Opinion
2d Crim. No. B229360
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE SALVADOR HERNANDEZ, Defendant and Appellant.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Shira B. Seigle, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 2009047642)
(Ventura County)
Jose Salvador Hernandez appeals a judgment following conviction of two counts of possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) We modify the judgment to stay execution of sentence on count 2 pursuant to section 654, but otherwise affirm.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Thomas Lugo lived in Santa Paula with his wife and adult son Raymond. Thomas had a collection of firearms - some distinctive and valuable - that he kept in a locked safe. In December 2009, Raymond took a Colt .22 caliber handgun and a Ruger .45 caliber handgun from his father's safe, along with some ammunition. Raymond testified that he took the handguns "to trade for money" to buy drugs.
Raymond sold the handguns to Hernandez, a former neighbor, for $350. Raymond stated that the transaction was "kind of like a pawn," because he hoped to obtain funds eventually to repurchase the handguns.
On December 31, 2009, Ventura County Sheriff's deputies Steve Hanie and William Meixner executed a probation search at the Blaine Avenue residence of Ivan Guzman in Fillmore. Guzman had been convicted of driving under the influence of alcohol and had received a grant of probation with a search condition for alcoholic beverages. He lived with his pregnant girlfriend and Hernandez in a small three-bedroom house.
When deputies arrived at the residence, Hernandez was leaving through the front door. Hernandez rented a bedroom in the residence and kept his bedroom door locked. Guzman and his girlfriend occupied a second bedroom. The third bedroom was a storage room that contained boxes of clothing, a computer, baby items, and a crib. Deputies found a Colt handgun and a Ruger handgun, among others, inside a box of clothing in the third bedroom. Guzman informed the deputies that the clothing box and its contents belonged to him. The deputies later returned with a search warrant and searched Hernandez's bedroom. They found marijuana but no firearms.
In January 2010, Thomas Lugo saw photographs in the local newspaper of the firearms confiscated from the Blaine Avenue residence. Thomas recognized two of the firearms as his Colt and Ruger handguns. At the same time, investigating officers had learned that the Colt and Ruger handguns were registered to Thomas. Thomas then confronted his son who admitted taking and selling the handguns. Thomas and Raymond later spoke with Ventura sheriff's deputies regarding the sale of the handguns to Hernandez.
Prior to trial, Hernandez sought to suppress evidence of the handguns pursuant to section 1538.5. Following an evidentiary hearing, the trial court denied the suppression motion, relying on People v. Hernandez (1988) 199 Cal.App.3d 1182, 1190 [overnight guest had no legitimate expectation of privacy in a bedroom in which he did not stay]. In its ruling, the court determined that Hernandez did not have a legitimate expectation of privacy in the third bedroom of the residence that was used for storage.
The jury convicted Hernandez of two counts of possession of a firearm by a felon. (§ 12021, subd. (a)(1).) The trial court sentenced him to a midterm sentence of two years imprisonment for count 1, and to two years for count 2, to be served concurrently. In imposing sentence, the trial judge stated that "the two counts are [section] 654." The court also imposed a $500 restitution fine and a suspended $500 parole revocation restitution fine, and awarded Hernandez nine days of presentence custody credit. (§§ 1202.4, subd. (b), 1202.45.)
Hernandez appeals and contends that: 1) the trial court erred by denying the suppression motion; 2) the trial court erred by refusing to instruct regarding corroboration of accomplice testimony; 3) the trial court abused its discretion by denying his request for a grant of probation; and 4) the trial court erred by imposing a concurrent prison term for count 2 despite finding that section 654 applied.
DISCUSSION
I.
Hernandez contends that the trial court erred by determining that he had no reasonable expectation of privacy in the third bedroom where sheriff's deputies found the Lugo handguns. He relies on People v. Stewart (2003) 113 Cal.App.4th 242, 254-255, concluding that a defendant had a reasonable expectation of privacy in another person's home to which he had a house key, visited daily to bathe and cook, and had unlimited access to the entire residence for any purpose.
In ruling on a motion to suppress, the trial court determines the credibility of witnesses, resolves factual conflicts, and weighs the evidence. (People v. Woods (1999) 21 Cal.4th 668, 673.) On review of the denial of a motion to suppress evidence, the appellate court defers to the trial court's express and implied factual findings that are supported by sufficient evidence. (People v. Brendlin (2008) 45 Cal.4th 262, 268.) We exercise our independent judgment, however, in determining the reasonableness of the search and seizure. (Ibid.)
An illegal search or seizure violates the federal constitutional rights only of those persons who have a legitimate expectation of privacy in the invaded place or thing. (People v. Ayala (2000) 23 Cal.4th 225, 255; People v. McPeters (1992) 2 Cal.4th 1148, 1171, overruled on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) The legitimate expectation of privacy must exist in the particular area searched or the thing seized. (McPeters, at p. 1171.) Defendant bears the burden of establishing a legitimate expectation of privacy. (Id. at p. 1172.)
Among the factors to consider in determining whether the defendant has a legitimate expectation of privacy are whether the defendant has a property or possessory interest in the thing seized or place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy, and whether he was legitimately on the premises. (People v. McPeters, supra, 2 Cal.4th at p. 1172; People v. Hernandez, supra, 199 Cal.App.3d 1182, 1189.)
The trial court properly found that Hernandez did not meet his burden of establishing a reasonable expectation of privacy in the third bedroom. Although he established that he rented a locked bedroom at the Blaine Avenue residence, he did not establish that he had access to or control over the third bedroom where the handguns were found in a box of clothing. Although Hernandez took precautions to maintain his privacy regarding his bedroom, he did not take measures to maintain any privacy in the third bedroom; its door was open and the contents stored there belonged to Guzman and his girlfriend. Hernandez thus had no reasonable expectation of privacy in a room he neither controlled, used nor even entered. (People v. Hernandez, supra, 199 Cal.App.3d 1182, 1190.)
II.
Hernandez argues that the trial court erred by finding as a matter of law that Raymond Lugo was not an accomplice, thereby refusing the defense request for an accomplice corroboration instruction pursuant to section 1111. (CALCRIM Nos. 334, 335.) He asserts that Raymond was an accomplice as an aider and abettor, relying on U.S. v. Canon (9th Cir. 1993) 993 F.2d 1439, 1442 [prosecution does not have to prove aider and abettor knew principal was a felon to convict him of aiding and abetting a felon in possession of a firearm]. (Contra, U.S. v. Gardner (6th Cir. 2007) 488 F.3d 700, 715 [better reasoned rule is that prosecution must prove that aider and abettor knew or had reason to know that principal was convicted felon]; U.S. v. Graves (9th Cir. 1998) 143 F.3d 1185, 1188, fn. 3 ["[W]e have serious reservations regarding the soundness of [U.S. v. Canon]"in part because the decision contains no analysis and insufficient authority]; U.S. v. Xavier (3d Cir. 1993) 2 F.3d 1281, 1286 [prosecution must show that aider and abettor knew or had reason to know that principal was convicted felon].) Hernandez also asserts that there is insufficient independent corroborating evidence linking him to commission of the crimes.
Section 1111 provides: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."
For several reasons, we reject this contention.
First, we agree with U.S. v. Gardner, supra, 488 F.3d 700, 714-715, that the better-reasoned rule requires the aider and abettor to know or have reason to know that the principal was a convicted felon. Here there is no evidence that Raymond knew or had reason to know that Hernandez is a convicted felon. Speculation that Raymond knew of Hernandez's felon status because they were former neighbors is insufficient evidence to warrant the instruction. Thus the trial court properly decided as a matter of law that Raymond was not an accomplice. (People v. Williams (1997) 16 Cal.4th 635, 679 [court may determine if witness is an accomplice as a matter of law if evidence regarding his culpability is clear and undisputed].)
Assuming Raymond's accomplice status for purposes of argument, however, there is sufficient evidence to corroborate his testimony. (People v. Whisenhunt (2008) 44 Cal.4th 174, 215.) "Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense." (Ibid.) Here sheriff's deputies found the Lugo handguns in the third bedroom of a small house in which Hernandez rented a room. The third bedroom was not locked to Hernandez. The proximity of the stolen handguns to Hernandez's rented room is independent evidence that tends to connect Hernandez with the charged crimes. (People v. Avila (2007) 38 Cal.4th 491, 562-563; id. at p. 563 ["Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime"].)
III.
Hernandez contends that the trial court abused its discretion by denying his request for a grant of probation. He points out that he was employed delivering stationery supplies to government offices and had become less involved in a neighborhood street gang. Hernandez adds that there was no evidence presented at trial that he intended to use the firearms that Raymond Lugo "traded." He also points out that he has only one prior felony conviction.
At sentencing, Hernandez's counsel stated that Hernandez was formerly "involved heavily or moderately with gangs" but is "away from that," and that "[h]e hasn't gotten completely away from that because that's kind of where he lives . . . ." Counsel also described Hernandez as an "old-school" gang member who counseled and calmed younger, brasher gang members.
The decision to grant or deny probation lies within the trial court's discretion. (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) The appellant bears the burden of establishing that the sentencing decision is irrational or arbitrary. (Id. at p. 376.) In the absence of such showing, we presume that the trial court acted to achieve legitimate sentencing objectives and a reviewing court will not set aside a discretionary determination to impose a particular sentence. (Id. at pp. 376-377.)
Hernandez has not met his burden of establishing an irrational sentencing decision. In denying Hernandez's request for probation, the trial court agreed with the probation officer's recommendation and stated these reasons to deny probation: "[T]he first is that he's already been convicted of the same offense before. . . . [A]lthough it's possible that his version of what occurred is correct, it seems highly improbable. . . . [T]here's no reason . . . why he would need be in possession of firearms." In light of Hernandez's prior 2006 felony conviction (he pled guilty to unlawful possession of ammunition) and his continuing relationship with a criminal street gang, the trial court's sentencing decision is not unreasonable.
IV.
Hernandez asserts that the trial court erred by imposing a two-year concurrent prison term for count 2 despite an express finding that section 654 applied. (People v. Lawrence (2000) 24 Cal.4th 219, 226 [section 654 does not allow any multiple punishment, whether concurrent or consecutive]; People v. Deloza (1998) 18 Cal.4th 585, 592 ["Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences"].) The Attorney General concedes. The concurrent two-year term for count 2 must be stayed. (Ibid.)
Our Supreme Court is presently considering whether a felon may be punished separately for possession of multiple firearms. (People v. Correa (Cal. 2008) 187 P.3d 887, review granted July 9, 2008, No. S163273.)
We modify the judgment to stay execution of sentence on count 2 pending finality of judgment and service of sentence on count 1, such stay to become permanent upon completion of sentence on count 1. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
COFFEE, J.
Charles W. Campbell, Judge
Superior Court County of Ventura
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Shira B. Seigle, Deputy Attorney General, for Plaintiff and Respondent.