Filed 4/15/15 P. v. Ibarra 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F068125
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR046727)
                   v.

MARIO IBARRA,                                                                            OPINION

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.

         Diane Nichols, 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, Daniel B. Bernstein and
Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       While on parole, defendant Mario Ibarra lived with his son Mariano Arredondo1 in
Chowchilla. A search warrant was obtained for the residence because police believed
Mariano was selling methamphetamine. When the warrant was executed, defendant was
present in the home alone. A digital scale containing residue of suspected
methamphetamine and two shotgun shells were found in the kitchen. At a parole
revocation hearing, the court determined defendant violated the terms of his parole by
having knowing access to ammunition.
       On appeal, defendant maintains there was insufficient evidence to show he had
knowing access to ammunition. Thus, he contends the court erred and reversal is
required. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
The People’s Evidence
       On July 3, 2013, police served a search warrant at a residence on Kings Avenue
for possible methamphetamine sales. Defendant was sitting in the living room when
officers entered the home. No one else was present.
       During the search, a large digital scale containing a residue believed to be
methamphetamine was located on top of the microwave in the kitchen. Additionally, two
shotgun rounds were found in a kitchen cupboard. One was a slug and the other was bird
shot. The shells could be observed immediately once the cupboard door was opened.
The cupboard stood at about five and a half feet in height.
       Mariano, the suspect associated with the search warrant, was detained by way of a
traffic stop prior to his arrival at the home during the execution of the warrant. He was
carrying a replica handgun.



       1Because Mariano Arredondo shares the same last name with another witness, we will
refer to them by their first names. No disrespect is intended.


                                                2.
       On the date in question, defendant was on parole. As a basic condition of parole,
defendant was not to have access to firearms or ammunition. Prior to this incident,
defendant’s parole officer had no reason to violate him. During the course of defendant’s
supervision, including four to five short conversations during home visits, defendant
appeared comfortable asking for assistance. On one occasion, defendant expressed
concern to his parole officer about the presence of gang members in the apartment
complex parking lot. Defendant never asked for assistance regarding any conduct or
behavior of his son, nor did he seek any assistance regarding a change of residence.
The Defense Evidence
       Defendant’s grandson Axel Arredondo testified that during the period he lived on
Kings Avenue with his grandfather and his uncle Mariano, he never saw defendant “with
any ammunition,” nor did defendant have a gun. Axel did see ammunition in the “top
cabinet” in the kitchen. Specifically, he saw shotgun shells and bullets for a pistol. Axel
indicated his uncle had guns in the house. He was afraid of his uncle and had been
threatened by him. Axel never told anyone about the ammunition.
       Lorenza Briones, who had raised Mariano from the age of 15 into adulthood,
testified Mariano possessed ammunition while living at the house on Kings Avenue.
Additionally, she had seen him in possession of drugs, and she feared him.
       Defendant’s granddaughter Anna Armenta testified she last saw her grandfather
“years ago, lots of years ago.” She also testified Mariano is her uncle and she fears him
because he has guns and had recently threatened her.
       Defendant testified in his own defense. He denied being aware of any ammunition
in the home. On cross-examination, defendant indicated he had lived at the home on
Kings Avenue for about two years. He spent most every day there as he was not
employed. He testified that food was stored in the refrigerator, rather than the cabinets.
Defendant acknowledged cooking, cleaning, and using the kitchen, including the
microwave.


                                             3.
The Subsequent Proceedings
       A petition for revocation of parole was filed in July 2013. It alleged defendant had
violated his parole, following an out-of-state conviction, by having access to ammunition
in violation of Penal Code section 30305, subdivision (a)(1).2 On July 15, 2013,
defendant entered a denial to the petition.
       A parole revocation proceeding commenced on August 26, 2013, and concluded
on September 23, 2013. The court found defendant had violated the terms of his parole
by his knowledge of and access to ammunition belonging to his son. This appeal
followed.3
                                         DISCUSSION
Sufficiency of the Evidence
       Defendant contends the evidence is insufficient to support the court’s finding that
he had knowing access to the ammunition. He maintains that although the court correctly
implied such access must involve actual knowledge rather than mere access, the evidence
deduced offered no reasonable inference he had knowing access to the ammunition. We
do not agree.
       In Morrissey v. Brewer (1972) 408 U.S. 471, the United States Supreme Court
held that a parolee is not entitled to the full panoply of due process rights, because parole
revocation is not part of a criminal prosecution and because revocation deprives a parolee
of conditional liberty, not absolute liberty; nevertheless, the high court held that a parolee



       2“No person prohibited from owning or possessing a firearm under Chapter 2
(commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9
of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, shall own, possess, or
have under custody or control, any ammunition or reloaded ammunition.”
       3We agree with defendant that a court’s parole revocation order pursuant to Penal Code
section 3000.08, similar to a probation revocation order, is a postjudgment order affecting the
substantial rights of a defendant and therefore is appealable pursuant to section 1237, subdivision
(b). (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [order modifying terms of
probation is appealable because it affects the substantial rights of defendant].)


                                                4.
who has been detained for a parole violation is entitled to an informal probable cause
hearing and a final revocation hearing. (Id. at pp. 480, 485, 487.)
       The standard of proof required at a parole revocation hearing is a preponderance
of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) We review for
substantial evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.)
       The condition of parole at issue here states:

       “You shall not own, use, have access to, or have under your control: (a)
       any type of firearm or instrument or device which a reasonable person
       would believe to be capable of being used as a firearm or any ammunition
       which could be used in a firearm ….”
       Following the testimony given at the parole revocation hearings, and the argument
by counsel for the People and defendant, the court ruled as follows:

              “THE COURT: All right. Well, it’s real clear to me that the
       ammunition was not the defendant’s. But I find by more than a
       preponderance of the evidence that based upon the circumstantial evidence
       and especially the testimony of Officer Hunter and the defendant’s
       grandson that the defendant knew the ammunition was there. And,
       therefore, I—more than a preponderance of the evidence the Court finds
       that even though he did not own or possess it, he had access to it …. [¶] …
       [¶]

               “… I will find that by more than a preponderance of the evidence
       that the defendant was technically in violation of his parole and that he
       allowed himself to be in a situation where he could have access to
       ammunition.” (Italics added.)
       Assuming, as the trial court did, knowing access to the ammunition was required,
we find the court’s determination to be supported by substantial evidence.
       The People’s evidence established that two shotgun shells were located in a
kitchen cabinet during a search of the home defendant shared with his son for over two
years. The shells were immediately visible once the door to the cupboard or cabinet was
opened. Defendant’s evidence established his grandson had observed ammunition in a
kitchen cabinet during the period he had resided with his grandfather and uncle. The
ammunition Axel observed included bullets for a handgun. Thus, different types of


                                             5.
ammunition were present during defendant’s two-year stay. Moreover, there was
evidence defendant’s grandson saw his uncle, defendant’s son, carrying firearms in the
home. Another individual indicated defendant’s son was known to keep ammunition in
the home while living on Kings Avenue. Further, defendant testified he spent his days at
the home, doing his own cooking and cleaning. These facts taken together, and the
reasonable inferences drawn from them, establish both that defendant had knowledge of
and access to his son’s ammunition.
       And while defendant had previously expressed concern regarding the presence of
gang members in the apartment complex parking lot,4 he never requested assistance from
his parole officer regarding any conduct by his son that placed his own parole in
jeopardy. Neither did he inquire into nor seek assistance regarding a change of residence.
From this one can infer defendant was aware of the relevant conditions of his parole, but
was reluctant or had no wish to draw attention to his son’s illegal behavior by
complaining about that behavior. One might also infer defendant was complicit in his
son’s illegal conduct.
       In any event, it is and was reasonable to infer from this evidence, despite his direct
testimony to the contrary, that defendant had knowing access to the ammunition stored in
the kitchen cabinet or cupboard. (People v. Rodriguez, supra, 51 Cal.3d at p. 447; People
v. Superior Court (Jones), supra, 18 Cal.4th at p. 681.) The fact the cabinet was closed at
the time of the search, and that its contents included “nothing of importance just like
junk, stuff stacked in there,” does not change our conclusion. As a result, we find the
trial court’s determination to be supported by sufficient evidence.




       4Defendant’s parole terms also included the following conditions: “58. You shall not
contact or associate with any person you know or reasonably should know to be a member or
associate of a prison gang, disruptive group, or street gang” and “62. You shall not be within
100 yards of _____________, a known place of gang activity, loitering (delaying, lingering, or
idling abut), or congregating.”


                                               6.
                                 DISPOSITION
     The judgment is affirmed.
                                               __________________________
                                                                  PEÑA, J.
WE CONCUR:


 ________________________________
CORNELL, Acting P.J.


 ________________________________
FRANSON, J.




                                     7.
