docket NumberB295235

53 Cal.App.5th 1106
268 Cal.Rptr.3d 260

The PEOPLE, Plaintiff and Respondent,
v.
Clifford BYERS, Defendant and Appellant.

B295235

Court of Appeal, Second District, Division 3, California.

Filed August 25, 2020
As Modified on Denial of Rehearing September 22, 2020


Maria Morrison, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.

DHANIDINA, J.

268 Cal.Rptr.3d 262
53 Cal.App.5th 1108

Under Proposition 36, the Three Strikes Reform Act of 2012 (the act), Clifford Byers petitioned for resentencing on his conviction of possession of a firearm with a prior. The trial court found he was ineligible for resentencing because Byers was armed with a firearm during the commission of that offense. Byers appeals on the ground there was insufficient evidence he was armed with a firearm. We agree and therefore reverse the order.

BACKGROUND

In 1998, Byers was convicted of numerous drug-related crimes. As relevant here, he was also convicted of count 20 for possessing a firearm with a prior (former Pen. Code,1 § 12021.1 ). Based on prior strikes, Byers was sentenced to 75 years to life in prison. He was also sentenced to a concurrent

53 Cal.App.5th 1109

25-years-to-life term on count 20. A different panel of this division affirmed the judgment of conviction. (People v. Byers (May 23, 2000, B127027) [nonpub. opn.].)2

In 2012, Byers petitioned for resentencing under the act.3 By its terms, a prisoner serving a third strike sentence for a nonserious or nonviolent felony may be resentenced as a second striker if the prisoner does not pose an unreasonable risk of danger to public safety. The trial court found that Byers was ineligible for resentencing due to weight enhancements that had been found true. Byers appealed, and we affirmed the order in part. ( People v. Byers (June 8, 2016, B260487), at p. 5, 2016 WL 3342757 [nonpub. opn.].) However, we reversed and remanded the case for the trial court to reconsider Byers's eligibility for resentencing on certain counts, including count 20 for possessing a firearm with a prior. As to count 20, we noted that Byers's eligibility for resentencing depended on whether he was armed during the commission of the offense. ( Id. at p. 3.)

On remand and after briefing and an evidentiary hearing, the trial court found Byers eligible for resentencing on all counts before it except count 20. The evidence, as summarized in our prior opinion affirming the judgment of conviction, relevant to count 20 was as follows.

In 1997, law enforcement was surveilling Byers for drug trafficking. On June 24, 1997, at 7:00 a.m., police saw Byers at a single family residence on New York Drive where he had been seen three to four times before. That morning, Byers drove to Las Vegas. He returned in the evening to a different residence, where he was arrested. This residence was about four miles from the house on New York Drive. That same day, police searched the residence on New York Drive.4 They found an invoice and garbage bags full of records

268 Cal.Rptr.3d 263

bearing Byers's name. A car belonging to Byers was parked in the garage. A loaded firearm was found in a dresser drawer in the master bedroom, and a second firearm was recovered from a downstairs closet.

Based on this evidence, the trial court denied the petition as to count 20. The trial court reasoned that possessing a firearm is a continuing offense and, during the course of Byers's possession, he had the firearms available for use at different points in time. As Byers was seen coming to and from the residence on New York Drive over a period of days, the trial court found it of no moment that Byers did not have the guns within immediate reach at the

53 Cal.App.5th 1110

time they were found. Hence, the trial court concluded that Byers was armed with a deadly weapon and therefore ineligible for resentencing on count 20.

DISCUSSION

We review a resentencing eligibility determination for substantial evidence to the extent it was based on evidence in the record of conviction. ( People v. Perez (2018) 4 Cal.5th 1055, 1066, 232 Cal.Rptr.3d 51, 416 P.3d 42.) We "view the evidence in the light most favorable to the trial court's findings without reassessing the credibility of witnesses or resolving evidentiary conflicts." ( People v. Thomas (2019) 39 Cal.App.5th 930, 935–936, 252 Cal.Rptr.3d 718.) We "determine if there was sufficient evidence for the trial court to conclude that the prosecutor did not prove that the petitioner is ineligible for resentencing beyond a reasonable doubt." ( Perez , at p. 1066, 232 Cal.Rptr.3d 51, 416 P.3d 42.)

A conviction of possession of a firearm by a felon is neither a serious nor a violent felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).) A defendant is therefore eligible for resentencing on such a conviction under the act unless, during commission of the current offense, the defendant was armed with a firearm. (§ 667, subd. (e)(2)(c)(iii); People v. Johnson (2015) 61 Cal.4th 674, 681, 189 Cal.Rptr.3d 794, 352 P.3d 366.) Stated otherwise, a defendant is ineligible for resentencing if he was armed with a firearm during the unlawful possession of that firearm. ( People v. Hicks (2014) 231 Cal.App.4th 275, 284, 179 Cal.Rptr.3d 703.)

Being armed with a firearm is to be distinguished from possessing one. Possessing a firearm can be either actual, as when it is in the defendant's immediate possession, or it can be constructive, as when it is under the defendant's dominion or control. ( People v. Osuna (2014) 225 Cal.App.4th 1020, 1029–1030, 171 Cal.Rptr.3d 55.) In contrast, being armed with a firearm means having it "available for use, either offensively or defensively." ( People v. Blakely (2014) 225 Cal.App.4th 1042, 1051, 171 Cal.Rptr.3d 70 ; People v. Bland (1995) 10 Cal.4th 991, 997, 43 Cal.Rptr.2d 77, 898 P.2d 391.) Also, a finding that a felon was armed during his possession of a firearm requires "a temporal nexus between the arming and the underlying felony." ( People v. Hicks , supra , 231 Cal.App.4th at p. 284, 179 Cal.Rptr.3d 703 ; accord, People v. Cruz (2017) 15 Cal.App.5th 1105, 1111–1112, 224 Cal.Rptr.3d 77.) Thus, a defendant is armed with a weapon even if it is not on his person if he knows it is in a place readily accessible to him. ( People v. White (2016) ...

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3 practice notes
  • People v. Phouamkha, A164249
    • United States
    • California Court of Appeals
    • June 29, 2022
    ...of a firearm by a felon is neither a serious nor a violent felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).)" (People v. Byers (2020) 53 Cal.App.5th 1106, 1110.) --------- ...
  • People v. Miranda, B308583
    • United States
    • California Court of Appeals
    • August 24, 2021
    ...when he was detained outside the front door and two guns were found inside his apartment].) Appellant relies on People v. Byers (2020) 53 Cal.App.5th 1106 (Byers), but it is factually dissimilar. Byers discussed the difference between being “armed” with a firearm and “possession” of a firea......
  • People v. Cathy, B311712
    • United States
    • California Court of Appeals
    • August 23, 2022
    ...Furthermore, the jury's verdict that Cathy 4 was a felon in possession of a firearm, while not dispositive (see People v. Byers (2020) 53 Cal.App.5th 1106, 1111 -1112), supports the finding that Cathy had ready access to a firearm. There was substantial evidence Cathy was armed during his o......
3 cases
  • People v. Phouamkha, A164249
    • United States
    • California Court of Appeals
    • June 29, 2022
    ...of a firearm by a felon is neither a serious nor a violent felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).)" (People v. Byers (2020) 53 Cal.App.5th 1106, 1110.) --------- ...
  • People v. Miranda, B308583
    • United States
    • California Court of Appeals
    • August 24, 2021
    ...when he was detained outside the front door and two guns were found inside his apartment].) Appellant relies on People v. Byers (2020) 53 Cal.App.5th 1106 (Byers), but it is factually dissimilar. Byers discussed the difference between being “armed” with a firearm and “possession” of a firea......
  • People v. Cathy, B311712
    • United States
    • California Court of Appeals
    • August 23, 2022
    ...Furthermore, the jury's verdict that Cathy 4 was a felon in possession of a firearm, while not dispositive (see People v. Byers (2020) 53 Cal.App.5th 1106, 1111 -1112), supports the finding that Cathy had ready access to a firearm. There was substantial evidence Cathy was armed during his o......

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