People v. Tyler CA3

Filed 6/3/21 P. v. Tyler CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C090259

Plaintiff and Respondent, (Super. Ct. No. 16FE018887)

v.

TREVELL TYLER,

Defendant and Appellant.

A jury found defendant Trevell Tyler guilty of assault with a firearm (Pen. Code, § 245, subd. (a); count two),1 and the trial court sentenced him to the lower term of two years in state prison. Defendant appeals, arguing the court erred when it relied on section 1203, subdivision (e)(2) to conclude he was presumptively ineligible for probation. We agree that remand for resentencing is required.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND Evidence from Trial Testimony and other evidence introduced at defendant’s trial showed that over a period of approximately three weeks, Angela S. purchased marijuana from and engaged in sexually intimate behavior with defendant’s brother, Trevon Tyler (Trevon). One evening, Angela S. and Trevon were together in Angela S.’s home, when they began to argue. As the argument escalated, Trevon took a bullet out of his pocket and said he could kill her with one bullet. He repeatedly grabbed Angela S. by the throat and hit her in the head. Angela S. fled from the house, and when she returned, Trevon and her car, along with her cell phone and some of her belongings, were gone. After Angela S. returned home, she went to her neighbor Kristopher B.’s house and asked him to bring his guns back to her house. He helped her retrieve her car and belongings using a phone location application to find her cell phone, and they returned to her home. She had Kristopher B.’s handgun and he had his shotgun. Eventually, Trevon knocked on the door. Angela S. testified that Kristopher B. opened the door holding the shotgun pointed down. Angela S. could not see Trevon, but heard him say “Whoa, whoa, whoa” and ask for his cell phone, which he had left behind. Angela S. could see defendant in the doorway. She saw defendant lift his shirt and pull out a silver revolver, which he pointed down and covered with the other hand. Trevon asked to enter the house but Kristopher B. refused to let him inside. Angela S., still holding Kristopher B.’s handgun, heard their voices escalating and went to the garage. Kristopher B. testified that when he first opened the door, the man with Trevon pulled a silver semiautomatic pistol from his waistband and aimed it at Kristopher B.’s head.2 He saw a bullet in the chamber. However, a firearms expert testified that it would