P. v. Gutierrez

Filed 10/10/06 P. v. Gutierrez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed.

William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Michael C. Keller, Deputy Attorneys General, for Defendant and Respondent.

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Following revocation of probation, appellant David W. Gutierrez III was sentenced to prison for three years for carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1)).^[1] He contends: (1) The trial court’s finding that he violated probation is not supported by substantial evidence. (2) He was denied his right to due process of law because the trial court revoked probation based on a ground that the prosecutor had removed from the motion to revoke probation.

We find no error, and affirm.

PROCEDURAL HISTORY AND FACTS

The initial charges were carrying a loaded firearm (count 1), having a concealed firearm in a vehicle (count 2), driving under the influence of alcohol (count 3), and driving with a blood alcohol level of 0.08 percent or higher (count 4). In September 2004, appellant pled guilty to counts 1 and 4, pursuant to a plea bargain. Counts 2 and 3 were dismissed.

On October 12, 2004, imposition of sentence was suspended, and appellant was placed on three years of formal probation on count 1. His probation conditions included 365 days in county jail, a prohibition against possessing firearms, and requirements that he obey all laws, court orders, and rules and regulations of the probation department. A concurrent sentence of 90 days in jail was ordered on count 4. Appellant was granted to 8:30 a.m. on November 5, 2004, to begin serving his jail time.

On the morning of November 5, appellant failed to appear. The court revoked probation and issued a bench warrant. Appellant was taken into custody when he appeared in the courtroom late that afternoon. At proceedings on November 8, the court explained what had happened on November 5, recalled the bench warrant, and scheduled a probation violation hearing.

On November 17, 2004, appellant admitted that he was in violation of probation. The court found him in violation, revoked probation, and reinstated it. The sentence on count 1 was modified to the upper term of three years in prison, with execution of sentence suspended. The previously imposed jail time of 365 days was placed into effect.

On May 5, 2005, the People filed a request for revocation of probation, in lieu of filing a new prosecution. The court made a preliminary finding that appellant was in violation of probation, ordered a supplemental probation report, and scheduled a formal violation hearing.

The prosecutor’s declaration for the motion stated that appellant’s new crimes were felon in possession of a firearm and robbery (§§ 12021, subd. (a)(1), 211). Lengthy police reports were attached to the motion. They showed that on May 3, 2005, appellant was arrested for first degree robbery, carrying a firearm, and other charges. On that date, he was in the rear passenger seat of a car that contained three other men. The police stopped the car because it matched the description of a car that had just been used in a robbery. Near where appellant had been sitting, Police Officer Mack found a shotgun, three live shotgun shells, a blue bandana, sunglasses, and loose United States currency. The police were unable to locate the victim of the robbery.

According to the police reports, appellant was implicated in other crimes. On May 4, the day after his arrest, an officer went to appellant’s home and saw a car parked nearby. Further investigation showed that the car had been stolen in a carjacking and matched the description of the car used in two robberies and two attempted robberies. However, the victims of those crimes did not identify appellant’s photo from a photo lineup.

When Officer Mack was called to testify at the revocation hearing, he said he stopped the car with the four men because it matched the description and license plate number of the car that had been used a few minutes earlier in a robbery. Appellant was in the right rear passenger seat. There were three live shotgun shells on the floorboard at his feet. Behind him in the car, within arm’s reach, there was an unloaded sawed-off shotgun, covered by a cloth.^[2]

Based on Officer Mack’s testimony, the trial court made these findings: “I do find by the standard I have before me, proof by preponderance of the evidence, defendant is in violation of probation on two bases. One is failure to obey all laws. And that’s based upon a violation of Penal Code section 1203.16 subdivision (b), subdivision (1), 12021, subdivision (a), subdivision (1), along with failure to obey all rules and regulations of the court. One of the conditions of probation is not to use, own or possess any dangerous or deadly weapons including firearms, et cetera. Probation is revoked.”^[3]

The court then placed into effect the previously suspended sentence of three years in prison. Appellant received a total of 560 days of custody credits. This appeal followed.

DISCUSSION

1. Sufficiency of the Evidence

The preponderance of the evidence standard is used to assess the proof of a probation violation. (People v. Rodriguez (1990) 51 Cal.3d 437, 446.) On appeal, rules of substantial evidence apply. (See People v. Arreola (1994) 7 Cal.4th 1144, 1161.)

Appellant’s probation conditions required him to obey all laws. It is against the law for a felon to possess, have custody of, or control a firearm or ammunition. (§§ 12021, subd. (a)(1), 12316, subd. (b)(1).) Appellant is a felon, who was seated in the right passenger seat of a car, with three live shotgun shells at his feet, and a shotgun within reach. The facts show a probation violation. (See People v. Williams (1971) 5 Cal.3d 211, 215 [defendant had dominion and control over a single benzedrine tablet that was in plain sight on the floor of the car, in front of his seat].)

Appellant argues that the evidence does not show that he knew about the shotgun, as Officer Mack had to move a cover to see it. That argument does not help appellant, as the shotgun shells were in plain view at his feet, and the shells alone were sufficient to establish the violation. Moreover, the presence of visible loose shotgun shells at appellant’s feet supports an inference that he knew about the nearby shotgun.

Appellant further argues that shotgun shells do not fall under section 12316, subdivision (b)(2)’s definition of “ammunition.” That definition states: “For purposes of this subdivision, ‘ammunition’ shall include, but not be limited to, any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence.” Appellant maintains that the designated terms apply to ammunition fired from pistols or rifles, but not shotguns. The statutory list is not exclusive, as it uses the language, “shall include, but not be limited to . . . .” In any event, as a matter of common sense, a shotgun shell is included in the list, as it is a “projectile capable of being fired from a firearm with a deadly consequence.”

2. The Grounds Used by the Trial Court

Appellant takes out of context a statement made by the prosecutor during a discussion of discovery, at proceedings on August 10, 2005. The statement is: “The only portion of the criminal incident that the People are proceeding on for the probation violation are the rounds that were recovered where the defendant was seated.” The prosecutor was responding to a question from the trial court, about whether the People planned to use the robbery earlier that day as a basis for violating probation. Appellant argues that the trial court improperly based revocation on a ground that the prosecutor had “taken off the table,” because the quoted statement named the “rounds” and not the shotgun, and the trial court based revocation on both the rounds and the shotgun. However, taken in context of the entire discussion that day, the prosecutor meant that the violation would be based on what was found in the car, and not any of the robbery incidents. He never said, and had no reason to say, that the violation would be based on the shells and not on the shotgun.

Appellant’s counsel attempted a different limitation on the evidence below. He argued that, because the People’s motion to revoke probation referred specifically to the crimes of felon in possession of a firearm (§ 12021) and robbery (§ 211), revocation could not be based on the shells. The trial court told counsel not to “play games,” as the shells were mentioned in the police reports that were attached to the People’s motion.

Thus, appellant argued below that revocation could be based on the shotgun and not on the shells, and argues on appeal that it could be based on the shells and not on the shotgun. We reject both attempts to limit the evidence. As the trial court recognized, appellant had notice of what Officer Mack found in the car, through the police reports that were attached to the People’s motion to revoke probation. Officer Mack described what he found when he testified at the revocation hearing. There was no violation of appellant’s due process rights.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

BOLAND, J.

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^[1] All subsequent code references are to the Penal Code unless otherwise stated.

^[2] In addition to Officer Mack, the trial court heard testimony from appellant’s probation officer. It did not use that testimony as a basis for revoking probation.

^[3] There is no “section “1203.16 subdivision (b).” There also is no “section 120316, subdivision (b), subdivision (1),” which the judge named at another point, according to the reporter’s transcript. From the context, we are confident that the judge meant subdivision (b)(1) of section 12316, which states: “No person prohibited from owning or possessing a firearm under Section 12021 . . . shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition.”