Filed 9/16/14 P. v. Franco CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PAULINO FRANCO, JR.,

Defendant and Appellant.

F066932

(Super. Ct. Nos. VCF225749, 

VCF246480, VCF270098)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Edward M. 

Lacy and H. N. Papadakis, Judges.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Henry J. 

Valle, Deputy Attorneys General, for Plaintiff Respondent.

-ooOooPaulino Franco, Jr., was convicted of being a felon in possession of a firearm. He 

also was found to be in violation of the terms of his probation in two prior cases and was 

sentenced for all three. He now argues that the prosecution failed to establish the corpus 
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delicti of the felon in possession of a firearm offense independently of his confession. 

We reject this contention. 

The parties agree that the abstract of judgment contains an error of $10 on one of 

the fees imposed by the trial court. We will order this error corrected and otherwise 

affirm the judgment. 

FACTS AND PROCEDURAL HISTORY

Visalia Police Officer Dirk Alfano was on patrol with his partner, Officer Adam 

Collins, on May 25, 2012. As they drove south on Burke Street, Alfano spotted Franco, 

whom he recognized, driving north. He made eye contact with Franco. Alfano believed 

Franco’s license was suspended and knew he was on probation, so he asked Collins (who 

was driving) to turn around and follow Franco. Collins made a U-turn and turned on the 

police car’s flashing lights. According to Alfano’s trial testimony, Franco “began to 

speed up” as the police car turned. Franco then “made a hurried turn” onto Laurel 

Avenue. By the time the officers followed onto Laurel, Franco’s car was parked in front 

of the home of Franco’s passenger, Antonio Velasquez. Franco and Velasquez were 

getting out of the car. 

As Alfano got out of the police car, Franco headed for the front door of the house 

“in a hurried manner.” Alfano ordered Franco to stop. Franco complied. Velasquez, 

however, disobeyed an order to stop, according to Collins’s testimony, and started to jog 

into the back yard. As Collins followed, he heard a thud that sounded like something 

hitting the roof. Velasquez submitted to arrest after Collins drew his gun. A subsequent 

search revealed a loaded handgun on the roof by the backyard where Velasquez 

surrendered. 

Alfano interviewed Franco at the police station. At first, Franco denied that there 

had been a gun in the car. Toward the end of the interview, he admitted that the gun was 

his. He said he had the gun in his pants pocket when he spotted the police car. Then he 

sped up, headed for Velasquez’s nearby house, took the gun out of his pocket and held it 
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on his lap. At the house, Velasquez took the gun, got out and tried to get rid of it. The 

interview was not recorded. 

The district attorney filed an information charging Franco with two counts: 

(1) being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1));

1 and 

(2) carrying a loaded firearm in a public place (§ 25850, subd. (a)). The information 

alleged that both counts were committed at the direction of, in association with, or for the 

benefit of a criminal street gang (§ 186.22, subd. (b)(1)). For sentence-enhancement 

purposes pursuant to sections 667 and 1170.12, and for purposes of probation eligibility 

under section 1203, the information alleged that Franco had one prior strike conviction 

and two other prior felony convictions. The gang allegations were later dismissed at the 

request of the prosecution. 

Franco testified at trial. He denied that he confessed to possessing the gun and 

said he was not aware that a gun was in the car. He also said he did not notice the police 

car until after he got out of his car at Velasquez’s house. 

The jury found Franco guilty on count 1, being a felon in possession of a firearm. 

It found him not guilty on count 2, carrying a loaded gun in a public place. Franco 

admitted the prior convictions. 

At the time of his arrest, Franco was on probation in two prior cases, one for 

unlawful possession of ammunition (former § 12316, subd. (b)(1)) and one for being an 

accessory to murder after the fact with a gang enhancement (§§ 32, 186.22, 

subd. (b)(1)(a)). The court found that Franco violated the terms of probation in those 

cases. It terminated his probation. 

The court imposed sentence for the two probation cases as well as the current 

conviction. For the accessory-to-murder conviction, the court sentenced Franco to two 

years, the middle term, plus three more years for the gang enhancement. For the 

 

1Subsequent statutory references are to the Penal Code unless noted otherwise. 
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ammunition-possession offense, the court imposed a consecutive sentence of eight 

months, one-third of the middle term. The court sentenced Franco to 16 months

consecutive, equal to one-third of the doubled middle term, for the current conviction. 

The total sentence was seven years.

DISCUSSION

I. Corpus delicti

Franco’s sole argument on appeal (apart from the clerical error) is that the 

prosecution failed to establish the corpus delicti of the offense of being a felon in 

possession of a firearm by evidence independent of his out-of-court statement. We 

disagree. 

The corpus delicti rule was set forth by the California Supreme Court in (among 

many other cases) People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169:

“In every criminal trial, the prosecution must prove the corpus 

delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, 

and the existence of a criminal agency as its cause. In California, it has 

traditionally been held, the prosecution cannot satisfy this burden by relying 

exclusively upon the extrajudicial statements, confessions, or admissions of 

the defendant .... [¶] ... This rule is intended to ensure that one will not be 

falsely convicted, by his or her untested words alone, of a crime that never 

happened.” 

The standard of proof for establishment of the corpus delicti independent of the 

defendant’s out-of-court statements is low: 

“The amount of independent proof of a crime required for this purpose is 

quite small; we have described this quantum of evidence as ‘slight’ 

[citation] or ‘minimal’ [citation]. The People need make only a prima facie 

showing ‘“permitting the reasonable inference that a crime was 

committed.”’ [Citations.] The inference need not be ‘the only, or even the 

most compelling one ... [but need only be] a reasonable one ....’ 

[Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 301-302.)

Franco’s argument is that the corpus delicti was not established by evidence 

independent of his confession because nothing showed that he—as opposed to 

Velasquez—ever possessed the gun. Franco acknowledges that the corpus delicti rule 
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ordinarily requires evidence only that a crime happened, and does not require any 

evidence of the identity of the perpetrator. He contends that this case is an exception to 

this rule because an element of the offense is the perpetrator’s status as a felony convict, 

and because there was no evidence that Velasquez was a felon. If the crime was 

committed at all, Franco argues, it had to be committed by him, so proof of the corpus 

delicti needed to include evidence that he did it. 

Even assuming Franco is correct on this point, the prosecution satisfied its burden 

of producing slight evidence of the corpus delicti. Possession of an item can be 

established by a showing that the defendant had knowledge of the item’s presence and 

exercised dominion and control over it. (People v. Mejia (1999) 72 Cal.App.4th 1269, 

1272.) There is evidence from the actions of Velasquez that the gun was in the car. 

Franco clearly exercised dominion and control over the car. Therefore, the primary 

remaining issue where slight evidence was required was Franco’s knowledge of the gun. 

According to the police testimony, Franco sped up as the police car turned to follow him, 

and then hurriedly turned and parked at Velasquez’s house. He and Velasquez were both 

out of the car and making for the house when the officers caught up with them. Then 

Velasquez disobeyed an order to stop so that he could attempt to hide the gun. This 

testimony was at least slight evidence that Franco, being known to the officers and having 

realized that they recognized him driving on a suspended license, was taking steps in 

concert with Velasquez to get rid of the gun before the police could pull them over. Their 

plan was to get to Velasquez’s nearby house quickly and hide the gun before the police 

arrived. If this is what happened, then Franco both knew about the gun and was acting to 

control what happened to it. Under the minimal “slight evidence” standard applicable to 

the corpus delicti analysis, the police testimony was sufficient to support an inference that 

this is what happened. 

Franco argues that it would have been impossible for the officers to perceive any 

acceleration of Franco’s car because “it is such a short distance” between the point where 
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the officers saw the car and the street onto which it turned. Instead, he says, he would 

“have necessarily had to slow the vehicle’s speed in order to turn” onto Velasquez’s 

street. This, however, is pure speculation, as the record contains no evidence about the 

distance in question, the car’s capabilities, or the limits of human ability to detect 

acceleration. 

Franco also contends that People v. Hilliard (1963) 221 Cal.App.2d 719 “teaches 

that the appearance of minimal, if any, evasive behavior is not sufficient to prove 

knowing possession of the firearm.” Hilliard does not state or imply any such 

proposition. Hilliard, who was known to police, ran away when officers walked toward 

him. They pursued. During the chase, the officers’ view of Hilliard was blocked by a 

building for a few moments. After they caught Hilliard, they searched the area beside that 

building and found a gun under some litter, still warm to the touch. Hilliard said he knew 

nothing of it, but later made a self-incriminating statement. (Id. at pp. 721-722.) On 

appeal, he claimed the corpus delicti of firearm possession by a felon was not established 

independently of this statement because it was not shown that he possessed the gun. The 

Court of Appeal rejected this argument. Its analysis, in its entirety, was: “We think that 

under the circumstances of this case, it was reasonably to be inferred that the appellant 

had been in possession of the pistol until he disposed of it.” (Id. at p. 724.) The case thus 

supports Franco’s position in no way. Franco appears to be arguing that Hilliard helps 

him because the evidence against Hilliard was stronger than the evidence against Franco,

but Hilliard contains nothing implying that it represents a minimum level of evidence for 

corpus delicti purposes. 

II. Clerical error in abstract of judgment 

The abstract of judgment includes a total court operations assessment of $120 

pursuant to section 1465.8. This evidently represents $40 for the current conviction plus 

$40 for each of the two probation cases. Forty dollars is the amount of the assessment 

provided in the current version of section 1465.8. In 2009, however, when Franco was 
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convicted in the first of the probation cases, the statute provided for an assessment of $30. 

(Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 22, § 29.) At the sentencing hearing, the court 

correctly imposed a court operations assessment of $30 for this conviction. The total 

therefore should be $110, not $120. The parties concur on this point. We will order the 

error corrected. 

DISPOSITION

The trial court is directed to amend the abstract of judgment to change the total 

court operations assessment (§ 1465.8) from $120 to $110 and to forward the amended 

abstract to the appropriate correctional authorities. The judgment is affirmed in all other 

respects. 

_____________________

Chittick, J.*

WE CONCUR:

_____________________

 Poochigian, Acting P.J.

_____________________

 Franson, J.

 

*

Judge of the Superior Court of Fresno County, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.