Filed 8/25/20
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION THREE


 THE PEOPLE,                         B295235

         Plaintiff and Respondent,   (Los Angeles County
                                     Super. Ct. No. BA109527)
         v.

 CLIFFORD BYERS,

         Defendant and Appellant.



      APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Reversed with
direction.
      Maria Morrison, 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.
                      ——————————
       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

      1 All   further statutory references are to the Penal Code.
      2 Byers had argued that there was insufficient evidence to
support his conviction of count 20, but the court declined to
address the argument because it had been raised for the first
time in the reply brief. (People v. Byers, supra, B127027, at p. 20,
fn. 3.)
      3 The act amended sections 667 and 1170.12 and added
section 1170.126.




                                   2
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 [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.


      4 The record does not show what time they searched the
house that day.




                                 3
       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.) 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.) 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.)
       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.)
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.)




                                 4
       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.) 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; People v. Bland
(1995) 10 Cal.4th 991, 997.) 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; accord, People v. Cruz
(2017) 15 Cal.App.5th 1105, 1111–1112.) 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.)
       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, 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.) The court of appeal agreed, noting that




                                 5
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.)
       The defendant in People v. Elder (2014) 227 Cal.App.4th
1308 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; see, e.g., People v. Hicks, supra, 231 Cal.App.4th at
pp. 274–275 [defendant arrested outside apartment where he had
left a gun]; People v. Superior Court (Cervantes) (2014) 225
Cal.App.4th 1007, 1011 [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.5

      5 Inhis declaration in support of the petition, Byers said
that one gun belonged to his wife and was kept in a lock box, to
be taken out for safety reasons when Byers was not there.




                                6
       These facts bring Byers closer to the hypothetical parolee
described in People v. Osuna, supra, 225 Cal.App.4th at page
1030: “[S]uppose a parolee’s residence (in which only he lives) is
searched and a firearm is found next to his bed. The parolee is in
possession of the firearm, because it is under his dominion and
control. If he is not home at the time, however, he is not armed
with the firearm, because it is not readily available to him for
offensive or defensive use. Accordingly, possessing a firearm does
not necessarily constitute being armed with a firearm.”
       In concluding that Byers was ineligible for resentencing,
the trial court below noted that possession of a firearm is a
continuing offense, meaning that the proscribed conduct may
extend over an indefinite period. (See People v. Mason (2014)
232 Cal.App.4th 355, 365.) The trial court then observed that
Byers went to and from the house over a period of days and had
been there on the morning he was arrested. From this, the trial
court concluded there was sufficient evidence Byers was armed
with the firearms when he was at his house.
       This reasoning appears to equate constructive possession6
of a firearm with a finding he was armed with them. But the two
are not synonymous. “[C]onstructive possession does not equate
to ‘armed’ possession without at least some indication of ready
access in close temporal proximity to the discovery of the offense.”
(People v. Valdez (2017) 10 Cal.App.5th 1338, 1361 (dis. opn. of
Duarte, J.).) “[N]ot every commitment offense for unlawful


Byers’s relative brought the second gun to the house while Byers
was out of town.
      6 Aswe have indicated, there is no evidence Byers actually
possessed the firearms.




                                 7
possession of a gun necessarily involves being armed with the
gun, if the gun is not otherwise available for immediate use in
connection with its possession, e.g., where it is under a
defendant’s dominion and control in a location not readily
accessible to him at the time of its discovery.” (People v. Elder,
supra, 227 Cal.App.4th at pp. 1313–1314.) Equating constructive
possession of a firearm with being armed renders meaningless
the requirements of ready access and temporal nexus. (Valdez, at
p. 1358 (dis. opn. of Duarte, J.).) Byers was miles away from the
firearms when they were found and, moreover, there was no
evidence connecting him to those firearms other than that they
were in a house where he had been seen earlier in the day and
where his car was parked and documents bearing his name were
found. Therefore, there is insufficient evidence he was armed
with a firearm during the offense of possessing the firearm.
                          DISPOSITION
       The order is reversed. The trial court is directed to find
Clifford Byers eligible for resentencing on count 20.
       CERTIFED FOR PUBLICATION.



                                      DHANIDINA, J.

We concur:



             EDMON, P. J.



             EGERTON, J.




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