Filed 2/14/14 P. v. Akin CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                           ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072957

         v.                                                                    (Super. Ct. No. CRF121403)

ZACHARY BE AKIN,

                   Defendant and Appellant.




         A jury convicted defendant Zachary Be Akin of possession of a firearm by a
person previously convicted of a felony. (Pen. Code, § 29800, subd. (a)(1).) 1 The trial
court found that defendant had a prior conviction for discharging a firearm in a grossly
negligent manner (§ 246.3), and sentenced defendant to an aggregate term of three years
four months in prison.



1 Undesignated statutory references are to the Penal Code.


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       Defendant now contends the trial court prejudicially erred in admitting evidence of
the prior felony. He argues the prior acts were improperly offered to prove a common
plan or scheme under Evidence Code section 1101, subdivision (b); but even if the
evidence was offered to prove knowledge or lack of mistake, the prior acts were not
sufficiently similar to the charged conduct.
       We conclude defendant forfeited his challenge to the admissibility of the prior act
evidence. Defendant did not move in limine to exclude the prior act evidence, he did not
specifically object that the evidence was inadmissible to prove knowledge or lack of
mistake (the specific grounds upon which the trial court admitted the evidence), and he
did not object when the prior act evidence was actually offered at trial. Moreover, to the
extent defendant’s contention may be deemed a claim that the trial court committed
instructional error (because the trial court instructed the jury that the prior act evidence
could be used to prove, among other things, a plan or scheme), we conclude any error
was harmless. Strong evidence supports defendant’s conviction for possession of a
firearm by a person previously convicted of a felony.
       The Attorney General separately asserts that the abstract of judgment should be
corrected to accurately reflect the orally pronounced presentence credits. We agree.
       We will affirm the judgment and order correction of the abstract of judgment.
                                      BACKGROUND
                                               A
       Responding to a reported traffic accident on December 24, 2011, a Woodland
police officer saw an unoccupied vehicle in the street. The vehicle had struck a pole.
Defendant’s cell phone was near the driver’s seat.
       Woodland Police Officer Fondersmith and Sergeant Sexton went to defendant’s
listed address. Fondersmith had contacted defendant there before. The officers knocked
on the door; Vincent R., one of the residents, opened the door about two minutes later.



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       Officer Fondersmith saw defendant lying on a couch, staring at the officer, and he
also saw something that looked like a gun muzzle sticking out from under defendant’s
leg. After ordering defendant to keep his hands where they were, Officer Fondersmith
grabbed the object, which turned out to be a six-millimeter Browning semiautomatic
pistol. Vincent R. said, “That’s not my gun.”
       Subsequent investigation showed that the gun was not registered to defendant or
Vincent R. and bore no recoverable fingerprints; it did not have a magazine in it, but it
looked functional.
       Vincent R. and his mother, Samantha S., who also lived at the residence, testified
that neither of them owned the gun. Samantha S. said her boyfriend, who often stayed at
the apartment, did not possess a gun, so far as she knew. Defendant, who is
Samantha S.’s cousin, sometimes stayed at the apartment in 2011.
       Defendant was placed under arrest for possession of a firearm, which was
prohibited under the terms of defendant’s probation. Officer Fondersmith smelled
alcohol on defendant, who appeared physically unable to perform standard field sobriety
tests. Officer Fondersmith concluded defendant was under the influence of alcohol.
Defense counsel argued to the jury that the People had not proven defendant owned the
gun, and that when detained he was so intoxicated he did not know there was a gun under
his body.
                                             B
       Woodland Police Officer Lewis LeFlore testified that less than eight months
before the charged offense, he was assisting another officer in response to a report of
gunshots. About five minutes later, LeFlore heard two or three popping sounds near a
market.
       Veronica T., who lived nearby, also heard popping sounds. Walking outside, she
saw an adult male, saw two muzzle flashes near his head, and heard more popping
sounds. She said the man had fired a handgun in the air.

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       Officer LeFlore saw four females walking toward a market. He saw a male
standing by a pickup truck about 50 feet behind the females, then heard two more pops
that could have been gunshots. He moved his vehicle closer, put a spotlight on the male
(defendant), got out of his patrol car, identified himself as a police officer, and ordered
defendant to step over to him. Defendant ran, but Officer LeFlore caught and detained
him as defendant tried to scale a fence.
       A .22-caliber Browning pistol was found about two feet beyond the fence.
Defendant’s cell phone had a photo of a juvenile holding two handguns, one of which
looked like the recovered gun. Defendant had two .22-caliber rounds on his person.
                                              C
       Before trial, the People moved in limine to admit evidence of defendant’s prior
offense under Evidence Code section 1101, subdivision (b), in order to prove knowledge,
absence of mistake or accident, and a common plan. Defendant opposed the motion on
the ground that there was no similarity between the prior and current offenses except that
they both involved guns. During argument on the motion in limine, however, the trial
court confirmed with the prosecutor that her motion was for the limited purposes of
showing knowledge and lack of mistake, and that there were no purposes beyond those.
The trial court granted the motion for those uses, saying the evidence would be allowed
to show that the guns in both offenses were the same brand and that defendant had the
ability to recognize a firearm.
       Before Officer LeFlore testified at trial, the trial court and counsel had another
discussion about the scope of the prior act evidence. Defendant submitted the matter and
did not object to the admissibility of the prior act evidence presented in Officer LeFlore’s
testimony.
       Later, in discussing jury instructions, the People asked the trial court to instruct the
jury that in addition to knowledge and lack of mistake, the prior act evidence could also
be considered for the purpose of showing a common plan. The People argued

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defendant’s possession of a Browning firearm in both cases showed a common plan to
carry that type of firearm. Defense counsel objected, arguing that the guns in the two
cases were “as different as day and night.” The trial court noted it was “not the strongest
common plan argument,” but because there was evidence to support the argument, the
trial court agreed to include a reference to plan or scheme in the instruction. Among
other things, the trial court instructed the jury consistent with CALCRIM No. 375.
       Defense counsel argued to the jury that there was no similarity between the
firearms in the two cases other than their brand name: “This gun practically takes up this
whole box. This gun will fit in the palm of your hand. [¶] It is like saying because the
defendant one time stole a semi-truck made by Dodge he now must have stolen a sports
car made by the same manufacturer.” He also argued that the People had not shown
defendant owned the gun in the current case, and that when detained he was so
intoxicated, he did not know there was a gun under his body.
                                       DISCUSSION
                                               I
       Defendant contends the trial court prejudicially erred in admitting detailed
evidence of the prior felony. He argues the prior acts were improperly offered to prove a
common plan or scheme under Evidence Code section 1101, subdivision (b), but even if
the evidence was offered to prove knowledge or lack of mistake, the prior acts were not
sufficiently similar to the charged conduct.
       A party wishing to exclude evidence must make a timely and specific objection to
the evidence. (Evid. Code, § 353, subd. (a).) An objection to an in limine ruling
admitting evidence is usually insufficient to preserve the objection for appeal if the
objection is not repeated when the evidence is offered. (See People v. Morris (1991)
53 Cal.3d 152, 190 (Morris) disapproved on another point in People v. Stansbury (1995)
9 Cal.4th 824, 830, fn. 1; accord, People v. Navarette (2003) 30 Cal.4th 458, 491 [in
limine motion to exclude evidence preserves claim of error without subsequent Evidence

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Code section 353 objection if, and only if, the motion raises a specific legal ground for
excluding the evidence and is made at a time when the trial judge can determine the
evidentiary question in its appropriate context].)
       Here, defendant did not move in limine to exclude the prior act evidence, he did
not specifically object that the evidence was inadmissible to prove knowledge or lack of
mistake (the specific grounds upon which the trial court admitted the evidence), and he
did not object when the prior act evidence was actually offered at trial. Under these
circumstances, defendant forfeited his challenge to the admissibility of the prior act
evidence. (See Morris, supra, 53 Cal.3d at p. 190.)
       Moreover, to the extent defendant’s contention may be deemed a claim that the
trial court committed instructional error (because the trial court instructed the jury that
the prior act evidence could be used to prove, among other things, a plan or scheme), we
conclude any error in instructing the jury regarding a plan or scheme was harmless under
the standard of People v. Watson (1956) 46 Cal.2d 818, 836.
       The trial court instructed the jury to consider the similarity or lack of similarity of
the current and prior conduct. We presume the jury followed that instruction. In
addition, the trial court did not err in admitting the prior act evidence to show defendant’s
knowledge or lack of mistake. The fact that defendant possessed a Browning firearm on
a prior occasion was probative to prove that he knew, at the time of the charged offense,
that there was a Browning firearm under his leg, and that he did not simply find himself
in proximity to the firearm by accident or mistake, despite his intoxication. And finally,
there is strong evidence supporting defendant’s conviction for possession of a firearm by
a person previously convicted of a felony.
       Defendant has shown no basis for reversal.
                                              II
       The Attorney General asserts that the abstract of judgment should be corrected to
accurately reflect the orally pronounced presentence credits. At sentencing, the trial court

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orally awarded, for the prior case, a total of 171 presentence credits (115 actual days and
56 conduct days). The minute order correctly reflects those credits. But the abstract of
judgment incorrectly indicates, for the prior case, a total of 115 presentence credits (56
actual and 171 conduct). We will order the abstract of judgment corrected to reflect the
orally imposed credits. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
                                       DISPOSITION
       The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment reflecting, for the prior case (case No. CRF112119), a total of 171
presentence credits (115 actual days and 56 conduct days).


                                                               MAURO                     , J.


We concur:


             NICHOLSON                   , Acting P. J.


             ROBIE                       , J.




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