Opinion
G051725
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS RICHARD WYNN, Defendant and Appellant.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 01HF1221) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed. David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Douglas Richard Wynn appeals from an order denying his petition for resentencing under Proposition 36. The denial was based on the trial court's finding Wynn was armed with a firearm during his commitment offense. Wynn contends there is insufficient evidence to support that finding, but we disagree and affirm the trial court's order.
FACTS AND PROCEDURAL BACKGROUND
In 2001, Wynn used a stolen credit card to purchase clothing at a store in South Coast Plaza. When he tried to exchange the clothing two days later, he was confronted by security and fled the scene. He then led police on a high-speed chase before crashing his vehicle, a Cadillac Escalade, into a wall. Upon searching the vehicle, officers found a stolen check and credit cards. They also found a backpack on the floorboard behind the passenger seat. At the bottom of the backpack there was a small, .38-caliber semiautomatic handgun that was loaded with five bullets.
Wynn was convicted by jury of burglary, acquiring an access card with the intent to defraud, fraudulently using an access card, receiving stolen property, check fraud, recklessly evading the police and possessing a firearm while a felon. Because he had two prior strikes to his name, the trial court sentenced him to 25 years to life in prison. On appeal, we reversed Wynn's conviction for acquiring an access card with fraudulent intent but otherwise affirmed the judgment. (People v. Wynn (Feb. 24, 2005, G033141) [nonpub. opn.].)
In 2015, Wynn petitioned to have his sentence recalled and be resentenced pursuant to Proposition 36. The trial court denied the petition on the basis Wynn was armed with a firearm while he was evading the police. In that regard, the court stated, "[I]t seems very clear that Mr. Wynn was armed with a firearm when on the floor behind the passenger seat in a bag within immediate reach of the driver there's a loaded firearm. I can't see any way around finding that Mr. Wynn was armed during the commission of [that] offense."
DISCUSSION
Wynn claims there is insufficient evidence to support the trial court's finding he was armed with a firearm while he was evading the police. We disagree.
In 2012, the voters approved Proposition 36, which amended the Three Strikes law. (See Pen. Code, § 1170.126.) As amended, the law allows defendants such as Wynn to petition to have their sentences recalled and be resentenced as second strike offenders if their commitment offense was not a serious or violent felony, none of the enumerated disqualifying circumstances apply, and such resentencing would not pose an unreasonable risk to public safety. (Id., at subds. (e), (f).) One of the disqualifying factors is that the defendant was "armed with a firearm" during his commitment offense. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).)
A person is armed with a firearm during a crime when he has ready access to a gun for offensive or defensive purposes. (People v. Bland (1995) 10 Cal.4th 991, 997; People v. White (2014) 223 Cal.App.4th 512, 524.) Since access to the weapon is the key consideration, the defendant need not physically carry a firearm on his person to be armed for purposes of Proposition 36. (People v. Superior Court (Cervantes) 225 Cal.App.4th 1007, 1013.) Indeed it will suffice if the defendant was vicariously armed during his commitment offense. (People v. Caraballo (2016) 246 Cal.App.4th 936.) "'"[I]t is the availability - the ready access - of the weapon that constitutes arming."' [Citations.]" (People v. White, supra, 223 Cal.App.4th at p. 523.)
In reviewing the trial court's finding Wynn was armed with a firearm during his commitment offense, we apply the deferential substantial evidence test. (People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331; see generally People v. Trinh (2014) 59 Cal.4th 216, 236 [trial court's factual findings are reviewed for substantial evidence].) Under that test, we do not reweigh the evidence or resolve evidentiary conflicts but simply look to see if the court's decision is supported by evidence that is reasonable, credible and of solid value. (People v. Manibusan (2013) 58 Cal.4th 40, 87; People v. Alexander (2010) 49 Cal.4th 846, 917.) Indeed, it is "inappropriate" for a reviewing court to reweigh the evidence and draw inferences that were rejected by the trier of fact. (People v. Klvana (1992) 11 Cal.App.4th 1679, 1703.)
Yet, that is essentially what Wynn asks us to do. Wynn does not dispute that a firearm was found in the backpack behind the passenger seat of the vehicle he was driving. However, he insists the court's armed finding lacks evidentiary support because "[t]here was no testimony concerning the interior dimensions of the vehicle that would enable the court to determine how far from the driver's seat the gun was actually located . . . . Nor was there any testimony concerning the layout of such features as consoles or armrests that might interfere with the ability of the driver to reach the location of the gun." Absent specific testimony in this regard, Wynn claims there is insufficient evidence to support a finding he had access to the gun while he was driving.
Those would have been good arguments to make in the trial court. Instead, defense counsel conceded that if, as the evidence showed, the gun was located behind the passenger seat in Wynn's vehicle, it would have been within arm's reach of Wynn while he was driving. Fortunately for Wynn, we are not bound by what the parties did or did not argue below in a sufficiency-of-the-evidence case. Our job, as noted above, is to determine whether there is substantial evidence to support the challenged decision. In so doing, we "'review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence." (People v. Manibusan, supra, 58 Cal.4th at p. 87.) We must also keep in mind, "A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'"'" the trier of fact's decision. (Ibid.)
Everyone knows drivers have the ability to reach around their seat when they are operating a motor vehicle. They can't always obtain objects that are under the passenger seat, but Wynn's gun-laden backpack was found on the floorboard behind the passenger seat, which is an area that is typically accessible to the driver. It is certainly not difficult to envision Wynn being able to reach over to get the backpack while he was fleeing the police. And of course had he done so, he would then have been able to obtain the gun for offensive or defensive purposes. Since this scenario is entirely reasonable and solidly supported by the evidence, we are powerless to disturb the trial court's finding Wynn was armed with a firearm during his commitment offense.
Wynn also contends the trial court relied on legally inapposite cases in finding he was armed. However, because the trial court's decision is supported by substantial evidence, the thought processes behind that decision are irrelevant. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; Florio v. Lau (1998) 68 Cal.App.4th 637, 653 [appellate court only reviews the trial court's decision, not its reasoning].)
DISPOSITION
The order denying Wynn's petition to recall his sentence and be resentenced under Proposition 36 is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.