Opinion
B295710
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. MARQUIS D. VILLANUEVA, Defendant and Appellant.
Helen Hoeffel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA467825) APPEAL from a judgment of the Superior Court of Los Angeles County, Shelly B. Torrealba, Judge. Affirmed. Helen Hoeffel, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant Marquis D. Villanueva appeals from a judgment of conviction entered after a jury convicted him of unlawful possession of a firearm (Pen. Code, § 29815, subd. (a); count 3) and ammunition (§ 30305, subd. (a)(1); count 2). The trial court imposed the lower term of one year and four months on count 3; it imposed a concurrent term of eight months on count 2. The court waived fees and fines on both counts. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
In August 2017, a jury convicted Villanueva of misdemeanor carrying a loaded firearm in public (§ 25850, subd. (a)) and misdemeanor carrying a concealed weapon on his person (§ 25400, subd. (a)(2)). The court suspended imposition of sentence and placed Villanueva on three years' summary probation, conditioned on service of 60 days in county jail. As conditions of probation, the court ordered Villanueva not to own, use, or possess any firearms, and to submit to probation searches at any time. Villanueva acknowledged that he understood and accepted the probation conditions, and he agreed to abide by them.
On the afternoon of May 3, 2018, agents from the California Department of Justice went to the house where they believed Villanueva lived, to conduct a search. Their records showed guns registered to Villanueva and that he was prohibited from owning or possessing the guns.
Villanueva, his mother, and his brother were at the house. The agents detained all three outside the house. The agents entered what they concluded to be Villanueva's bedroom, based on documents with his name on them found inside the room. Inside, they found two handguns, a shotgun, and ammunition. They took Villanueva into custody.
Villanueva testified that on May 3, 2018, he was not living in the house with his mother and brother. He was staying "down the block" with people he had known for a long time, who were like family to him. He did not have a key to his mother's house, and he did not have a room there. He still kept some of his belongings there, however.
Villanueva had legally purchased the guns found in his mother's house; when he purchased them, he was not under any weapons purchase or possession restrictions. At the time the agents came to search the house, Villanueva believed he was not on probation once he was released from jail on the previous case. He testified that he was never told that he was on probation and that, as part of his probation, he was not to have any firearms.
After the jury found Villanueva guilty of the two charged offenses, the trial court found him in violation of probation. It then discussed the possibility of sending him for a section 1203.3 diagnostic and providing him with a treatment plan rather than sending him to jail. The court stayed sentencing until an evaluation was completed. It also imposed a 90-day jail term for the probation violation.
The evaluation report recommended that Villanueva be sentenced to state prison. Before sentencing, however, the trial court gave Villanueva the opportunity to discuss with counsel any alternatives that he would be willing to accept. After discussing the matter, counsel indicated that Villanueva would be willing to accept formal probation. The court gave Villanueva time to consider formal probation, with requirements that he participate in an anger management program, counseling, community labor, and possibly complete his G.E.D. He would also be banned from having any weapons and would have search conditions.
After examining available options, the court determined that Villanueva qualified only for outpatient services. The court "had contemplated a live-in program that would give [Villanueva] some structure and some living skills to get started." The court remained willing to place Villanueva on probation, however, if he agreed to live in his mother's house and surrendered the remaining gun that was registered to him, which had not been recovered during the search. Villanueva indicated that the gun was in the possession of a friend in Sun Valley. The court gave Villanueva a week to surrender the gun; if he complied, the court would place him on probation. Villanueva agreed to do that, and then made a Marsden motion, which the court denied.
People v. Marsden (1970) 2 Cal.3d 118.
By the next hearing, Villanueva had not surrendered the gun. He either could not or would not provide the information necessary to locate the gun. The contact information for the friend in Sun Valley that he provided to his counsel was incorrect. When his counsel and the court tried to discuss the matter with him, Villanueva kept challenging the probation violation. His counsel stated that she did not "believe he will be able to comply" with the request that he surrender the gun. The court believed that Villanueva's continuing questions regarding the probation violation reflected an "implied desire to remain in possession of weapons." Thus, both for Villanueva's protection and for the protection of the community, the court imposed a prison sentence.
DISCUSSION
We appointed counsel to represent Villanueva on this appeal. After review of the record, Villanueva's counsel filed an opening brief requesting that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. On October 17, 2019, we sent a letter to Villanueva, advising him that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
Villanueva did not respond within the 30-day period but subsequently filed a request that his counsel on appeal be replaced due to her failure to obtain a transcript of the 2017 misdemeanor trial. We denied that request.
We have examined the entire record. We are satisfied that no arguable legal issues exist and that Villanueva's counsel has fully complied with her responsibilities. By virtue of counsel's compliance with the Wende procedure and our review of the record, we are satisfied that Villanueva received adequate and effective appellate review of the judgment entered against him in this case. (People v. Wende, supra, 25 Cal.3d at p. 441; accord, People v. Kelly (2006) 40 Cal.4th 106, 109-110.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
JOHNSON, Acting P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------