Filed 5/15/18 P. v. Poutoa CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

FRED POUTOA,

Defendant and Appellant.
D072687



(Super. Ct. No. SCE368291)


APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed.
Bruce Leon Kotler, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Fred Poutoa pled guilty to failing to appear while on bail. (Pen. Code, § 1320.5.) Thereafter a jury convicted him of the remaining counts, possession by a felon of a firearm (§ 29800, subd. (a)(1)) and ammunition (§ 30305, subd. (a)(1)). Poutoa admitted he had served one prior prison term (§§ 667.5, subd. (b), 668) and had two prior strike convictions within the meaning of the three strikes law (§ 667, subds. (b)–(i), 1170.12, 668). The court sentenced Poutoa to a total term of seven years and four months.
Following Poutoa's appeal, appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). We granted Poutoa an opportunity to file a supplemental brief on his own behalf, but he did not do so. After independently reviewing the entire record (People v. Kelly (2006) 40 Cal.4th 106, 119), we find no arguable appellate issues and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2017 City of La Mesa Police Officer William Wilson was on motorcycle traffic patrol and conducted a traffic stop on a sedan driven by Poutoa. Poutoa told Wilson he did not have his license or identification and falsely identified himself as "John Poutoa." When that name and date of birth did not match DMV records, Wilson suspected Poutoa was lying and called for backup. Officer Michael Chiaverini arrived, and Wilson handcuffed and detained Poutoa outside the vehicle to search him for identification. The officers also questioned the female passenger, the owner of the car, who had an outstanding warrant for her arrest.
Officer Chiaverini began a facial recognition process to determine whether Poutoa was in the police contact data bank. Before that process was complete, Poutoa gave his real name and stated he was on parole with an outstanding warrant for a parole violation. Wilson verified the warrant through dispatch and advised Poutoa he was under arrest.
While Wilson waited for a patrol vehicle to transport appellant, he searched the unoccupied sedan. The car was an older model, with an armrest that folded down between the two front seats. Wilson saw the butt of a .45-caliber firearm sticking out between the two seats. He had not seen the gun until the search. In his opinion, Poutoa would have been able to grab the firearm from the driver's seat. Its handle had been broken or removed, exposing a full magazine inside containing eight .45-caliber bullets.
Officer Timothy Tarbuck arrived to transport Poutoa to the La Mesa Police Department and searched Poutoa before placing him in his patrol car. Tarbuck discovered a black magazine containing .45-caliber ammunition in the left front pocket of Poutoa's pants. Wilson believed that the magazine would fit into the gun found in the sedan. The firearm and the two magazines were impounded as evidence.
Following his arrest, Poutoa was released on bail. When he failed to appear for a scheduled hearing, a warrant was issued for his arrest. Officers found Poutoa in a garage working on a stolen vehicle and arrested him.
The San Diego County District Attorney charged Poutoa by a three-count information with unlawful possession of a firearm (§ 29800, subd. (a)(1), count 1), unlawful possession of ammunition (§ 30305, subd. (a)(1), count 2), and failure to appear while on bail (§ 1320.5, count 3). The information alleged that Poutoa suffered one prison prior (§§ 667.5, subd. (b), 668) and two strike priors (§§ 667, subds. (b)–(i), 1170.12, 668).
Poutoa pled guilty to count 3 (failure to appear) and admitted that he had suffered the prison prior and strike priors as to that charge. The case proceeded to trial on counts 1 and 2, where the People presented testimony of officers Wilson and Tarbuck and introduced the impounded firearm and ammunition. Poutoa did not present any affirmative evidence, but argued in closing that the prosecution had not proven Poutoa's knowledge of the firearm or ammunition beyond a reasonable doubt. The parties stipulated that Poutoa was validly convicted of a felony prior to Officer Wilson's traffic stop.
The court instructed the jury with CALCRIM Nos. 2511 and 2591 as to the elements of counts 1 and 2. Pursuant to the parties' agreement, the court modified the limited-purpose instruction (CALCRIM No. 303) to state that Poutoa's status as a parolee could not be considered as evidence of his character or propensity to commit a crime. The jury returned a verdict convicting Poutoa on counts 1 and 2. Waiving his trial right, Poutoa admitted the prison and strike priors as applied to those counts.
Poutoa was sentenced to a total term of 7 years, 4 months in state prison calculated as follows: For count 1, the court imposed the upper term of 3 years, doubled by the strike prior, for a total of 6 years. It did the same for count 2 but ran the sentence concurrently with count 1. For count 3, the court imposed one-third the middle term of 2 years (8 months), doubled by the strike prior, for a total of 1 year and 4 months. It dismissed the prison prior pursuant to section 1385. Poutoa received 138 days of custody credit and 138 days of conduct credit (§ 4019).
The court imposed a restitution fine of $6,100 pursuant to section 1202.4, subdivision (b) and a parole revocation fine in the same amount pursuant to section 1202.45, suspended unless parole is revoked. It also imposed a $120 court operations assessment (§ 1465.8, subd. (a)(1)), $90 conviction assessment (Gov. Code, § 70373, subd. (a)(1)), $154 criminal justice administrative fee (Gov. Code, § 29550, subd. (c)), and required DNA testing (§ 296, subd. (a)(1)).
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but asked this court to review the entire record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as issues that "might arguably support the appeal":
1. Whether there was sufficient evidence to support the jury's verdicts on the firearm and ammunition counts, counts 1 and 2.

2. Whether the court abused its discretion in selecting the upper term at sentencing.

A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issue.
As to the issues raised by counsel, sufficient evidence supports the jury's verdicts on counts 1 and 2. A violation of section 29800, subdivision (a)(1) requires proof that the defendant possessed a firearm, knew he possessed a firearm, and had previously been convicted of a felony. (CALCRIM No. 2511.) A violation of section 30305, subdivision (a)(1) requires proof that the defendant possessed ammunition, knew he possessed ammunition, and had previously been convicted of a felony. (CALCRIM No. 2591.) The parties stipulated to the final element as to both offenses, Poutoa's prior felony conviction. As to possession, Poutoa did not need to hold or touch the firearm or ammunition to possess either; it was sufficient if he had control or the right to control those items, whether personally or through another person. (CALCRIM Nos. 2511, 2591.) Although there was a passenger in the car who owned the vehicle, "[t]wo or more people may possess something at the same time." (Ibid.)
The firearm was found under the armrest next to the driver's seat, within Poutoa's reach. It was loaded, and officers recovered a magazine for that type of weapon in the left pocket of Poutoa's pants. The jury could reasonably find that Poutoa knew about the ammunition in his pocket; he was wearing sweat pants and would have felt the heft of the nearly full four-and-a-half inch magazine. His knowledge of the ammunition would in turn support a finding that he also knew about the gun within arm's reach that used that type of ammunition. Moreover, when pulled over, Poutoa lied about his name and date of birth to Wilson, supporting an inference of his consciousness of guilt. (CALCRIM No. 362.)
Turning to the sentencing issue, the court did not abuse its discretion in selecting the upper term for counts 1 and 2. The firearm and ammunition offenses carried a sentencing range of 16 months, 2, or 3 years under the determinate sentencing law. (§ 1170, subd. (h).) The choice of the appropriate term rests within the sound discretion of the sentencing court. (§ 1170, subd. (b).) In selecting the appropriate term, the court can consider circumstances in aggravation or mitigation, as well as any other factor reasonably related to the sentencing decision. (Ibid.; Cal. Rules of Court, rule 4.420(b).) A single valid aggravating factor justifies imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 815.)
Here, the court relied on several aggravating factors to select the upper term for counts 1 and 2. Poutoa had a lengthy criminal history, had served prior prison terms, and was on parole at the time he committed the current offense. (Cal. Rules of Court, rule 4.421(b)(2)–(b)(4).) His parole agent reported he " 'consistently violated his parole.' " (Cal. Rules of Court, rule 4.421(b)(5).) In mitigation, the court placed great weight on the probation officer's statement that Poutoa had a lengthy stretch without criminal activity. (Cal. Rules of Court, rule 4.408(a).) Nevertheless, it found the upper term appropriate. We discern no abuse of discretion on this record. The court considered valid criteria, and its decision was not arbitrary, capricious, or outside the bounds of reason. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
On independent review, we also considered the Batson/Wheeler motion brought by defense counsel during jury selection. (Batson v. Kentucky (1986) 476 U. S. 79, 89; People v. Wheeler (1978) 22 Cal.3d 258, 276–277.) Viewed in light of the Supreme Court's recent ruling in People v. Gutierrez (2017) 2 Cal.5th 1150, we found no reasonably arguable appellate issue in the denial of that motion.
Having reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, we find no reasonably arguable appellate issue. Poutoa has been adequately represented by counsel in this appeal.
DISPOSITION
The judgment is affirmed.


DATO, J.

WE CONCUR:



HALLER, Acting P. J.



IRION, J.