Filed 10/4/16 P. v. Breazell 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F069941
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR044192)
                   v.

LEON O'FARRELL BREAZELL,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Joseph A.
Soldani, Judge.
         Peter J. Boldin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-
         Leon O’Farrell Breazell was found guilty of illegal possession of ammunition.
After reviewing the record, appellate counsel could not identify any arguable issues. We


*        Before Detjen, Acting P.J., Franson, J. and Smith, J.
have thoroughly reviewed the record and concur there are no arguable issues.
Accordingly, we affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
       At one point, Breazell had three different complaints pending which were
consolidated upon motion by the prosecutor. The first amended consolidated complaint
appears to contain six causes of action, all drug or firearm offenses, and numerous
enhancements.1
       Breazell filed two separate motions to suppress evidence pursuant to Penal Code
section 1538.5,2 contending in both motions the evidence seized was obtained as a result
of an illegal search. The trial court heard the motions to suppress in conjunction with the
preliminary hearing. After argument by the parties, the trial court granted both motions.
       As a result of the trial court’s ruling, the information contained only two causes of
action, both arising out of the same incident. Count one charged Breazell with being a
felon in possession of a firearm (the firearm count). (§ 29800, subd. (a)(1).) Count two
charged him with being a felon in possession of ammunition (the ammunition count).
(§ 30305, subd. (a)(1).) Both counts alleged Breazell had served two prior prison
sentences within the meaning of section 667.5, and he committed both offenses while on
bail or released on his own recognizance.3
       Prior to trial, Breazell moved to require the prosecutor to disclose the identity of
the confidential informant who provided the police with the information which was used
to obtain a search warrant. During the search, the officers discovered the firearm and

1       The first amended consolidated complaint contains causes of action labeled 1, 2, 3,
7, 8, and 9. It is unclear if there was causes of action 4, 5, and 6 that simply do not
appear in this record. As shall appear, the discrepancy, if any, is not significant.
2      All statutory references are to the Penal Code unless otherwise stated.
3      The information also includes a 1998 conviction for violation of section 529. This
allegation was dismissed during the trial when it was determined the conviction was not
Breazell’s.


                                             2.
ammunition which forms the basis for the charges against Breazell. After an in camera
hearing, the trial court denied the motion, but ordered a redacted portion of the sealed
portion of the search warrant application disclosed to both parties.
       After pretrial motions and prior to jury selection, Breazell made a motion for new
appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The
trial court denied the motion. Once the trial court denied his Marsden motion, Breazell
made a request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806
(Faretta), but quickly changed his mind when the trial court informed him he would not
be granted a continuance to prepare for trial.
       Also prior to trial, as a tactical decision, Breazell admitted he was on bail when he
allegedly committed the charged offenses.
       The testimony was limited to three witnesses. Madera County District Attorney
Investigator Luis Carrillo testified that Breazell was convicted of four felonies for the
purpose of establishing that Breazell was prohibited from possessing firearms or
ammunition.
       Olga Patricia Patrick, a correctional case records supervisor for the California
Department of Corrections, testified that Breazell served two prior prison terms for his
felony convictions.
       Madera Police Officer Jerry Smith testified that in the process of searching the
residence occupied by Breazell he located ammunition and a TEC-9 assault weapon. He
also located envelopes and other items which indicated Breazell’s occupancy of the
bedroom. Smith test fired the weapon and determined it was operable, however it was
missing a part that made moving the slide back to chamber a round difficult. The firearm
and ammunition were entered into evidence, as were five pieces of mail with Breazell’s
name on them.




                                             3.
       After being read his constitutional rights pursuant to Miranda v. Arizona (1966)
384 U.S. 436, Breazell told Smith a cousin had brought the firearm to his residence, but
he did not think it was operable. He also admitted he possessed the ammunition.
       Breazell testified in his defense. He began by explaining his military background
to establish his familiarity with weapons. He testified the weapon at his residence came
out of a trash can and was inoperable. A family member had brought it to his house for
Breazell to examine, and after he determined it was unusable as a weapon he forgot about
it. He admitted he had some ammunition “floating around” his residence, but there were
not any weapons that could fire the ammunition. He claimed he did not realize the
firearm had been left in the residence by his relative.
       Closing arguments focused on the elements of the crimes. The prosecutor argued
the elements of each crime were proven beyond a reasonable doubt. Defense counsel
focused on the condition of the firearm and argued it did not appear to be operational,
thus Breazell did not violate the law. He also argued Breazell did not know the
ammunition was in the house.
       The jury could not reach a verdict on the firearm count, but found Breazell guilty
of possession of ammunition by a felon. The jury also found both prior prison term
enhancements true. The trial court sentenced Breazell to the aggravated term of three
years in prison for the ammunition count, plus two years for the prior prison term
enhancements, for a total term of five years in prison.4 The prosecution dismissed the
firearm count.




4      Breazell had another case trailing this case. That case was the one on which
Breazell was on bail when the ammunition offense was committed. Pursuant to section
12022.1 (the on bail enhancement) the trailing case would be the primary offense. Since
the primary offense did not result in a conviction, the on bail enhancement could not be
imposed. (§ 12022.1, subd. (d).)


                                              4.
                                       DISCUSSION
       Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
asserting that after reviewing the record, he could not identify any arguable issues. After
a thorough review of the record, we agree there are no arguable issues in this case.
       The evidence at trial was straightforward. The prosecution contended the
ammunition and firearm were found in Breazell’s residence, while defense counsel
contended the firearm was not operational and Breazell did not know the ammunition
was there. The closing arguments focused on the elements of the crimes. The parties
agreed to the jury instructions. The trial court acted well within its discretion in imposing
sentence, and in denying Breazell’s Marsden motion.
       By letter dated September 17, 2015, we invited Breazell to inform this court of any
issues he wished us to address. Breazell responded to our letter raising several issues.
First, he attempts to litigate the validity of the search warrant which resulted in the
discovery of the ammunition which was in his possession. The record reflects that
defense counsel filed a motion to disclose the identity of the confidential informant and to
quash the search warrant. After an in camera hearing, the trial court denied the motion to
disclose the identity of the confidential informant, but did order a redacted portion of the
search warrant disclosed. After reviewing the information provided, defense counsel
withdrew the motion to quash, concluding the motion was without merit. Breazell’s
attempt to litigate this issue on appeal is not an issue properly before this court because
he failed to raise the issue at any point before conviction. (§ 1538.5, subd. (m); People v.
Davis (2008) 168 Cal.App.4th 617, 629.)
       Similarly, Breazell seeks to obtain additional documentation related to the
Marsden hearing, and his decision not to represent himself. We are unsure which
documents to which Breazell is referring, but the record of the hearing appears to be
complete, as is his withdrawal of the request to represent himself. He also requested



                                              5.
production of his Faretta declaration, which the record suggests was never filed with the
court.
         Breazell does raise one issue which we can address. He asserts that once he
decided to represent himself, he was entitled to a continuance. A motion made pursuant
to Faretta may be denied if it is made after trial has commenced and would necessitate a
continuance. (People v. Clark (1992) 3 Cal.4th 41, 110, overruled on other grounds in
People v. Pearson (2013) 56 Cal.4th 393, 461-462.) Therefore, the trial court did not
abuse its discretion when it refused to continue the trial if Breazell decided to represent
himself.
         Finally, Breazell is apparently dissatisfied with defense counsel for withdrawing
the motion to quash the search warrant. This decision was a tactical decision made by
defense counsel, and is supported by the record. Defense counsel reviewed the disclosed
portion of the search warrant, which said, in essence, the confidential informant met with
Breazell and purchased illegal drugs. Concluding the motion to quash lacked merit,
defense counsel decided to withdrawal the motion. Tactical decisions such as this based
on an informed decision and strategy are within the discretion of the trial attorney. (In re
Lucas (2004) 33 Cal.4th 682, 721-722; People v. Davis, supra, 168 Cal.App.4th at p.
631.) Moreover, a disagreement on trial tactics is not grounds for substitution of counsel.
(People v. Williams (1970) 2 Cal.3d 894, 905.)
         Breazell also accuses Smith of tampering with evidence, a charge he asserts Smith
admitted to on the record. Our review of the record did not reveal any evidence that
Smith tampered with the firearm. Smith admitted that he test-fired the firearm, and that
before he did that he and the range master cleaned it to minimize the possibility of a
misfire. This is not proof of tampering with evidence. Moreover, the firearm count was
dismissed, so Breazell could not have suffered any possible prejudice.
                                       DISPOSITION
         The judgment is affirmed.

                                              6.
