P. v. Roe

Filed 2/20/07  P. v. Roe CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

            Randy Lee Roe was convicted, following a jury trial, of possession of a firearm by a felon and possession of a short-barreled shotgun.  On appeal, he contends his convictions must be reversed because the jury was neither instructed on unanimity by the trial court nor informed by the prosecution that it elected to seek conviction based only on one discrete act.  We shall affirm.

PROCEDURAL BACKGROUND

            Appellant was charged by information with one count of being a felon in possession of a firearm (Pen. Code, §  12021, subd.  (a)(1)),[1] and one count of possessing a short-barreled shotgun (§  12020, subd.  (a)).

            At the conclusion of a jury trial, the jury found appellant guilty as charged.

            On May  1, 2006, the court imposed the middle term of two years on count one and stayed sentence on count two, pursuant to section  654.[2]  On May  5, 2006, appellant filed a notice of appeal.

FACTUAL BACKGROUND

Prosecution Case

            On November  30, 2005, San Mateo County Probation Officer Ken Hiraki testified that he and other probation officers conducted a routine probation search of appellant's home in Daly City.  Appellant was in his bedroom when the officers arrived.  The officers went to the basement/garage area after appellant said his truck was down there.  While in the garage area, another officer alerted Hiraki to the contents of a wooden crate, in which Hiraki observed an altered (i.e., sawed off or short-barreled) shotgun inside plastic tubing.  He also found a full-face ski mask and a pair of torn sweat pants in the wooden crate.

            Officers also found stacked plastic storage boxes containing, inter alia, documents with appellant's name on them and photographs of appellant.  The storage boxes were located next to the wooden crate and defendant's truck in one section of the garage.

            Richard Buttafoco testified that he had lived in the Daly City house for about 12  years.  He rented a room to appellant, beginning in late September  2005.  He knew appellant through their work as meat cutters; they had been friends for two years.  Appellant stored his belongings together in the back of the garage area.[3]

            When appellant was moving in, he showed Buttafoco a shotgun.  Buttafoco asked him to take it out of the house.  Buttafoco never saw the gun again and believed appellant got rid of it.

            On November  30, 2005, when probation officers came to the house and searched, Buttafoco and his two sons, ages 18 and 10, were living there, along with appellant.  An officer showed Buttafoco the gun in the crate and asked if he recognized it.  He did not know whether it was the one appellant had shown him earlier because the first one seemed larger, but the officers only showed him the tail end of the gun and he did not know much about guns.  When an officer later called, Buttafoco said he did not know anything about that gun, and said he had seen a gun earlier.  The officer asked Buttafoco if his fingerprints would be found on the gun, and he said â€