P. v. Bravo

Filed 10/11/07 P. v. Bravo CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Robert M. Martinez, Judge. Affirmed.

Murray A. Rosenberg, 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, Robert F. Katz and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Anthony Bravo was convicted, following a jury trial, of one count of possessing an assault weapon in violation of Penal Code section 12280, subdivision (b),[1]one count of possessing a firearm while having a prior conviction in violation of section 12021.1 and one count of possessing ammunition in violation of section 12316, subdivision (b)(1). The trial court found true the allegations that appellant had suffered two prior serious or violent felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and had served two prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced appellant to a total term in prison of 25 years to life.

Appellant appeals from the judgment of conviction, contending that the trial court erred in the procedure it followed in ruling on his motions to suppress evidence and to quash and traverse the warrant, and further contending that there is insufficient evidence to support his conviction for possession of ammunition. He also contends that the trial court abused its discretion in refusing to strike one of his prior convictions. We affirm the judgment of conviction.

Facts

On June 21, 2005, about 1:00 p.m., Downey Police Department Detective David Zimmerman, Detective Nurre and several other officers went to a house in the 3700 block of Paddy Lane in Baldwin Park to serve a search warrant for marijuana. There was no response to Detective Zimmerman's knock, identification and request for entry, so the officers forced the door of the house open.

Inside, officers found a man named Soto in the living room. He was taken outside. Officers heard the sound of someone running and a door slamming. Officers in the backyard saw appellant standing at an upstairs window from which the screen had been removed.

Officers ordered appellant to come out of the room, which turned out to be the master bedroom. He gave various reasons for not coming out, such as using the bathroom and getting dressed. After about 45 minutes, appellant came out. He was arrested.

Officers searched the house, including the master bedroom. They found a safe under the window in the master bedroom where appellant had been standing. They pried the safe open and found a TEC-9 machine pistol, a J&R M-68 assault rifle, and a .45 caliber handgun. The .45 had been reported as stolen to the Glendale Police Department. The other two weapons were not registered and in fact were not legal for the public to own. Several loaded and unloaded ammunition magazines, a box of .45-caliber ammunition, a box of .9 millimeter ammunition, a Taser, a file containing papers and $55,000 in currency were also found in the safe.

The master bedroom contained only men's clothing. The clothing would have fit appellant at the time of his arrest. Police found utility bills and registration documents in appellant's name in a drawer in the bathroom which connected to the master bedroom. Two other bedrooms in the house contained female clothing and personal items. During the search, a woman named Blanca returned to the house. She stated that she lived there.

At trial, appellant offered the testimony of his brother, Jonathan Ortiz, that Ortiz had been living in the house on Paddy Lane for three to four months. He paid about $300 in rent to Blanca Vasquez, appellant's girlfriend. Vasquez's two teenage daughters also lived in the house.

According to Ortiz, appellant shared the master bedroom with Vasquez. When the two quarreled, appellant went to stay with his mother. Appellant essentially divided his time between the two residences.

The weapons found in the safe belonged to Ortiz, who was holding them as a favor for a friend named Jerry. Ortiz asked Vasquez for permission to store the guns in the safe for a few days, and she agreed. He did not tell appellant that he had stored the weapons in the safe. Ortiz did not believe that appellant knew about the guns because he was not home at the time. Ortiz first told police that he was responsible for the guns in November or December, several months after appellant's arrest.

Discussion

1. Procedure on motions

Appellant filed a motion to suppress evidence pursuant to section 1538.5 and in the alternative to quash and traverse the search warrant and a motion to discover the identity of a confidential informant on the same day, and set both motions for hearing on the same day. The basis of the motion to discover the confidential informant's identity was that he could be a material witness on the issue of guilt or innocence. The court denied the motions. Appellant contends that the trial court erred in deciding the motion to quash and traverse without holding an in camera hearing to test the sufficiency of the probable cause and the reliability of the informant.

We agree with appellant that the trial court should have held the in camera hearing on the sufficiency of probable cause and the reliability of the informant before denying the motion to suppress and the alternative motion to quash and traverse. The hearing is a necessary prerequisite to deciding the motions.

As our Supreme Court has explained, where, due to the sealing of any portion or all of the search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing required to move to traverse the warrant or to make an informed determination whether sufficient probable cause existed for the search (as part of a motion to quash the warrant), "certain procedures should be followed." (People v. Hobbs (1994) 7 Cal.4th 948, 971-972.) The Court explained that on a properly noticed motion by the defense seeking to quash or traverse the search warrant, the lower court should conduct an in camera hearing. In this hearing, "[i]t must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant's identity." (Id. at p. 972.)

The court must examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of any materials or witnesses it requires. "The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant's reliability." (People v. Hobbs, supra, 7 Cal.4th at p. 973.) If the court finds that the affidavit was properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing. If the trial court determines that the materials and testimony before it do not support defendant's charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. (Ibid.)

Here, the trial court denied the motion to quash and to traverse before holding any reported in camera hearing. It appears that the court denied the motion simply on the basis of a brief reading of the unredacted affidavit. This falls far short of the inquiry described in Hobbs, supra.

The court did go on to conduct an in camera hearing, however. We recognize that the trial court's comments about the hearing suggest that the court simply put Detective Zimmerman under oath to confirm the contents of the unredacted affidavit in support of the search warrant application, and also suggest that the only issue decided by the court in the in camera hearing was whether the informant was a material witness. These comments are misleading.

We have read the sealed transcript of the in camera hearing and find no prejudice to appellant from the trial court's order. The court did test the reliability of the informant and the sufficiency of probable cause in that hearing, and also made inquiries to determine whether the informant might be a material witness. No information was revealed during that hearing which should have caused the trial court to reconsider its earlier denial of the motions to quash and traverse. Thus, there was no prejudice to appellant, under any standard of review, from the court's irregular order on holding an in camera hearing.

To the extent that appellant contends that the trial court should have conducted the in camera hearing on whether the informant was a material witness before deciding the motions to quash and traverse, we do not agree. Judicial economy suggests that a trial court should conduct the two in camera hearings together, and this is the usual procedure. However, we see no absolute requirement for such an order. If the informant is found to be unreliable and the motion quashed, there would be no need for a determination of witness materiality. When our Supreme Court described a combined hearing, the Court contemplated that the issues of reliability and probable cause would be decided before the material witness issue. (People v. Hobbs, supra, 7 Cal.4th 948.)

2. Sufficiency of the evidence

Appellant contends that there is insufficient evidence to support his conviction for possessing ammunition in violation of section 12316 because there was insufficient evidence that the ammunition was live. He contends that such a conviction violates his federal and state constitutional rights to due process of law.

In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)

Section 12316, subdivision (b)(2) provides that "'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 points out the ammunition in question was not test-fired and contends that there was no opinion testimony that the ammunition was "live," that is capable of being fired. He contends that his case is identical to the case before this court in In re Arcenio V. (2006) 141 Cal.App.4th 613. He concludes that the holding of Arcenio requires reversal in this case.

Appellant is factually incorrect. At page 333 of the Reporter's Transcript, the prosecutor asked Detective Nurre if he knew what People's Exhibit 13 was. The detective replied: "Yes. That's the loaded .45-caliber handgun that we located in the safe." The prosecutor then asked: "And when you say loaded, what do you mean?" Detective Nurre replied: "It had a magazine, loaded magazine, with the live ammunition in it and a round in the chamber of the gun." (Emphasis added.)[2] At page 336 of the Reporter's Transcript, the prosecutor asked Detective Nurre to cut a small opening in People's Exhibit 17, an envelope holding an assortment of 9 millimeter, .45-caliber and other rounds, and to look inside. Detective Nurre replied: "Yes. It has live it looks like .45-caliber live ammunition with a couple of ammunition cases." (Emphasis added.) Appellant acknowledges that an experienced police officer's observation of the outside of rounds is sufficient evidence that the round is live. We indicated as much in Arcenio. (In re Arcenio V., supra, 141 Cal.App.4th at pp. 616-617.)

Given Detective Nurre's testimony, we find that a rational jury could have found that the prosecution proved beyond a reasonable doubt that the ammunition was live. Thus, the due process clause of the U.S. Constitution is satisfied, as is the due process clause of article I, section 15 of the California Constitution. (People v. Osband (1996) 13 Cal.4th 622, 690.)

3. Motion to strike

Appellant contends that his prior convictions were remote in time and committed when he was young, his recent convictions were non-violent and have been decreasing in severity, his current crime was non-violent, and his sentence as a second strike offender would be lengthy. He points out that the People offered him a six-year sentence prior to trial. He concludes that the trial court abused its discretion in refusing to strike one of his two prior convictions. We see no abuse of discretion.

Rulings on motions to strike prior convictions are reviewed under the deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling. (People v. Carmony (2004) 33 Cal.4th 367, 373.)

Here, the trial court balanced the relevant facts. The court acknowledged that appellant's prior convictions were remote, but pointed out that appellant had been incarcerated for a significant period of time since committing those offenses. The court also noted that appellant had committed numerous violations of parole, and was on parole when he committed the present offenses. The court did not agree with appellant's characterization of himself as non-violent, finding that the most likely reason for possessing a machine pistol was to commit crimes or protect that contraband found in his residence. The court found that the interests of justice would not be served by striking one of appellant's prior convictions.

We see nothing arbitrary or capricious in the trial court's decision. Appellant's criminal career began at the age of 13, with separate adjudications for petty theft and burglary. He committed another burglary at 14 and possessed marijuana for sale at 16. In 1990, at the age of 17, he committed an armed robbery, his first strike. In 1993, he committed voluntary manslaughter, his second strike. In 1998, he was convicted of burglary and receiving stolen property. In 2000, he was convicted of robbery. Appellant had three weapons in his safe, including a machine pistol and an assault rifle. These two weapons could not lawfully be possessed by any member of the public because their only purpose is to injure people.

Appellant has demonstrated that he is a danger to the people of the State of California. A sentence of 25 years to life was warranted in his case.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Detective Nurre also described the smaller TEC-9 machine pistol as being "loaded" when it was found. It is a fair inference that he meant the term "loaded" to have the same meaning as when he used it to describe the .45-caliber gun, that is, containing live ammunition.