People v. Bayse CA3

Filed 11/24/15 P. v. Bayse CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.