Filed 12/2/14 P. v. Parent CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060736

v.                                                                       (Super.Ct.No. RIC1208846)

ANTONIO PARENT,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed.

         James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, Charles C. Ragland, and Teresa Torreblanca, Deputy Attorneys General, for

Plaintiff and Respondent.




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                                             I

                                    INTRODUCTION

       On October 25, 2012, a felony complaint, case No. RIF1208846, charged

defendant and appellant Antonio Parent with corporal injury on a spouse or former

spouse under Penal Code1 273.5, subdivision (a) (count 1); making a criminal threat

under section 422 (count 2); and dissuading a witness under section 136.1, subdivision

(c) (count 3). On November 5, 2012, defendant pled guilty to count 2, in exchange for a

two-year suspended prison sentence and formal probation. The court granted defendant

formal probation for a period of 36 months. Some of the terms of defendant’s probation

required defendant to obey all laws, and not knowingly possess or have immediate access

to firearms, weapons or ammunition.

       On February 27, 2013, the People filed a petition to revoke defendant’s probation,

alleging that he violated the terms of his probation by possessing ammunition under

section 30305, subdivision (a).

       On November 15, 2013, the People filed a misdemeanor complaint, case No.

RIF1208846, charging defendant with being under the influence of a controlled substance

under Health and Safety Code section 11550, subdivision (a). The People also alleged

that, as a result of the new charge, defendant was in violation of his probation in case No.

RIF1208846.


       1      All statutory references are to the Penal Code unless otherwise specified.

                                             2
       On March 4, 2014, the trial court held a probation revocation hearing and found

that defendant violated the terms of his probation by possessing ammunition.2 The court

then ordered the previously suspended two-year prison sentence to take effect.

       On March 6, 2014, defendant filed a notice of appeal. On appeal, defendant

contends that the trial court abused its discretion in revoking defendant’s probation

because he did not have possession of ammunition. For the reasons set forth below, we

shall affirm the trial court’s revocation of defendant’s probation.

                                             II

                               STATEMENT OF FACTS

       On January 4, 2013, probation officers conducted a compliance check of

defendant’s home and found two boxes of ammunition in a dresser drawer of the

bedroom that defendant shared with his girlfriend. Defendant admitted that he knew the

ammunition was there.




       2      Although the record is not clear, it appears that the prosecutor chose not to
pursue the allegation that defendant violated probation by being under the possession of a
controlled substance, as charged in case No. RIF1208846.

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                                            III

                                       ANALYSIS

       A. The Trial Court Properly Revoked Defendant’s Probation

       Defendant contends that the trial court erred in revoking defendant’s probation

based on its finding that defendant constructively possessed ammunition in violation of

section 30305, subdivision (a).

       1. Background

       On January 4, 2013, Riverside County Probation Officer Guillermo Urquiza

conducted a probation search of defendant’s house. Several other law enforcement

officers assisted Officer Urquiza in the search, including Riverside District Attorney

Investigator Robert Kwan. While the assisting officers searched the home, Officer

Urquiza remained in the living room with defendant and Nora Limon, the other occupant

of the home. During casual conversation, defendant told the officer that he and Limon

had been living together in the home for about two years and shared the master bedroom.

       Investigator Kwan searched the master bedroom. In one of the dressers, he found

two boxes of .380 caliber ammunition in separate unlocked drawers. Investigator Kwan

went over to Officer Urquiza, who was still waiting with defendant and Limon in the

living room. Investigator Kwan told Officer Urquiza what the investigator found. When

Officer Urquiza asked defendant whether he knew there was ammunition in the bedroom,

he confirmed that he did.

       Limon testified that she was defendant’s girlfriend. She stated that she and

defendant shared the same home she had resided in with her late husband, who kept a

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number of guns. When her husband died, Limon got rid of all his guns, with the

exception of a Bersa .380 caliber pistol, which she stored in a dresser drawer in her

bedroom. Limon kept ammunition for the gun in the same drawer.

       When defendant moved in, they agreed to share one of the dressers in the

bedroom; she used the left side and he used the right side of the dresser. Limon admitted

telling defendant that she kept a gun and ammunition in her drawer. In November 2012,

she pawned the gun because she knew defendant could not have a weapon at his disposal.

She, however, kept the ammunition and continued to store it in her dresser drawer.

Limon did not know if defendant had ever looked in her drawers, but affirmed that he had

access to the bedroom and was free to come and go into the room as he pleased.

Moreover, on numerous occasions, defendant had free reign of the house when she was

not there.

       2. Standard of review

       “Trial courts are granted great discretion in deciding whether or not to revoke

probation. [Citation.]” (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) Section

1203.2, subdivision (a) states, in relevant part, “the court may revoke and terminate

[probation] if the interests of justice so require and the court, in its judgment, has reason

to believe from the report of the probation officer or otherwise that the person has

violated any of the conditions of his or her [probation] . . . .” Subdivision (c) of that

section provides, in relevant part: “Upon any revocation and termination of probation the

court may, if the sentence has been suspended, pronounce judgment for any time within

the longest period for which the person might have been sentenced.” At a probation

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revocation hearing, proof of facts supporting the revocation of probation may be made by

a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.)

“[O]nly in a very extreme case should [a reviewing] court interfere with the discretion of

the trial court in the matter of . . . revoking probation.” (Id. at p. 443.) A trial court’s

determination should not be disturbed on appeal absent “a showing of abusive or

arbitrary action. [Citations.]” (People v. Urke (2011) 197 Cal.App.4th 766, 773.) “[T]he

burden of demonstrating an abuse of the trial court’s discretion rests squarely on the

defendant. [Citation.]” (Ibid.)

       3. Defendant had constructive possession of the ammunition

       Section 30305, subdivision (a)(1), makes it illegal for any person convicted of a

felony to possess ammunition. (§ 30305, subd. (a)(1).) Possession may be either actual

or constructive, and more than one person may possess the same item. (In re Daniel G.

(2004) 120 Cal.App.4th 824, 831.)

       A defendant has actual possession when the prohibited item “is in his immediate

possession or control.” (People v. Pena (1999) 74 Cal.App.4th 1078, 1083, italics

added.) By contrast, constructive possession exists where a defendant knowingly

controls or maintains the right to control the prohibited item, either directly or through

another person. (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 539; Pena,

supra, at pp. 1083-1084; People v. Mejia (1999) 72 Cal.App.4th 1269, 1272.)

Constructive possession of a prohibited item may also be established where a defendant

is found to have the right to exercise dominion and control over the place where it is



                                               6
found. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Exclusive possession of

the premises is not required. (People v. Kortopates (1968) 264 Cal.App.2d 176, 180.)

       In this case, law enforcement officers found two boxes of ammunition in the

bedroom defendant shared with Limon. Defendant lived, slept, and kept his belongings

at this residence for several years; it was reasonable for the trial court to infer that

defendant had dominion and control over the dresser and ammunition inside, even though

he was not the sole occupant in the bedroom. (See People v. Jenkins (1979) 91

Cal.App.3d 579, 584 [inference of dominion and control is easily made when contraband

is found in the residence]. Moreover, joint occupancy of the place where contraband is

found lends support to an inferential showing of constructive possession. (People v. Poe

(1958) 164 Cal.App.2d 514, 516.)

       Notwithstanding, defendant argues that he never exercised dominion and control

over the ammunition because there is no evidence that he ever looked at it, touched it, or

even knew where it was stored. Defendant’s argument lacks merit because when the

police found the ammunition, he admitted that he knew it was in the bedroom that he

shared with Limon, and more specifically, that he knew it was in the dresser drawer.

       Moreover, defendant contends that Limon was the only person who exercised

dominion and control over the ammunition because the two boxes were in her drawers,

on the left side of the dresser. We agree with the trial court’s assessment of the case that

“[t]here was nothing stopping him from going in that drawer and doing whatever he

wanted to do with the ammo.” Here, no measures had been taken to limit defendant’s

access to any of the drawers. Therefore, it was reasonable for the trial court to believe

                                               7
that defendant and Limon exercised joint dominion and control over the dresser. (See

People v. Roberts (1964) 228 Cal.App.2d 722, 726 [“the fact that other persons had

access to the premises in which the [contraband] was found does not negative a finding of

joint possession and control.”].)

       We further note that Limon testified that she had previously kept a firearm in the

same drawer as the ammunition and defendant knew she kept it there. Limon, however,

explained that she pawned the firearm because she knew it was a violation of defendant’s

probation to have a weapon “at his disposal.” As the trial court observed, if Limon

believed that the firearm in her drawer was at defendant’s disposal, then the ammunition

kept in the same drawer was equally at defendant’s disposal.

       Rushing, supra, 209 Cal.App.3d 618, is instructive on the issue of contraband

found in a shared home. In Rushing, police searched a two-bedroom apartment occupied

by defendant and three others. In one of the bedrooms, police discovered cocaine hidden

in the false bottom of a WD-40 can. In a desk in that same room, police discovered court

documents containing the defendant’s name and signature. The defendant was sleeping

in the other room where police found more court documents with the defendant’s name

and signature along with sheets of paper that police believed to be a ledger to record drug

sales. One of the entries corresponded with the amount of cocaine found in the WD-40

can. (Id.at p. 620.) The court explained that the evidence showed the defendant had

access to private areas of the house (i.e., areas generally considered to be the dominion of

persons with possessory rights) and left important documents in these locations that

provided sufficient evidence that he had the right to exercise dominion and control over

                                             8
the apartment where the cocaine was stored. (Id. at p. 622.) The sheets of paper

provided further evidence of the defendant’s dominion and control over the contraband

itself. (Ibid.)

        The facts in this case are stronger than the facts in Rushing, supra, 209 Cal.App.3d

618, to show that defendant had dominion and control over the ammunition. Here,

defendant shared the home with only one other person, slept in the bedroom where the

ammunition was found, and used multiple drawers of the dresser to store his clothes and

belongings. Defendant admitted that he knew the ammunition was in the dresser, had

unfettered access to the bedroom, and had full reign over the entire house in Limon’s

absence. Therefore, as in Rushing, the trial court’s finding, that defendant had dominion

and control over the location where ammunition was found, is supported by substantial

evidence.

        Defendant cites to People v. Zyduck (1969) 270 Cal.App.2d 334, People v. Martin

(1973) 9 Cal.3d 687, and People v. Myles (1975) 50 Cal.App.3d 423, to support his

argument that possession cannot be inferred merely because he shared a room in which

the ammunition was found. Defendant’s reliance on these cases is misplaced because the

facts of those cases are distinguishable. In each of those cases, a defendant was charged

with possession of stolen property after police stopped a car in which the defendant was a

passenger, and discovered stolen items inside. (Ibid.) In each case, the respective courts

held that the mere presence of a non-owner passenger in a car is insufficient to establish

that the defendant was “in possession” of the stolen property. (Ibid.) The facts in this

case are different. Here, defendant was not merely present at the home when the

                                              9
ammunition was found. Instead, defendant lived at the residence. Unlike the non-owner

passengers in the car, defendant had a right to exercise dominion and control over items

in his bedroom, including the ammunition, because it is an area “generally considered to

be the domain of persons with possessory rights.” (Rushing, supra, 209 Cal.App.3d at p.

622.)

        Moreover, defendant argues that the trial court abused its discretion because it

misunderstood the law of possession, believing that defendant’s knowledge of and access

to the ammunition was sufficient to show possession. Again, defendant’s argument has

no merit. In support of his argument, defendant continues to rely on People v. Martin,

supra, 9 Cal.3d 687, and People v. Zyduck, supra, 270 Cal.App.2d 334. However, as

discussed above, the cases do not apply to this case because the facts in our case are

distinguishable. Moreover, defendant fails to acknowledge that the California Supreme

Court has long held possession to be a right not exclusive to one individual, but may be

imputed through joint dominion and control. (People v. Williams (1971) 5 Cal.3d 211,

215.) Where, as here, a court has evidence that a defendant knows of the contraband and

exercises joint dominion and control over the place where it is found, possession is

established. (See Rushing, supra, 209 Cal.App.3d 618.)

        In view of the totality of the circumstances and the above stated legal principles,

we find sufficient evidence was presented at trial for a rational trier of fact to reasonably

infer that defendant knowingly exercised control or the right to control the ammunition

and therefore constructively possessed it.



                                              10
                                     IV

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                               RICHLI
                                                        J.

We concur:


HOLLENHORST
          Acting P. J.


CODRINGTON
                       J.




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