Filed 3/30/06 P. v. Gabbard 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 PEOPLE, Plaintiff and Respondent, v. TOMMY GENE GABBARD, Defendant and Appellant. |
F047041
(Super. Ct. No. 04CM2074)
OPINION |
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge.
John R. Hargreaves, 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, Julie A. Hokans and John A. Thawley, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Tommy Gene Gabbard of possessing a firearm, having been convicted within the past ten years of assault by means of force likely to produce great bodily injury (Pen. Code, § 12021, subd. (c)(1); count 1)[1] and carrying a loaded firearm on his person and in a vehicle in a prohibited area having knowledge of the presence of the firearm (§ 12031, subd. (a)(1); count 2). Count 2 was charged as a felony based on an allegation, which the jury found to be true, that Gabbard had previously been convicted of a crime against a person (§ 12031, subd. (a)(2)(E)). The jury also found true allegations in both counts that, at the time of the current offenses, Gabbard had been released on bail in another case (§ 12022.1). On count 1, the court sentenced Gabbard to the upper term of three years and stayed the section 12022.1 enhancement pending resolution of another case against him. His sentence on count 2 was stayed under section 654.
Gabbard's contentions on appeal concern the issue of possession. First, he challenges the sufficiency of the evidence to prove he actually or constructively possessed the firearm in question. Second, he contends the trial court erroneously responded to the jury's question seeking clarification of the concept of constructive possession. We reject Gabbard's contentions and affirm the judgment.
FACTS
On June 9, 2004, Joseph Basile, an agent with the California Department of Corrections (CDC) assigned to the Fugitive Apprehension Team, parked a surveillance van with tinted windows across the street from a house in Kings County. Basile was the â€
