Filed 12/21/17 P. v. Cabello CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

RODOLFO CABELLO,

Defendant and Appellant.

F074317

(Super. Ct. No. LF011016A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge.
Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-



Appointed counsel for defendant Rodolfo Cabello asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. On review, we find no arguable issues.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On May 1, 2016, Deputy Chris Cooper conducted a probation search of the residence of a probationer in Taft. Cooper contacted the probationer at the door of a shed and he noticed defendant sitting on a bed inside. At the foot of the bed, about one and one-half feet from defendant and within his arm’s reach, lay a rifle. Cooper described the rifle as “half of a Marlin .22 rifle.”
After Cooper seized the rifle, he read defendant his Miranda rights and questioned him. Another officer served as a Spanish interpreter. Defendant explained that he found the rifle while doing clean-up work at another residence and had permission to keep whatever he found. He said he brought the rifle back to this residence and it belonged to him. He said he knew that convicted felons were not supposed to possess firearms. Defendant had a prior felony conviction.
During motions in limine, the trial court considered the People’s motion to exclude all evidence or reference to the rifle’s operability due to its irrelevance. The court stated:
“I’ll state for the record my initial impression was that for the commission of a felony by use of a firearm, I was aware that it need not be operable with the idea that it could be displayed and have the same effect as an operable firearm in committing a felony with the use of a firearm. I was uncertain as to the status of that when the charge is felon in possession of a firearm, but the case authority does seem to say that it need not be operable. Perhaps under the same—it’s not clear, but perhaps under the same theory, that a felon should not have the opportunity to even display or possess something that is a firearm, albeit inoperable. I think there’s case where the possession didn’t even include the receiver or the action. It was simply a rifle barrel, and the Court held that that was sufficient possession of a firearm.”
The court considered a report submitted by defendant. A forensic analyst hired by the defense examined the rifle and described it in his report as a “Marlin model Glenfield 60 semi-automatic rifle, [.]22 Long Rifle caliber … with the buttstock broken off and not provided for examination.” The analyst stated: “The submitted firearm was examined and found to be unsafe to fire as the barrel contains an obstruction approximately 3.5 inches from the muzzle.” He noted the following “[a]dditional deficiencies/defects”:
“The magazine follower is absent, which prevents semi-automatic functioning of the exhibit. [¶] The bolt does not close on a manually chambered cartridge as the action is in need of cleaning and lubrication; this condition is also expected to prevent proper cycling of the action in semi-automatic mode. [¶] The cross bolt safety is defective as it moves freely from side to side; the internal detent feature does not function as designed. [¶] The rear trigger guard screw is loose. [¶] The forward trigger guard screw is absent. [¶] The front aiming sight is absent. [¶] The rear aiming sight is absent.”
The analyst concluded: “The submitted Marlin Glenfield 60 rifle, serial #22500689, is not a functional firearm in the condition received.”
The court granted the People’s motion to exclude the evidence, concluding that the rifle’s noted defects were intrinsic, making the rifle inoperable. The court found this evidence irrelevant and excluded any argument or reference to the rifle’s operability.
The trial court later instructed the jury with CALCRIM No. 2511 on the crime of possession of a firearm by a felon, explaining that “[a] firearm is any device designed to be used as a weapon from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion. The frame or receiver of such a firearm is also a firearm for the purpose of this instruction. A firearm does not need to be in working order if it was designed to shoot and appears to be capable of shooting.”
On July 27, 2016, the jury found defendant guilty of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). The trial court found true a prior prison term allegation (Pen. Code, § 667.5, subd. (b)).
On September 2, 2016, the trial court sentenced defendant to 16 months in prison, plus a consecutive one-year term for the prior prison term enhancement. The court imposed various fines and fees.
The same day, defendant filed a notice of appeal.
After reviewing the entire record, we find no arguable issues or ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.