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People v. Bay

California Court of Appeals, First District, First Division

July 10, 2019

THE PEOPLE, Plaintiff and Respondent,
DYLAN JAMES BAY, Defendant and Appellant.

          Superior Court of the County No. CR184636 of Napa Hon. Rodney G. Stone Judge

          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

          Humes, P.J.

         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 Code[1] section 466 for possession of burglary tools, because no evidence supports a finding that any such tools 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.


         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.”

         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 ...

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