Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tuolumne County. No. CRF22771 Eric L. Du Temple, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
OPINION
A jury convicted appellant William Ervin Day of possession of a firearm by a person convicted within the last 10 years of one or more enumerated misdemeanors (Pen. Code, § 12021, subd. (c)(1), count 1); transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), count 3); transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 5); and found true allegations that a principal in the commission of the count 3 and count 5 offenses was armed with a firearm in the commission of those offenses (Pen. Code, § 12022, subd. (a)). The jury acquitted appellant of possession of marijuana for purposes of sale (Health & Saf. Code, 11359; count 4). The court suspended imposition of sentence and placed appellant on five years’ probation, one of the terms of which was that he serve eight months in county jail.
Under Penal Code section 12021, subdivision (c), it is a crime for a person who has been convicted of any of the misdemeanors listed in the statute to have in his or her possession or under his or her custody or control, within 10 years of such conviction, any firearm.
Prior to trial, appellant made, and the court denied, a motion for the appointment of substitute counsel.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this court’s invitation to submit additional briefing.
FACTS
Prosecution Case
On December 12, 2006, California Highway Patrol (CHP) Officer David Foote was driving a CHP patrol vehicle when he observed a pickup traveling in the opposite direction. There were two persons in the pickup. The officer noticed the left side of the pickup was damaged, and decided to effect a stop of the pickup to determine if it had been involved in a hit-and-run collision.
Except as otherwise indicated, the “Prosecution Case” portion of our factual statement is taken from Officer Foote’s testimony.
Officer Foote made a U-turn, and observed the pickup pull into a gas station, stop at a pump and then quickly drive around to the back of the station. At that point, the officer, thinking that the pickup was trying to elude him, activated his overhead lights and drove around the back of the station from the opposite direction. There, both vehicles stopped, facing each other.
Appellant immediately jumped out of the pickup and asked Officer Foote what was wrong. Thereafter, the officer asked to see appellant’s driver’s license and asked him what he was doing in the area. Appellant handed over his license and stated he and his companion were out bird hunting.
The officer noticed a shotgun on the seat behind the driver’s seat. The chamber of the weapon was open and it was less than an arm’s length from the driver’s seat. There was ammunition throughout the pickup, and the weapon “could easily be loaded in a matter of seconds and utilized in any fashion.” Officer Foote asked appellant if there were any other weapons in the pickup, and appellant stated there were “other rifles as well.” The officer then asked if there was anything illegal in the pickup and appellant nervously told him there was marijuana in the vehicle. Appellant stated that the marijuana was in black plastic bags and that he had found it while hunting. He indicated he hoped to turn it in for a reward.
Officer Foote then searched the pickup and found, in addition to the shotgun, three rifles; a 40-gallon trash bag containing eight similar bags, inside of each of which was marijuana; and, in the console between the driver’s and passenger’s seat, a sunglasses’ case containing methamphetamine. Officer Foote arrested appellant and advised him of his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and thereafter, appellant stated that he had been addicted to methamphetamine for approximately five months and was trying his best to end his addiction. Appellant also stated that when he saw the officer he panicked, and that he was trying to hide from him behind the gas station.
Appellant told Officer Foote that his date of birth was July 14, 1976, and that he was from Merced. The prosecution introduced, as part of People’s Exhibit 1, Merced County Municipal Court records showing that a person named William Ervin Day, born July 14, 1976, had suffered two prior convictions of misdemeanor battery (Pen. Code, § 242), in 1998 and 1999 respectively.
We take judicial notice of the People’s Exhibit 1, introduced into evidence below. (Evid. Code, §§ 459, subd. (a), 452, subd. (d).)
Misdemeanor battery in violation of Penal Code section 242 is one of the offenses listed in Penal Code section 12021, subdivision (c). See footnote 1.
A police criminalist testified that the marijuana found in the pickup weighed 325.1 grams and the methamphetamine weighed 4.2 grams.
Defense Case
The United States Forest Service found a marijuana garden at global positioning system coordinates provided by defense counsel, who, in turn, had obtained those coordinates from appellant.
Appellant testified to the following. While hunting, he stumbled on a marijuana “patch.” There, he found a garbage bag filled with more bags which contained marijuana. In one of those bags he also found methamphetamine. He put the bags of marijuana in his truck. He removed the methamphetamine from the bag because he wanted to put it “in a place … where it wouldn’t get lost.” He planned to turn the drugs in for a reward.
Appellant denied telling Officer Foote he had been using methamphetamine for five or six months.
DISCUSSION
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.