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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE , Plaintiff and Respondent ,

v.
PAULINO FRANCO, JR. , Defe ndant and Appellant

. F066932
(Super. Ct. No s. VCF225749, VCF246480, VCF270098)



### OPINION

APPEAL from a judgment of the Superior Court of Tula re County. Edward M. Lacy and H. N. Papadakis , Judge s

. Sylvia Whatley Beckham , under appoi ntment by the Cou rt 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 Plaintif f Respondent.

- ooOoo

Paulino 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 prosecuti on failed to establish the corpus2

.

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 n orth. 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 drivin g) to turn around and follow Franco

. Coll ins 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 La urel, Franco’s car was parked in front
of the home of F ranco’s passenger, Antonio Velas quez. Franco and Vel as quez 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.” Al fano 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. Ve lasquez submitted to arrest after Collins drew his gun. A subsequent
search revealed a loaded handgun on the roof by the back yard 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 hel d it3

.

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 chargi ng Franco with two counts: (1) being a felon in possession of a fir earm (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
bene fit of a criminal street gang (§ 186. 22, subd. (b)(1))

. For sentence

- enhancemen t purposes pursuant to sections 667 and 1170.12, and for purposes of probatio n eligibility
under section 1203, the information a lleged that Franco had one prior strike conviction and two other prior felony convict ions. 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 po lice car until after he got out of his car at Velasquez’s house. The ju ry found Franco guilty on count 1, being a felon in possession of a firearm.
I t 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 ca ses, 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 t erminated his probation

. The court imposed sentence for the two probation cases as well as the current
conviction. For the accessory

- to

- murder convictio n, the court sentenced Franco to two years, the middle term, plus three more years for the gang e nhancement. For the

1 Subsequent statutory references are to the Penal Code unless noted otherwise.4

.

ammunition

- possession offense, the court imposed a consecutive sentence of eight months, one

- third of the middle term. The court sentence d Franco to 16 months
consecutive , equal to one

- third of the doubled middle term, for the current conviction. The total sentence was seven years.
DISCU SSION
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 evi dence 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 st andard of proof for establishment of the corpus delicti independent of the defendant’s out

- of

- court statements is low:
“The amount of i ndependent 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 c rime 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 delic ti 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 rule5

.

ordinarily requires evidence only that a crime happened , and d oes 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 wa s a felon. If the crime was committed at all, Franco argues, it ha d 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 de licti. 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.
Acco rding 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. The n 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 s teps 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 g un and was acting to control what happened to it. Under the minimal “slight evidence” standard applicable to the corpus delicti analysis, t he police testimony was sufficient to support an inference that this is what happened. Franco argues that it woul d have been impossible for the officers to perceive any acceleration of Franco’s car because “it is such a short distance” between the point where6

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the officers saw the car and the street onto which it turned. Instead, he says, he would “have necessarily h ad 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 propositi on. 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 p p. 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 Hilliar d 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 co urt operations assessm ent 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 was7

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convicted in the first of the probation cases, the statute provided for an assessment of $30. ( Stats. 200 9, 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 t he total court operations assessmen t (§ 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.