P. v. Cisneros

Filed 6/22/06 P. v. Cisneros CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Ivan Sandoval Cisneros challenges his conviction for possession of a firearm within 1,000 feet of an elementary school. Defendant's only argument is that he did not know and could not reasonably have known there was an elementary school 500 to 800 feet from the spot on which he was arrested in possession of a handgun. Having reviewed the record, we conclude there was more than substantial evidence supporting the element of knowledge, and we affirm defendant's conviction.

Statement of Facts and Procedural History[1]

At approximately 11:40 p.m. on September 30, 2004, Santa Ana Police Officers Campuzano, Sanchez, and Kirkpatrick were patrolling an alley near 810 South Townsend Street. The officers observed defendant standing alone near the rear driver's side bumper of a Jeep parked in the alley. After making eye contact with Officer Campuzano, defendant ran away. He was apprehended a few blocks away. The officers found a handgun and a usable amount of cocaine base in or on the Jeep.

Monte Vista Elementary School is located 500 to 800 feet from the alley in which defendant and the Jeep were observed by the police officers. There were lights around the school grounds. The school was visible from the alley. A drainage ditch, bordered on both sides by short cement walls and six‑foot‑high chain link fences, and a park were between the alley and the school. Defendant lived less than two miles from the alley and the elementary school. Defendant admitted being in the immediate vicinity of the school several times before, and testified he was the victim of an attempted robbery approximately two blocks from the school less than one week before his arrest.

Defendant was charged with and convicted of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and possession of a firearm within a school zone (Pen. Code, § 626.9, subd. (b)). The jury also found true the allegation that defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)). The trial court sentenced defendant to state prison for an aggregate term of three years, consisting of the lower term of three years for the cocaine base possession charge and the middle term of three years on the firearm possession charge, to be served concurrently. For sentencing only, the court struck the firearm enhancement in the interests of justice.

Discussion

Defendant's only argument on appeal is that there was insufficient evidence of his knowledge that he was in a school zone to support his conviction under Penal Code section 626.9, subdivision (b). In considering this argument, we review the entire record in the light most favorable to the prosecution, in order to determine whether it discloses substantial evidence from which a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Cole (2004) 33 Cal.4th 1158, 1212.) We do not reweigh the evidence to decide whether we would find defendant guilty. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Penal Code section 626.9, subdivision (b) prohibits possession of a firearm â€