Filed 11/24/15 P. v. Bayse CA3
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C077730

                   Plaintiff and Respondent,                                     (Super. Ct. No. 96F04096)

         v.

RICHARD LEE BAYSE,

                   Defendant and Appellant.



         In 1997 a jury found defendant Richard Lee Bayse1 guilty of being a felon in
possession of a firearm (Pen. Code, § 12021.1, subd. (a))2 and found true the allegation
he had two prior strike convictions. The trial court sentenced him to a term of 25 years to
life. In 2013 defendant filed two petitions to recall his sentence pursuant to the Three
Strikes Reform Act of 2012. (Prop. 36, § 1170.126.) The trial court denied the petitions,
finding defendant was ineligible for resentencing because he was armed during the



1  Defendant’s last name is spelled “Basye” on some of the documents in the clerk’s
transcript, including a letter defendant wrote to the trial court.
2   Undesignated statutory references are to the Penal Code.

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commission of the offense. On appeal, defendant contends the trial court erred in finding
him ineligible for resentencing as the trial court could not find he was armed with a
firearm because (1) that fact was not pleaded and proven as part of his conviction for
being a felon in possession of a firearm, and (2) the gun was not available for him to use
offensively or defensively. We reject both contentions and affirm the trial court’s order.
                                      BACKGROUND
       On May 23, 1996, a Sacramento County Sheriff’s deputy stopped a vehicle in
which defendant was one of four occupants. Defendant was seated in the back seat on
the passenger side. Another patrol unit arrived, and as the deputies were getting the
occupants out of the vehicle, defendant reached into his pants pocket and pulled out a
gram scale and a plastic baggie containing white powder. Defendant put the baggie in his
mouth and swallowed it. The first deputy then pulled defendant out of the vehicle, put
him on the ground and handcuffed him, and searched the vehicle. Inside the vehicle,
directly under the seat where defendant had been sitting, the deputy found a loaded
Raven Arms .25-caliber semiautomatic handgun. Deputies conducted an additional
search of defendant’s home and, in his bedroom, found a brown leather shoulder holster
and a box of .25-caliber ammunition. The ammunition loaded into the gun and the
ammunition found in defendant’s home were the same caliber, had identical head stamps,
and were manufactured on approximately the same date. There were seven rounds
loaded into the gun and eight rounds missing from the box of ammunition. The Raven
handgun has a unique shape. The leather holster had taken on that shape. No other
handgun would have fit the holster.
       Defendant filed two petitions to recall his sentence under section 1170.126. The
District Attorney’s office filed opposition to both petitions. The trial court noted that for
purposes of Proposition 36 resentencing, “[a] person is considered armed if he carries a
firearm or has it available for use in either offense or defense in connection with the
crime charged. Is the gun readily accessible for his use.

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       “Here, based on the trial transcript, the firearm was nearby and available. And
moreover, there’s strong evidence to suggest it actually is [defendant’s] gun.” The trial
court found it particularly relevant that the holster had contained the uniquely shaped
Raven. “Seems to me that the evidence is very strong that it is his handgun. So I know
there was lots of trial testimony from the defense as to witnesses testifying as to where
[defendant] lived in May. But it seems clear from viewing the transcript that he actually
had not only had possession, he had the right to possess it, and it was certainly readily
available to him, knew it was his handgun because of the description previously given.”
The court found defendant was disqualified from Proposition 36 resentencing because he
was armed when he committed the offense. Accordingly, the trial court denied the
petitions for resentencing.
                                      DISCUSSION
                                              I
       Defendant contends he could not be found ineligible for resentencing under
section 1170.126 because it was not pleaded and proven that he was armed with a firearm
in the commission of his crime.
       Under section 1170.126 a defendant serving a life term for a third strike felony
that is neither serious nor violent may petition for resentencing. (§ 1170.126, subd. (b).)
There are, however, a number of disqualifying factors that render an offense ineligible for
recall of sentence. (§ 1170.126, subd. (e)(2).) As relevant to this case, one such
disqualifying factor is if “[d]uring the commission of the current offense, the defendant
used a firearm, was armed with a firearm or deadly weapon, or intended to cause great
bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii), 1170.12,
subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) “ ‘[A]rmed with a firearm’ ” means “having
a firearm available for offensive or defensive use.” (People v. Osuna (2014)
225 Cal.App.4th 1020, 1029 (Osuna).)



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       Defendant argues this provision is subject to the pleading and proof requirements
of section 667. This interpretation of Proposition 36 has been previously rejected by two
panels of this court (People v. Elder (2014) 227 Cal.App.4th 1308, 1311-1312 (Elder);
People v. Bradford (2014) 227 Cal.App.4th 1322, 1333-1336), as well as every other
Court of Appeal to consider it (see Osuna, supra, 225 Cal.App.4th at p. 1033; People v.
Blakely (2014) 225 Cal.App.4th 1042, 1058; People v. White (2014) 223 Cal.App.4th
512, 526-527). These cases find that the omission of a pleading and proof requirement in
section 1170.126 by the drafters of Proposition 36 was intentional and resolves the
question, rendering any other principles of statutory construction superfluous. (See
Elder, at pp. 1314-1315.)
       Defendant submits we should reject these authorities but gives us no good reason
to do so. We agree with the uniform authority rejecting defendant’s claim, and find there
is no requirement the arming factor must be pleaded and proven before being considered
by the trial court to determine that a defendant is ineligible for resentencing under
section 1170.126.
       Defendant also argues he was not armed under Proposition 36, relying on cases
interpreting the meaning of being armed relative to firearm enhancements, which provide
for increased punishment when a defendant is armed with a firearm “in the commission
or attempted commission of [the underlying] felony.” (§ 12022, subd. (a)(1); see
People v. Pitto (2008) 43 Cal.4th 228, 239-240; In Tameka C. (2000) 22 Cal.4th 190,
196.) Those authorities require a “facilitative nexus” between being armed and the
underlying offense.
       Based on the differences in statutory language and purposes of the statutory
schemes, this claim has been rejected by both appellate panels that considered it. (Elder,
supra, 227 Cal.App.4th at pp. 1312-1314; Osuna, supra, 225 Cal.App.4th at p. 1032.) As
explained by the Osuna court, there was no facilitative nexus because defendant “having
the firearm available for use did not further his illegal possession of it. There was,

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however, a temporal nexus. Since [Proposition 36] uses the phrase ‘[d]uring the
commission of the current offense,’ and not in the commission of the current offense
(§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the
imposition of additional punishment but rather eligibility for reduced punishment, we
conclude the literal language of [Proposition 36] disqualifies an inmate from resentencing
if he or she was armed with a firearm during the unlawful possession of that firearm.”
(Osuna, supra, 225 Cal.App.4th at p. 1032, italics added.) We find this reasoning
persuasive and that the armed exclusion can apply to a felon in possession of a firearm.
                                              II
       Defendant also contends he was not armed within the meaning of Proposition 36,
because the gun was not available for him to use offensively or defensively when he was
apprehended. He claims it would have been impossible for him to obtain the gun from
underneath the bench seat and use it.
       We review the trial court’s finding that defendant was armed under the substantial
evidence standard. (See People v. Guilford (2014) 228 Cal.App.4th 651, 661.) Under
this standard, “ ‘[w]e review the whole record in a light most favorable to the [order] to
determine whether it contains substantial evidence, i.e., evidence that is credible and of
solid value, from which a rational trier of fact could find beyond a reasonable doubt that
the accused committed the offense.’ [Citations.]” (Ibid.) “ ‘In applying this test, we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. [Citation.] . . . A reversal for insufficient evidence “is unwarranted unless
it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support’ ” the jury’s verdict. [Citation.]’ ” (People v. Manibusan (2013) 58 Cal.4th 40,
87.)
       “A defendant is armed if the defendant has the specified weapon available for use,
either offensively or defensively” (People v. Bland (1995) 10 Cal.4th 991, 997) “at any

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time during the commission” (id. at p. 999) of the offense. “[P]ossession of a firearm by
a felon is a continuing offense. (Wright v. Superior Court (1997) 15 Cal.4th 521, 525,
fn. 1 . . . ; see People v. Warren (1940) 16 Cal.2d 103, 112 . . . .)” (People v. Mason
(2014) 232 Cal.App.4th 355, 365.) Where the offense is a continuing one, the question is
whether “at any time during the commission” of the offense, the defendant had ready
access to the firearm. (Bland, at p. 999, italics added.)
       Here, the evidence supports the reasonable inference that even if defendant did not
have ready access to the gun in the car, at some point during defendant’s continuous
possession of the firearm, he had ready access to it. Defendant was seated directly above
the gun in the car. The ammunition loaded into the gun and the ammunition found in
defendant’s home matched: they were the same caliber, had identical head stamps, and
were manufactured on approximately the same date. The handgun had a unique shape
that matched the leather holster found in defendant’s home. The shape was so distinctive,
no other handgun would have fit in the holster. Thus, substantial evidence supports the
trial court’s finding that defendant was “armed with a firearm” in the commission of the
possession offense.
                                      DISPOSITION
       The order is affirmed.


                                                            RAYE              , P. J.


We concur:


      NICHOLSON             , J.


      MAURO                 , J.




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