P. v. Abernathy

Filed 9/6/06 P. v. Abernathy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Michael Lewis, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

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Stephanie Abernathy appeals the revocation of her probation. She contends that insufficient evidence supports the revocation. We disagree and will affirm.

Facts

On September 16, 2005, Sheriff's Deputy David Kessler and two other officers responded to a residence on Virginia Street. Gerald Feliz answered the door and allowed them into the home. Inside, the officers saw appellant, Stephanie Abernathy, sitting on a bed in the corner of the living room. Feliz joined Abernathy on the bed.

Officers searched the home and found two separate containers of live ammunition in the living room where appellant and Feliz were seated. The first container found was a small opaque nylon bag, approximately four inches by six inches and held 28 live bullets. The other was a green ammunition box approximately four inches by eight inches by 10 inches deep and held 107 live bullets and lead balls. Both containers held a total of 96 live bullets of various calibers plus 39 lead balls. The nylon bag was found in plain view on the ground between the bed and a make-shift night stand, and the ammunition box was found underneath the bed.

After being advised of his rights, Feliz admitted the ammunition was his. He stated he was collecting ammunition in an attempt to keep peace between rival gangs. He knew that it was illegal for him to possess ammunition because he was an ex-felon. He was arrested.

Appellant Abernathy was also arrested for illegal possession of ammunition. She asserted that she had no knowledge of the ammunition.

Defense

Abernathy had lived at the Virginia Street residence for about a year. During that time she was responsible for cleaning the residence. Abernathy testified she had been absent from the home for 90 days, she had been back for only two days before the arrest, and she had not cleaned the house since her return. Abernathy had never seen the containers of ammunition found in the house.

Discussion

Appellant challenges the sufficiency of the evidence to sustain a finding by the trial court that she violated the terms of her probation. After reviewing the lower court's finding through an abuse of discretion lens, we disagree with appellant and affirm the revocation of her probation.

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