P. v. Weber

Filed 9/18/07 P. v. Weber CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

John Weber appeals from the judgment entered following revocation of probation. He had previously pleaded nolo contendere to second degree robbery. (Pen. Code,  211.) The trial court sentenced him to prison for three years. Appellant contends that the trial court abused its discretion in finding that he had violated the conditions of his probation. We affirm.

Facts

On March 8, 2006, appellant was placed on formal probation for three years. Among the conditions of his probation were that he not possess a firearm and that he "obey all laws."

In July 2006 Detective Michael Nagle went to a residence to execute a search warrant. Five persons were inside the residence: appellant, Joyce Grisom (appellant's grandmother), Richard Roberts, Asian Grisom, and Jonathan Jasper. The residence contained three bedrooms.

While searching the residence, Nagle saw that there was a hole in the drop ceiling of the east bedroom. Inside the hole he found a loaded handgun. Next to the gun were 55 baggies of marijuana. Appellant's driver's license was on a shelf in a bookcase in the east bedroom. The bookcase contained 20 rounds of ammunition that matched the ammunition in the handgun. All of the ammunition consisted of 9-millimeter cartridges of the same brand. Photographs of appellant were on the floor in the east bedroom.

Appellant's grandmother told Nagle that appellant "stayed" in the east bedroom. She did not say that anyone else stayed there. The middle bedroom contained a driver's license belonging to the grandmother's other grandson, Jonathan Jasper.

Appellant's grandmother testified that appellant and Jasper had moved into the residence in April 2006. They both slept in the east bedroom. A friend of hers named Jacob Howard had previously occupied the east bedroom, but he had moved out two years earlier. The grandmother further testified that, when the police came to the residence at 4:55 a.m., appellant was alone inside the east bedroom. Jasper was in the middle bedroom.

Standard of Review

"Pursuant to Penal Code section 1203.2, subdivision (a) . . . , a court is authorized to revoke probation 'if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . .' " (People v. Rodriguez (1990) 51 Cal.3d 437, 440.) "[R]eason to believe" that a probationer has violated the conditions of his probation must be proved by a preponderance of the evidence. (Id., at p. 441.) "[T]rial courts [have] very broad discretion in determining whether a probationer [has] violated probation. [Citations.]" (Id., at p. 443) " '[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of . . . revoking probation.' " (Ibid., quoting from People v. Lippner (1933) 219 Cal. 395, 400.) "[R]evocation of probation decisions are reviewed under an abuse of discretion standard. [Citation.]" (People v. Michael W. (1995) 32 Cal.App.4th 1111, 1119.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)

Discussion

Appellant contends that the trial court abused its discretion in finding that he had violated his probation by possessing the firearm and marijuana. Appellant notes that the grandmother testified that both he and Jasper had occupied the east bedroom. Furthermore, Jasper and Roberts "both were present on the day of the search, and had access to the room." Appellant alleges: "[T]here is no factual basis for the court to have inferred that appellant was in possession of the gun and marijuana, in light of not having exclusive domain or control of the area where the items were seized."

Exclusive domain or control was not required. "Possession may be actual or constructive. [Citations.] The accused has constructive possession when he maintains control or a right to control the contraband." (People v. Showers (1968) 68 Cal.2d 639, 643-644.) "[I]t is settled that a defendant need not have exclusive control over the narcotic. [Citations.] It is also settled that circumstantial evidence and inferences drawn therefrom are sufficient support of any of the required elements of possession. [Citation.]" (People v. Maese (1980) 105 Cal.App.3d 710, 716-717.) " 'Possession may be imputed when the contraband is found in a location which is' . . . subject to the joint dominion and control of the accused and another [citations]." (People v. Francis (1969) 71 Cal.2d 66, 71.)

The trial court could have reasonably inferred that appellant was the sole occupant of the east bedroom and, therefore, maintained control or a right to control the firearm and marijuana. The east bedroom contained appellant's driver's license and photographs of him. Jasper's driver's license, on the other hand, was found in the middle bedroom. The grandmother testified that, when the police arrived at 4:55 a.m., appellant was alone inside the east bedroom and Jasper was inside the middle bedroom. In addition, the grandmother told Detective Nagle that appellant "stayed" in the east bedroom. She did not say that anyone else stayed there.

But even if appellant had shared the east bedroom with Jasper, the trial court could still have reasonably inferred that he possessed the firearm and marijuana. In People v. White (1969) 71 Cal.2d 80, 83, our Supreme Court held that the evidence was sufficient to support a conviction for possession of marijuana because "[t]he evidence that marijuana was found in defendant's bedroom in which he had admittedly been within a few hours before the search raised a reasonable inference that the marijuana was his even though he shared the room with another. [Citations.]" Here, according to the grandmother, appellant had been alone in the east bedroom immediately before Detective Nagle discovered the marijuana and firearm.

In any event, based on the ammunition found in the bookcase, the trial court could have reasonably inferred that appellant possessed the firearm and marijuana. The bookcase also contained appellant's driver's license, which tied him to the ammunition. The ammunition in the bookcase matched the ammunition in the firearm, and the baggies of marijuana were next to the firearm.

Accordingly, the trial court did not abuse its discretion in finding that appellant had violated the conditions of his probation by possessing the firearm and marijuana.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Allen J. Webster, Jr., Judge

Superior Court County of Los Angeles

______________________________

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.

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