P. v. Cooper




Filed 3/9/11 P. v. Cooper CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DEWAYNE COOPER, Defendant and Appellant.

F058211 (Super. Ct. Nos. BF120675A & RF005334A) OPINION

APPEAL from a judgment of the Superior Court of Kern County. Rodney Walker, Catharine D. Purcell, and Brian Stainfield, Judges.
Marsanne Weese, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Anthony Dewayne Cooper's probation was revoked after he was arrested for being a felon in possession of ammunition. He now claims (1) he was denied his constitutional right to counsel because he was represented at the revocation hearing by an attorney who, in prior revocation proceedings in the same underlying cases, had been relieved from representing Cooper after the court granted Cooper's Marsden^[1] motion; (2) there was insufficient evidence to support the court's finding that he possessed ammunition; and (3) a new probation condition imposed by the court regarding persons with whom he must not associate should have included a knowledge requirement. We also consider the applicability of the January 2010 amendments to Penal Code section 4019, an issue we deem raised pursuant to our standing order filed on February 11, 2010.
We agree about the knowledge requirement and order a modification of the probation condition. The judgment is affirmed with this modification.
FACTUAL AND PROCEDURAL HISTORIES
On May 14, 2009, Deputy Public Defender Hank Mosier represented Cooper at a probation revocation hearing. Cooper was on probation in case No. BF120675A, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and case No. RF005334A, possessing Vicodin while on bail (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 12022.1).^[2] He was accused of violating both probations by committing a new offense charged in case No. RF005605A. The record does not include any document showing what new offense was charged in that case, but it is clear from the transcript that the purpose of the hearing was to determine whether Cooper possessed ammunition.
Before the hearing, the prosecution informed the court that it would dismiss the new charge, forego the preliminary examination, and proceed on the allegation of ammunition possession only for purposes of showing a violation of probation. The prosecution presented its case through Kern County Deputy Probation Officer Brent Hughes and Kern County Sheriff's Deputy Michael Scott.
Officer Hughes testified that on April 29, 2009, he went to conduct a routine probation compliance search at 214 West Wilson, which the probation department's records showed was Cooper's residence. It was a two- or three-bedroom single-family house. No one was home. Hughes and other officers entered through an unlocked back door that led into a cluttered room that appeared to be a bedroom. A section of drywall stood against a table. Hughes searched the room. On a table covered with objects, he found a glass vessel he called a chalice. Inside the vessel was a live .25-caliber bullet.
Hughes also found a title certificate from the California Department of Motor Vehicles in the room, in or on a headboard with other paperwork. The certificate bore the name Anthony D. Cooper, Sr., and the address 214 Wilson. Hughes also testified about a second document, a paper purporting to be a doctor's recommendation for therapeutic cannabis made out to Anthony Dewayne Cooper. Hughes testified that this document was found in the house, but he did not say whether he found it himself or in what room it was located.
Deputy Scott only testified that he had known Cooper for a number of years and knew that he lived at 214 West Wilson.
Georganne Nelson testified on behalf of the defense. She said 214 West Wilson was her house and Cooper stayed there with her. Sometimes he was her boyfriend and sometimes her friend. The room in which the bullet was found--which Nelson called the back apartment--formerly was Cooper's room. He had been sleeping in another room for several months because the drywall had been removed from the ceiling and the room was too cold to sleep in. During those several months, Cooper had been using the back apartment for storage. She described the glass vessel with the bullet in it as a vase. It belonged to her and had been on the table in the back apartment for several years. Nelson's son lived in the room until he was 18, five years earlier. He sometimes returned to the house and had access to the back apartment. Nelson's grandson and Cooper's son also had access to the house and sometimes went in the back apartment.
Nelson had never seen Cooper with a bullet. On the day of the search, Nelson came home to find clothes removed from her dresser and went to a job site where Cooper had been working to ask him what had happened.
Several photographs of the inside of the house were admitted into evidence. One of these, defense exhibit H, showed the table with the vase. After all the witnesses had finished testifying, the prosecutor pointed out to the court that defense exhibit H also showed a CD case with the word â€