People v. Byers

• Decision Date: 25 August 2020
• Docket Number: B295235
• Citation: 53 Cal.App.5th 1106,268 Cal.Rptr.3d 260
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clifford BYERS, Defendant and Appellant.

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.

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 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 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 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) 243 Cal.App.4th 1354, 1362, 197 Cal.Rptr.3d 397.)

Cases holding that the defendant was armed with a firearm while also in possession of a firearm have generally been based on fact patterns in which the defendant was close to the firearm near the time of the firearm's discovery. In People v. White , supra , 243 Cal.App.4th at page 1358, 197 Cal.Rptr.3d 397, for example, officers saw the defendant carrying a fanny pack. The officers lost sight of the defendant. When they saw him a few minutes later, the fanny pack looked less full. Officers found a gun in a trash can along the path the defendant had walked. Two bullets bearing the same make as the gun were in the fanny pack. The defendant was convicted of possession of a firearm, and the trial court denied his subsequent petition for resentencing because he was armed during the commission of his offense of possessing the firearm. ( Id. at p. 1359, 197 Cal.Rptr.3d 397.) The court of appeal agreed, noting that the jury's finding that the defendant possessed the gun necessarily implied he was aware it was hidden in the trash can, and it was readily accessible to him when he walked by the trash can. ( Id. at p. 1361, 197 Cal.Rptr.3d 397.)

The defendant in People v. Elder (2014) 227 Cal.App.4th 1308, 174 Cal.Rptr.3d 795 was similarly armed so as to preclude eligibility for resentencing. In Elder , a task force executing a search warrant found the defendant outside the front of his apartment. A gun was inside the apartment on a shelf, and another gun was in an unlocked safe in a bedroom. Police also found a photograph of the defendant holding a gun identical in appearance to the gun on the shelf. This was sufficient evidence that the defendant actually possessed the guns or had dominion and control over them such that they were readily available for his use. ( Id. at p. 1317, 174 Cal.Rptr.3d 795 ; see, e.g., People v. Hicks , supra , 231 Cal.App.4th at pp. 274–275, 179 Cal.Rptr.3d 703 [defendant arrested outside apartment where he had left a gun]; People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1011, 171 Cal.Rptr.3d 86 [defendant in doorway of home; gun in bedroom].)

The facts here are not like those in White and Elder . Here, Byers was nowhere near the guns when they were discovered at the house on New York Drive. He was four miles away, and he had not been at the house since early that morning. Although Byers had been seen at the house three or four times previously, there was no evidence Byers was ever seen with or even near the guns. There was no evidence of when the guns were placed in the house, much less that Byers placed them there.

These facts bring Byers closer to the hypothetical parolee described in People v. Osuna , supra , 225 Cal.App.4th at page 1030, 171 Cal.Rptr.3d 55 : "[S]uppose a parolee's residence (in which only he lives) is searched and a firearm is...