Filed 7/10/19
                                CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FIRST APPELLATE DISTRICT

                                          DIVISION ONE


THE PEOPLE,
          Plaintiff and Respondent,
                                                       A154498
v.
DYLAN JAMES BAY,                                       (Napa County
                                                       Super. Ct. No. CR184636)
          Defendant and Appellant.


          At trial, Dylan Bay was convicted of felony counts of being a felon in possession
of a firearm and ammunition and misdemeanor counts of possessing burglary tools and
giving false information to a peace officer. Bay admitted two prior-prison-term
allegations were true, and the trial court sentenced him to three years and eight months in
prison.
          On appeal, Bay claims that insufficient evidence supports the three possession
convictions. He also claims, and the Attorney General concedes, that the trial court erred
by staying instead of striking one of the prior-prison-term enhancements. We affirm the
felony convictions for possession of a firearm and ammunition, because substantial
evidence supports a finding that the contraband was in Bay’s constructive possession.
But we reverse the misdemeanor conviction under Penal Code1 section 466 for
possession of burglary tools, because no evidence supports a finding that any such tools




          1
              All further statutory references are to the Penal Code.


                                                  1
were “upon [Bay] in his . . . possession.”2 We also agree that the prior-prison-term
enhancement should have been stricken. Otherwise, we affirm the judgment.
                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       At around 2:00 a.m. on September 9, 2017, a Napa County Sheriff’s deputy was
on patrol when he noticed a Cadillac SUV parked illegally near a popular overlook. The
deputy approached and saw three people in the vehicle, including Bay, who was sitting in
the driver’s seat. When asked what they were doing, Bay said “they were just sitting
there looking at the view and asked . . . if they were doing something wrong.” The
deputy indicated a no-parking sign and asked Bay for identification. Bay, whom the
deputy knew from prior contacts, stated that he did not have identification and provided a
false name. Knowing that Bay was on postrelease community supervision (PRCS) and
subject to search terms, the deputy asked him to get out of the vehicle.
       After Bay complied, the deputy asked him “[i]f he had any guns, knives, drugs[,]
or any other weapons on him or in the vehicle,” and Bay said, “Not that I know of.” The
deputy then conducted a pat search of Bay’s person and felt a wallet in his back pocket.
Bay admitted that the wallet contained identification in his real name. The deputy asked
why he had provided a false name, and Bay said that “[h]e was worried that he might
have a warrant.” Before searching the SUV, the deputy asked Bay again whether there
was any contraband in the vehicle. This time, Bay admitted “there was an amount of
marijuana in the small pouch of the Jansport backpack inside the vehicle.”
       While Bay was detained in the deputy’s patrol vehicle, the deputy spoke to the
other two people in the SUV, a woman in the front passenger’s seat named N.F. and a
man in the backseat named R.Z. The vehicle, which belonged to N.F., was “[e]xtremely
messy.” The deputy described the interior as having “a lot of items packed in very
tightly,” and the man “in the back appeared to have been packed in there with the items.”


       2
        As a result, we need not address Bay’s claim of instructional error involving this
conviction.

                                             2
       The backpack Bay had mentioned was “directly behind the center console,” almost
sitting on top of it, and the deputy testified that it would have been accessible by all three
people in the car. Upon searching the backpack, the deputy found marijuana, as well as a
notebook, in its front compartment. The back compartment contained a loaded .380
caliber pistol in a gun case, boxes of ammunition, a lock pick set, a bong, and a
hypodermic needle. In addition, a butterfly knife was in the console of the driver’s door.3
       The registered owner of the pistol was later determined to be S.Z., the recently
deceased boyfriend of N.F. and brother of R.Z. A piece of paper with S.Z.’s name on it
was inside the gun case. The deputy formed the impression that there was “some sort of
relationship” between Bay and N.F., but he was unaware of any direct relationship
between Bay and S.Z.
       An evidence technician testified that she performed a fingerprint analysis on the
pistol, an ammunition box, the lock pick set, and the butterfly knife, which were the only
items collected as evidence. There were no usable fingerprints on any of them. In
addition, although the technician swabbed the items for possible DNA, those samples
were never tested.
       Bay was charged with two felonies, being a felon in possession of a firearm and
being a felon in possession of ammunition, and three misdemeanors, providing false
information to a peace officer, possessing burglary tools, and carrying a switchblade
knife. It was also alleged that he had served two prior prison terms for two 2016 felony
convictions.4 Before trial, Bay stipulated that he was a felon and admitted the prior-
prison-term allegations.


       3
         A disassembled rifle in a gun case was found where R.Z. had been sitting and
some knives were “packed away” in the back of the SUV, but Bay was not charged with
possessing these items.
       4
         The charges were brought under sections 29800, subdivision (a)(1) (felon in
possession of firearm), 30305, subdivision (a) (felon in possession of ammunition),
148.9, subdivision (a) (providing false information), 466 (possessing burglary tools), and
21510 (carrying switchblade). The enhancement allegations were made under
section 667.5.


                                              3
       A jury acquitted Bay of carrying a switchblade knife and convicted him of the four
other counts. The trial court denied probation and sentenced him to a total of three years
and eight months in prison, composed of a term of two years for the firearm possession
and consecutive terms of eight months for the ammunition possession and one year for
one of the prior-prison-term enhancements. He was also sentenced to two concurrent
terms of six months in jail for providing false information and possessing burglary tools,
and a one-year term for the other prior-prison-term enhancement was imposed and
stayed.
                                             II.
                                        DISCUSSION
       A.     Substantial Evidence Supports the Convictions for Possession of a Firearm
              and Ammunition but Not the Conviction for Possession of Burglary Tools.
       Bay claims that his convictions for possession of a firearm, ammunition, and
burglary tools must be reversed because there was insufficient evidence that he knew the
backpack contained these items. We agree with the Attorney General that substantial
evidence supports the conclusion that Bay constructively possessed the backpack and its
contents, and on this basis we affirm the convictions for possession of a firearm and
ammunition. But we reverse the conviction for possession of burglary tools under
section 466, because that statute requires that a defendant have the tools not just in his or
her constructive possession but “upon him or her in his or her possession.”5
              1.     Standard of review.
       In analyzing claims such as Bay’s, “ ‘ “ ‘we review the entire record in the light
most favorable to the judgment to determine whether it contains substantial evidence—
that is, evidence that is reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]”
[Citation.] In conducting such a review, we “ ‘presume[] in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]”

       5
        We requested and received supplemental briefing from both parties on how we
should interpret this statutory language.


                                              4
[Citations.] “Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends.” ’ ” (People v. Harris (2013) 57 Cal.4th 804, 849.)
       This standard of review also applies “ ‘in cases in which the prosecution relies
mainly on circumstantial evidence. [Citation.] “ ‘Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a
reasonable doubt. “ ‘If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” ’ ”
(People v. Harris, supra, 57 Cal.4th at pp. 849–850.)
              2.      Substantial evidence supports the convictions for possession of
                      the pistol and the ammunition because the jury could reasonably
                      infer that Bay had constructive possession of the backpack.
       The firearm- and ammunition-possession offenses prohibit a felon from
“possess[ing]” or having “under custody or control” the given item (§§ 29800,
subd. (a)(1), 30305, subd. (a)(1)), and they are general-intent crimes that require knowing
possession of the prohibited item. (People v. Frutoz (2017) 8 Cal.App.5th 171, 176;
People v. Jeffers (1996) 41 Cal.App.4th 917, 922; see CALCRIM Nos. 2511, 2591.)
Possession may be actual or constructive. “ ‘A defendant has actual possession when the
weapon is in his [or her] immediate possession or control,’ ” i.e., when he or she is
actually holding or touching it. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052;
see People v. Montero (2007) 155 Cal.App.4th 1170, 1179; CALCRIM Nos. 2511,
2591.) “To establish constructive possession, the prosecution must prove a defendant
knowingly exercised a right to control the prohibited item, either directly or through
another person.” (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved
on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6.) Although a



                                               5
defendant may share possession with other people, “mere proximity” or opportunity to
access the contraband, “standing alone, is not sufficient evidence of possession.”
(Sifuentes, at p. 1417; People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)
       We agree with the Attorney General that the evidence of Bay’s knowledge of the
items in the backpack was, “not overwhelming.” But applying our limited standard of
review, we conclude there was sufficient evidence from which the jury could infer that
Bay knowingly possessed the pistol and ammunition. Contrary to Bay’s position, there
was evidence “to support the inference that the backpack belonged to [him].” (Italics and
boldface omitted.) Namely, he knew there was marijuana inside the backpack’s front
pocket, which supports the conclusion that he exercised dominion and control over the
backpack. To be sure, it is possible that the backpack was not Bay’s, especially given the
evidence tying the pistol to S.Z., and that Bay knew of the marijuana’s presence for some
reason other than that he put it there or had assumed knowing control of the backpack and
its contents. But the jury could have reasonably inferred Bay’s ownership or control of
the backpack, a type of personal container not normally shared among multiple people,
based on his knowledge of the marijuana’s particular location. (See People v. Baker
(2008) 164 Cal.App.4th 1152, 1159–1160 [a purse is “an inherently private repository for
personal items” that “is not generally an object for which two or more persons share
common use or authority”].)
       Bay argues that it is also unreasonable to infer that he was aware of the items in
the backpack’s back pocket based on his knowledge of the marijuana in the front pocket.
He provides no authority for distinguishing between the compartments of the backpack in
this manner, and we decline to do so. His knowledge of the marijuana’s presence
supported the inference that he exercised control over the backpack, which in turn
supported an inference that he exercised control over the entire backpack.
       Finally, we note that in “cases where the sufficiency of the evidence might
otherwise have been doubtful,” courts have found the evidence “strengthened by a
showing of consciousness of guilt.” (People v. Redrick (1961) 55 Cal.2d 282, 287–288.)
Bay claims that the fact he gave a fake name when initially contacted, which he explained


                                             6
he did because he thought he had a warrant, “did not support the inference that he knew
what was inside the backpack’s main compartment” and “had nothing to do with the
backpack, especially since [it] and its contents did not contain his name or any indicia in
it.” The jury was not required to credit Bay’s explanation for the misrepresentation,
however, and could have reasonably inferred that he provided a fake name because he
knew he was subject to warrantless searches and did not want the contraband in the
backpack to be discovered. Given the totality of the circumstances, substantial evidence
supports the convictions for possession of a firearm and ammunition.
              3.     The conviction for possession of burglary tools must be reversed
                     because Bay did not have the tools “upon him.”
       We reach a different result with respect to the conviction for possession of
burglary tools, based on a material difference between the elements of that offense and
the other two challenged convictions. The firearm- and ammunition-possession statutes
prohibit a felon from “possess[ing]” or having “under custody or control” the given item.
(§§ 29800, subd. (a)(1), 30305, subd. (a)(1).) In contrast, section 466 prohibits a person
from having burglary tools “upon him or her in his or her possession.” (§ 466, italics
added.) We cannot conclude that Bay was guilty under this statute because, even though
he had constructive possession of the backpack and it contained the lock pick set, he was
not carrying the backpack.
       Although we are not aware of any other state statutes using the precise phrase
“upon him or her” to refer to possession or related concepts, statutes using the phrase
“upon the person” or “on the person” are closely analogous. In People v. Wade (2016)
63 Cal.4th 137, the Supreme Court held that a defendant who wore a backpack containing
a gun had carried a loaded firearm “on the person” within the meaning of section 25850,
subdivision (a). (Wade, at pp. 139–140.) Relying on decisions interpreting “similar
statutory language,” including “ ‘ “upon the person” ’ ” and “ ‘upon his person,’ ” the
Court determined that “[t]he backpack was on [the defendant’s] person and, accordingly,
anything inside that backpack was also on his person.” (Id. at pp. 140–142.)




                                             7
       In the course of its analysis, Wade addressed an earlier Court of Appeal decision,
People v. Pellecer (2013) 215 Cal.App.4th 508, which had reversed a conviction for
“carrying a dirk or dagger concealed ‘upon his or her person’ under former
section 12020, subdivision (a)(4) (now § 21310)” where “the defendant was seen ‘leaning
on a closed backpack’ that contained three knives.” (Wade, supra, 63 Cal.4th at p. 145.)
Wade distinguished Pellecer on several grounds, including that “the [Pellecer] defendant
was merely leaning on the backpack and thus, arguably, had less immediate control over
its contents than [the] defendant had in [its] case, where he was actually wearing the
backpack.” (Wade, at p. 146.) Thus, Wade “disapprove[d] [Pellecer] . . . to the extent its
analysis [was] inconsistent with [the Supreme Court’s] opinion, although not necessarily
its holding.” (Ibid.)
       Here, Bay was never seen even touching the backpack, much less wearing it.
Consistent with Wade and the decisions it interpreted, we conclude that the backpack was
therefore not “upon [Bay] in his . . . possession” within the meaning of section 466. As a
result, the conviction under that statute must be reversed.
       B.     The Second Prior-prison-term Enhancement Must Be Stricken on Remand.
       Bay also contends that the trial court erred by imposing and staying a one-year
sentence for the second prior-prison-term enhancement instead of striking the
enhancement. We accept the Attorney General’s concession that the enhancement must
be stricken on remand.
       At sentencing, the trial court addressed Bay as follows: “With regards to the
prison priors that you admitted, I am going to increase your sentence by one year for the
[first] prison prior . . . , and with regards to the second [such enhancement] I’m going to
impose that one-year term and stay it. So I’m not going to include it. So your total
sentence in this matter shall be three years, eight months.” The court did not address its
reasons for staying the term for the second enhancement.
       Under section 1385, a trial court may “strike or dismiss an enhancement” or “the
additional punishment for that enhancement in the furtherance of justice.” (§ 1385,
subd. (b)(1).) “The trial court has no authority to stay an enhancement, rather than strike


                                             8
it—not, at least, when the only basis for doing either is its own discretionary sense of
justice.” (People v. Lopez (2004) 119 Cal.App.4th 355, 364; accord People v. Brewer
(2014) 225 Cal.App.4th 98, 104.) Rather, the only authority for staying an enhancement
is California Rules of Court, rule 4.447, which applies when “an enhancement that
otherwise would have to be either imposed or stricken is barred by an overriding statutory
prohibition. In that situation—and that situation only—the trial court can and should stay
the enhancement.” (Lopez, at p. 365; accord Brewer, at p. 104.) We agree with the
parties that it appears that the trial court here intended to exercise its discretion under
section 1385, since there was no statute precluding Bay from being sentenced on both
enhancements and rule 4.447 thus does not apply. On remand, the court is directed to
strike the second enhancement.
                                              III.
                                         DISPOSITION
       The conviction for possession of burglary tools under section 466 is reversed. The
sentence is vacated, and the matter is remanded for resentencing consistent with this
opinion. In all other aspects, the judgment is affirmed.




                                               9
                                 _________________________
                                 Humes, P.J.




WE CONCUR:




_________________________
Margulies, J.




_________________________
Sanchez, J.




People v. Bay A154498


                            10
Trial Court:

      Superior Court of the County of Napa



Trial Judge:

      Hon. Rodney G. Stone



Counsel for Defendant and Appellant:

      Richard A. Tamor, Tamor & Tamor, under appointment by the Court of Appeal


Counsel for Plaintiff and Respondent:

      Xavier Becerra, Attorney General

      Gerald A. Engler, Chief Assistant Attorney General

      Jeffrey M. Laurence, Senior Assistant Attorney General

      Catherine A. Rivlin, Supervising Deputy Attorney General

      Bruce M. Slavin, Deputy Attorney General




People v. Bay A154498


                                         11
