People v. Byers

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.