Filed 4/17/18 P. v. Bartolucci CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN JOSEPH BARTOLUCCI,

Defendant and Appellant.


E067703

(Super.Ct.No. RIF1600198)

OPINION


APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
William P. Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Christopher P. Beesley, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kevin Joseph Bartolucci pled guilty to possession of ammunition by a person prohibited from possessing a firearm (Pen. Code , § 30305, subd. (a), count 1), unlawful purchase and receipt of a firearm while subject to a restraining order (§ 29825, count 2), and felony vandalism (§ 594, subd. (b), count 3). Defendant admitted that he committed these offenses while he was out on bail in another case. (§ 12022.1.) The court denied probation and sentenced him to a total term of five years four months in state prison. The court also ordered defendant’s guns and ammunition that were seized from his property to be destroyed.
On appeal, defendant argues that the trial court erred in failing to afford him the opportunity to transfer his firearms and ammunition to a third party before ordering their destruction. He further contends that he was in lawful possession of the BB pistol, pellet rifle, blank-firing pistols, and blank ammunition that the police seized; thus, the court was without authority to order their destruction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s neighbor (the neighbor) obtained a restraining order against defendant on October 2, 2013, which she renewed in October 2015. The renewed restraining order was set to expire on April 13, 2016. The neighbor had surveillance cameras around the perimeter of her house. On January 1, 2016, she noticed that the lens on one of the cameras was broken. There was a hole in the lens and the rest of it was shattered. The neighbor reviewed the video from the camera and called the police. The video showed a tall figure come out of defendant’s house and raise his arms; there was a reflection of light pointed toward the camera, and the lens subsequently shattered; then the figure went back into defendant’s house. The neighbor later noticed that some decorative lights on her patio cover were shattered and another camera had been shot at. The lens on that camera was also broken. The damage done to the cameras was consistent with being hit with pellets.
A police officer reviewed the video and agreed that the person coming out of the residence next door was shooting some type of gun. The police conducted a search of defendant’s home and seized five bolt-action rifles, handgun and rifle ammunition, a magazine, several blank-firing pistols (e.g. starter pistols), a pellet rifle with a scope on it, and a BB pistol.
One of the officers who searched defendant’s house was familiar with defendant because of the restraining order that had been issued against him. In October 2013, the officer investigated defendant and discovered that he possessed weapons, in violation of the restraining order.
Defendant pled guilty to possession of ammunition by a person prohibited from possessing a firearm (§ 30305, subd. (a)), unlawful purchase and receipt of a firearm while subject to a restraining order (§ 29825), and felony vandalism (§ 594, subd. (b)). The trial court sentenced him to five years four months in state prison. After sentencing him in the instant case, the court proceeded to sentence him in a companion case. At the conclusion of the proceedings, the prosecutor stated the following: “One last thing. We would ask that all guns and ammunition as to both cases be ordered destroyed.” The court replied, “Yes.” Defendant’s neighbor, who was present at the hearing, then asked the court if she could say something. The court replied, “Yes, you can. Come forward. We have a few minutes left.” The neighbor informed the court that defendant had a crossbow and other such things in his house that he should not be able to have. The court discussed the matter with her briefly and then concluded the hearing.
ANALYSIS
Defendant Has Forfeited His Claims
Defendant argues that the trial court was not authorized to order the destruction of his firearms and ammunition, but was required to afford him the opportunity to transfer them to a third party. He thus requests this court to instruct the trial court to provide him the opportunity and the appropriate forms to facilitate the transfer of title of his firearms and sale or transfer of his ammunition to a third party. He also contends that he was in lawful possession of the BB pistol, pellet rifle, blank-firing pistols, and blank ammunition that the police seized from his house; thus, the court was without authority to order their destruction, or to order him to surrender these items.
The People contend that defendant forfeited his claims on appeal since he failed to object below. We agree. It is well established that, generally, an appellate court “will not consider claims of error that could have been—but were not—raised in the trial court.” (People v. Vera (1997) 15 Cal.4th 269, 275.) “It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.” (Id. at p. 276.)
Defendant argues that his challenge to the firearms destruction order has not been forfeited since he had no meaningful opportunity to object. (People v. Bautista (1998) 63 Cal.App.4th 865, 868-870.) He points out that the prosecutor “sprung her request” at the end of the sentencing hearing and that the order was requested without notice to the defense, since it was not addressed at any other time. He claims that after the court responded, “yes,” to the prosecutor’s request for the order, the proceedings were “immediately concluded.” The record belies his claim. The record here reveals that defendant was in court with counsel, heard the prosecutor’s request, heard the court agree to the destruction order, and voiced no objections. Nothing in the record suggests that defendant or his counsel was precluded from objecting to the order or was in any way denied a meaningful opportunity to object. Although the prosecutor’s request came at the end of the hearing, the hearing was clearly not over yet. After the court made its order, defendant’s neighbor easily interjected and asked the court if she could say something. The court readily allowed her to speak, noting that they “ha[d] a few minutes left.” Thus, defendant had even more time to contemplate lodging an objection. The record demonstrates that he was provided with a meaningful opportunity to object. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) However, he failed to do so. After the court’s discussion with the neighbor, defense counsel simply stated, “Thank you, Your Honor.” Then the court announced the conclusion of the proceedings.
As a practical matter, we note that whether the court ordered the firearms and ammunition to be destroyed or allowed defendant to transfer them to a third party is a distinction without a difference. Defendant would be deprived of his firearms and ammunition in any event.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.


We concur:


MILLER
J.

SLOUGH
J.