P. v. Rice

Filed 2/23/06 P. v. Rice CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed.

Doris M. Frizzell, 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, Senior Assistant Attorney General, Barry Carlton, Supervising

Deputy Attorney General, and Patricia Mallen, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

Defendant is serving two concurrent Three Strikes prison sentences of 25 years to life for possession of a firearm and ammunition. We affirm.

In September 2004, a jury convicted defendant of being a felon in possession of a firearm and ammunition (§§ 12021, subd. (a)(1), and 12316, subd. (b)(1).) The court found true the allegations of six prior convictions for serious or violent felonies within the meaning of the Three Strikes Law. The prior convictions all occurred on January 3, 1984. The court sentenced defendant to two concurrent sentences of 25 years to life.

On appeal, defendant contends insufficient evidence supports his conviction for possession of ammunition and the trial court committed instructional error concerning the prosecutor's burden of proof on circumstantial evidence. He also challenges his sentence as an abuse of discretion and constituting cruel and unusual punishment.

2. Facts

In January 2004, the Riverside police were conducting the surveillance of a house located on Ivanhoe, trying to locate a parolee at large. The police saw defendant leave the house, accompanied by a woman, and drive away. The police made a traffic stop. Defendant said he did not know about the parolee but defendant admitted he was a convicted felon. Defendant told police there was a .22-caliber rifle in a closet inside his residence and .22-caliber and .357-caliber ammunition in the garage. He gave police permission to search the house, which he said had been owned by his father who had recently died. The police found the rifle and ammunition in the locations identified by defendant. The .357-ammunition was in an unopened package. The .22-ammunition was in an old weathered box. The rifle was manufactured before 1968.

3. Insufficient Evidence

Section 12316, subdivision (b)(2), prohibits a convicted felon from owning, possessing, or having under his custody or control any ammunition, defined as including â€