Filed 8/21/14 P. v. Holland 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----



THE PEOPLE,                                                                                  C073483

                   Plaintiff and Respondent,                                      (Super. Ct. No. 11F6380)

         v.

PAUL LEN HOLLAND,

                   Defendant and Appellant.




         A jury convicted defendant Paul Len Holland of possession of an assault weapon.
(Pen. Code, former § 12280, subd. (b).)1 The trial court suspended imposition of
sentence and placed defendant on three years’ formal probation with 120 days in county
jail and one day of presentence credit.
         On appeal, defendant contends (1) there was insufficient evidence that defendant
knew the weapon was an assault rifle to support the conviction, (2) the trial court’s




1   Undesignated statutory references are to the Penal Code.

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instruction on possession of an assault rifle violated his right to have the jury determine
each element of the offense, (3) it was an abuse of discretion to admit evidence of
uncharged misconduct, and (4) the probation conditions regarding the use of controlled
substances were not reasonably related to his offense. We affirm.
                                FACTUAL BACKGROUND
          On August 18, 2011, Department of Justice Special Agent Matthew Badgley
participated in a multi-agency execution of a federal search warrant for marijuana
cultivation and distribution on defendant’s split parcel of land in Redding. There were
numerous growing areas throughout the property. The marijuana plants were about 50 to
80 yards away and not visible from the main residence.
          Agent Badgley entered the main residence and saw defendant walking out of a
bedroom. He ordered defendant to the ground in preparation for a search of the bedroom.
Agent Badgley asked defendant, “Is there anything in this room you don’t want me to
find? Or is there anything in this room that is going to get you in trouble?” Defendant
replied there was a rifle behind the door and said, “I know if there is anything I would get
in trouble for, it was that gun.” He also said that he “was getting ready to take it out of
state.”
          An unregistered AK-47 assault rifle was found behind the bedroom door. It had a
pistol grip; a loaded, detachable 30-round magazine inserted into the weapon; and a flash
suppressor attached to the barrel. The pistol grip and flash suppressor placed the weapon
within the meaning of California’s assault rifle ban. The AK-47 was subsequently test
fired and found to be operational.
          Michael H., defendant’s neighbor, testified for the defense. He described himself
as a “gun person.” When Josh Whites rented a room from defendant, Michael, who was
15 years old at the time, saw the AK-47 in the back seat of Whites’s car as he helped
move Whites in. Michael would not carry the weapon into the house because he knew it
was illegal.

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                                      DISCUSSION
                                              I
       Defendant contends there is insufficient evidence that he knew the AK-47 was an
illegal assault weapon.
       Former section 12280, subdivision (b) provides, in pertinent part: “Any person
who, within this state, possesses any assault weapon, except as provided in this chapter,
shall be punished by imprisonment in a county jail for a period not exceeding one year, or
by imprisonment in the state prison.”2 An assault weapon is defined as including “[a]ll
AK series including, but not limited to . . . [¶] . . . AK47” (former § 12276,
subd. (a)(1)(A))3 and “[a] semiautomatic, centerfire rifle that has the capacity to accept a
detachable magazine” and a thumbhole stock, folding or telescoping stock, grenade or
flare launcher, flash suppressor, or forward pistol grip (former § 12276.1,
subd. (a)(1)(A)-(F)).4 “In a prosecution under section 12280[, subdivision] (b), that is to
say, the People bear the burden of proving the defendant knew or reasonably should have
known the firearm possessed the characteristics bringing it within the” statutory
definition of proscribed assault weapon. (In re Jorge M. (2000) 23 Cal. 4th 866, 887
(Jorge M.), italics omitted.)




2 After defendant’s crime, former section 12280, subdivision (b) was repealed and
reenacted without substantive change as section 30605. (Stats. 2010, ch. 711, § 4
[repealing Pen. Code § 12280]; Stats. 2010, ch. 711, § 6 [adding Pen. Code § 30605].)
3 After defendant’s crime, former section 12276, subdivision (a) was repealed and
reenacted without substantive change in section 30510. (Stats. 2010, ch. 711, § 4
[repealing Pen. Code § 12276]; Stats. 2010, ch. 711, § 6 [adding Pen. Code § 30510].)
4 After defendant’s crime, former section 12276.1, subdivisions (a) through (c) were
repealed and reenacted without substantive change as section 30515. (Stats. 2010,
ch. 711, § 4 [repealing Pen. Code § 12276.1]; Stats. 2010, ch. 711, § 6 [adding Pen. Code
§ 30515].)

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       On appeal, “[t]o determine whether the prosecution has introduced sufficient
evidence to meet [the reasonable doubt] burden, courts apply the ‘substantial evidence’
test. Under this standard, the court ‘must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial evidence–
that is, evidence which is reasonable, credible, and of solid value–such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] The
focus of the substantial evidence test is on the whole record of evidence presented to the
trier of fact, rather than on ‘ “isolated bits of evidence.” ’ [Citation.]” (People v. Cuevas
(1995) 12 Cal.4th 252, 260-261, italics omitted.)
       “[T]he Legislature presumably did not intend the possessor of an assault weapon
to be exempt from the [Assault Weapon Control Act’s] strictures merely because the
possessor did not trouble to acquaint himself or herself with the gun’s salient
characteristics. Generally speaking, a person who has had substantial and unhindered
possession of a semiautomatic firearm reasonably would be expected to know whether or
not it is of a make or model listed in [former] section 12276 or has the clearly discernable
features described in [former] section 12276.1. At the same time, any duty of reasonable
inquiry must be measured by the circumstances of possession; one who was in possession
for only a short time, or whose possession was merely constructive, and only secondary
to that of other joint possessors, may have a viable argument for reasonable doubt as to
whether he or she either knew or reasonably should have known the firearm’s
characteristics.” (Jorge M., supra, 23 Cal.4th at p. 888.)
       Defendant distinguishes the facts in this case from other decisions finding
sufficient evidence of the mens rea for possession of an assault weapon. (See Jorge M.,
supra, 23 Cal.4th at p. 888 [“ ‘Russia SKS-45’ ” printed or engraved on weapon];
People v. Nguyen (2013) 212 Cal.App.4th 1311, 1316 (Nguyen) [defendant had box
containing parts necessary to build an AK-47, purchased from, among others, “AK-
Builder.com”].) He claims defendant’s statement to Agent Badgley may have shown he

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knew the firearm was illegal in California, but not that it was an assault weapon. Since
there was no evidence of how the firearm was procured or that defendant knew it was an
AK-47, defendant concludes there was insufficient evidence of mens rea to support his
conviction.
         “We could not disagree more.” (Nguyen, supra, 212 Cal.App.4th at p. 1324.)
Defendant’s statements to Agent Badgley identifying the AK-47 behind the door as the
weapon that was going to get him in trouble and that he had intended to move it out of
state support an inference that he was familiar with the weapon and knew of its illegal
nature, and therefore “had substantial and unhindered possession” of the weapon,
sufficient to support a finding that he knew or reasonably should have known it was on
the list of proscribed assault weapons.
                                                II
         Defendant contends the trial court’s instruction on the elements of possession of
an assault rifle violated his right to due process.
         The trial court instructed the jury on possession of an assault rifle as follows:
         “The defendant is charged with unlawfully possessing an assault weapon,
specifically an AK-47 Assault Rifle, in violation of section 12280[, subdivision (b)] of
the Penal Code.
         “To prove that the defendant is guilty of this crime, the People must prove that:
         “1. The defendant possessed an assault weapon, specifically an AK-47 Assault
Rifle.
         “2. The defendant knew that he possessed it;
         “and
         “3. The defendant knew or reasonably should have known that it had
characteristics that made it an assault weapon.
         “An Assault weapon means the following designated semiautomatic firearms:



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       “All of the following specific rifles: All AK-47 series, including, but not limited
to, the models identified as
       “(A) Made in China AK, AKM, AKS, AK47, AK475, 56, 56S, 84S, and 86S.
       “(B) Norinco 56, 56S, 84S and 86S.
       “(C) Poly Technologies AKS and AK47.
       “(D) MAADI AK47 and ARM.
       “ ‘Series,’ as used in this instruction includes all other models, that are only
variations, with minor differences, of those models listed above, regardless of the
manufacturer.
       “An ‘assault weapon’ also means any of the following:
       “A centerfire rifle that has the capacity to accept a detachable magazine and any
one of the following:
       “1. A pistol grip that protrudes conspicuously beneath the action of the weapon;
       “2. A thumbhole stock;
       “3. A folding or telescoping stock;
       “4. A grenade launcher or flare launcher;
       “5. A flash suppressor;
       “6. A forward pistol grip.”
       Defendant contends the language in the first paragraph, “the People must prove
that: [¶] 1. The defendant possessed an assault weapon, specifically an AK-47 Assault
Rifle,” violates his right to due process by relieving the People’s burden of proving that
the weapon was in fact an assault rifle.
       Defendant is wrong. As previously noted, an AK-47 is an assault rifle under
California law. (See former § 12276, subd. (a)(1)(A) [“[a]ll AK series including, but not
limited to . . . [¶] . . . AK47” are assault rifles].) The jury was instructed that the People
had to prove beyond a reasonable doubt that defendant possessed an assault rifle, and that



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an AK-47 is an assault rifle. This correctly stated the element of the offense in question
and the People’s burden of proving it.
                                            III
       Defendant asserts it was an abuse of discretion to admit, over his objection,
evidence of the cultivation and possession of marijuana on his property.
       Evidence Code section 1101, subdivision (b) permits admission of uncharged
misconduct when the evidence is relevant to establish some fact other than the
defendant’s character, such as motive, intent, plan, knowledge, or absence of mistake.
(People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
       “ ‘The trial court judge has the discretion to admit such evidence after weighing
the probative value against the prejudicial effect. [Citation.] When reviewing the
admission of evidence of other offenses, a court must consider: (1) the materiality of the
fact to be proved or disproved, (2) the probative value of the other crime evidence to
prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion
even if the evidence is relevant. [Citation.]’ ” (People v. Butler (2005) 127 Cal.App.4th
49, 60.)
       We review the trial court’s decision to admit uncharged misconduct evidence for
abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) A trial court’s
exercise of its discretion under [Evidence Code] section 352 “ ‘ “must not be disturbed on
appeal except on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”
[Citations.]’ [Citation.]” (People v. Brown (2000) 77 Cal.App.4th 1324, 1337, italics
omitted.)
       The trial court admitted the evidence regarding the marijuana operation on
defendant’s property as evidence of defendant’s motive to possess an assault rifle.
Defendant argues the court did not apply the proper balancing test and the evidence was



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not relevant to the only “facts in dispute, namely whether [defendant] knew the firearm
he possessed had the characteristics of an assault weapon.”
       While defense counsel argued in closing that whether defendant had the necessary
mens rea was the “real issue” in the case, defendant did not stipulate to possessing the
AK-47 and presented evidence that the weapon was brought onto his property by a third
party, his tenant. People dealing in illegal drugs often carry firearms. (People v. Glaser
(1995) 11 Cal.4th 354, 367-368.) The presence of a marijuana growing operation on
defendant’s property thus tends to prove a motive for possessing a firearm. This motive,
in turn, supports an inference that defendant had a particular interest in having a more
powerful firearm, like an assault rifle, and that he therefore knew the weapon was in fact
the illegal and comparatively powerful AK-47. (See United States v. Stokes (1st Cir.
2004) 388 F.3d 21, 30 [upholding district court finding that the particular AK-47 and
ammunition were “ ‘extraordinarily dangerous’ ”].)
       Assuming the evidence was admitted in error, the error is harmless. As noted, the
weapon was an assault rifle as a matter of law. Defendant’s statements that the weapon
would get him into trouble and that he meant to take the firearm out of state clearly show
he knew it was an illegal assault rifle. It is not reasonably probable defendant would
have obtained a more favorable result had the evidence been excluded. (Evid. Code,
§ 353; People v. Watson (1956) 46 Cal.2d 818, 836.)
                                            IV
       Defendant’s final contention is that the probation conditions related to his use of
controlled substances should be stricken because they are not reasonably related to his
crime. We disagree.
       Among the probation conditions imposed by the trial court were the following:
       “11. That he not use or possess any controlled substances unless prescribed by a
physician and that any prescriptions be immediately reported by the defendant to the
Probation Officer; [and]

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       “12. That he submit his person to chemical testing at any time at the request of
any peace officer or Probation Officer, and that he do nothing that would interfere with
the accuracy of the test.”
       Defendant objected to the conditions at sentencing, arguing this is a weapons
possession rather than a substance abuse case. On appeal, he argues that being a user of
marijuana is by itself insufficient grounds to impose drug testing pursuant to Health and
Safety Code sections 11551 and 11552. (Health & Saf. Code, § 11553.) He asserts he
had a prescription for marijuana, the legal use and growing of marijuana is not associated
with his offense, and his use of marijuana is not associated with any future criminality.
From this, defendant concludes the probation conditions were improper.
       The trial court has substantial discretion to impose conditions of probation,
including drug testing and rehabilitation. “[C]ourts have broad discretion to impose
[probation] conditions to foster rehabilitation and to protect public safety pursuant to
Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) “A
condition of probation will not be held invalid unless it ‘(1) has no relationship to the
crime of which the offender was convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not reasonably related to future
criminality . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486.)
       The probation report stated that defendant had a “limited history of poly-substance
abuse.” He obtained a medical marijuana recommendation for a back injury three years
before sentencing. He was initially prescribed Oxycodone but did not like how it made
him feel. The report concluded that defendant did “not appear to have any substance
abuse issues that are causing any problems in his life.”
       While defendant was not charged with any drug offenses, the AK-47 was found
during the execution of a federal search warrant by officers from state and federal
agencies on the marijuana growing operation that existed on his property. Defendant



                                              9
may have had a medical marijuana prescription, but there is no evidence that he had any
state authorization to grow medical marijuana on his property.
       The probation conditions do not prevent defendant from taking legally prescribed
medical marijuana or any other legal use of a controlled substance. They prohibit him
from only the illegal use of controlled substances. Given the evidence of the potentially
illegal growing of marijuana on his property, and the growing operation as a motive for
his illegally possessing a firearm, the drug conditions have a relationship to defendant’s
crime, do not prohibit legal conduct, and are related to deterring future criminality. It
was not an abuse of discretion to impose the drug conditions.5
                                      DISPOSITION
       The judgment is affirmed.



                                                            RAYE               , P. J.



We concur:



         HULL               , J.



         MAURO              , J.


5 Defendant’s reliance on Health and Safety Code section 11553, which provides “[t]he
fact that a person is or has been, or is suspected of being, a user of marijuana is not alone
sufficient grounds upon which to invoke [Health and Safety Code S]ection 11551 or
11552,” is unavailing. Health and Safety Code sections 11551 and 11552 address testing
conducted by a physician or a city or county health officer; since the testing here is not
conducted by such officials, it is irrelevant to the probation condition. (People v. Shimek
(1988) 205 Cal.App.3d 340, 343.)

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