P. v. Wilbur 4/30/07 CA1/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A113381A

Case Date: 07/12/2007

Preview:Filed 4/30/07 P. v. Wilbur CA1/3 Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. JOHN WILBUR, Defendant and Appellant. (Alameda County Super. Ct. No. H35143) A113381

John Wilbur appeals his convictions by a jury for transportation of methamphetamine, possession of 28.5 grams or more of methamphetamine for sale, possession of a firearm by a felon, and possession of ammunition by a felon. Wilbur argues that (1) the court erred when it denied his motion for judgment of acquittal on the firearm and ammunition counts, (2) his counsel was ineffective, (3) his sentence to concurrent terms violated Penal Code section 654,1 and (4) imposition of the upper term sentence for possession of methamphetamine violated his rights secured by the Sixth and Fourteenth Amendments because the sentence was based on factors not found by the jury. We remand for resentencing in accordance with Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham), and otherwise affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In October 2002, San Leandro Detective Jeff Tudor organized execution of a search warrant for defendant's person, vehicles, and residence. An officer stopped defendant's car, had defendant step out, and pulled up defendant's pant leg, when a "clear
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All further statutory references are to the Penal Code. 1

plastic baggie fell out to the ground." As another officer picked up the baggie, defendant said, " `[Y]ou guys got me, it was just a matter of time.' " Detective Tudor then conducted a search of defendant's residence, with the assistance of several other officers.2 The house had four bedrooms, and mail and other personal effects were found that indicated defendant lived in the room off the garage. In defendant's room, Tudor found 13.87 grams of methamphetamine, $6,411 in cash, and a digital scale.3 Defendant's room had one door that opened into the garage, and another door that led directly into the backyard. There were several freshly dug holes in the backyard. In two of the holes, police found plastic baggies of methamphetamine that weighed 102 grams and 85 grams. In another hole was a metal military style ammunition box containing four handguns. Three of them were loaded. It was not determined whether any of the weapons were registered. There was a locked safe in the garage adjoining defendant's room. Inside the safe, police found handgun ammunition compatible with the guns found in the backyard, six loaded handgun clips, a suspected pay-owe sheet, and vehicle registration cards and certificates of title to seven vehicles in defendant's name.4 There were also several plastic bags in the garage that were covered in dirt and appeared similar to those containing the methamphetamine found in the backyard. Defendant was charged with transportation of methamphetamine, possession for sale of 28.5 grams or more of methamphetamine, possession of a firearm by a

When police arrived to conduct the search, two people identified as Rodney Cupp and Roxanne Johnson were inside.
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A police scanner was also found in the living room.

The safe also contained an otherwise unidentified "very small piece of paper," a handwritten note saying that Staley Field sold defendant a 1986 Jaguar, and a vehicle certificate of title bearing the name John Clark. 2

felon, and possession of ammunition by a felon.5 His motion to suppress evidence was denied.6 His motion for judgment of acquittal on the firearm and ammunition charges was also denied. Defendant testified that he had lived at the San Leandro residence with Tim Hewitt and David Hawkins for approximately one year, but that he also stayed in Modesto, where he built motorcycles. He admitted that he lived in the room off the garage that the police suspected was his, and confirmed that its only means of entry or exit was through the garage or through the backyard. Defendant denied that he had ever seen the digital scale or the methamphetamine found in his room. He claimed the $6,411 in cash was from a neighbor who gave him an advance to install a motorcycle motor. Defendant acknowledged his access to the garage, but testified the safe belonged to Hewitt and that he did not know the combination. Defendant acknowledged the vehicle registration records in the safe were his, but denied having anything else in the safe and claimed he was unaware of its other contents. Hewitt testified that he had lived at the residence for three years before defendant moved in, that the safe in the garage belonged to him, not defendant, and he did not think defendant knew its combination. When asked about his possession of the methamphetamine and guns found in the backyard, Hewitt invoked the Fifth Amendment and refused to answer. Defendant testified that he had never seen anyone digging in the backyard, the baggies of methamphetamine and guns found in the backyard were not his, and he did not know they were there. Defendant admitted that he was a convicted felon who could not lawfully possess weapons. Defendant denied possession of anything illegal when his car was stopped, and said he was rhetorically answering an officer's question with a question when he said, "You got me." He testified that Detective Tudor was biased against him because The information also alleged a prior conviction for possession of a controlled substance for which defendant received probation. The court granted defendant's motion to return three vehicles he argued were seized illegally. 3
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defendant had an argument with one of Tudor's friends and because Tudor had a romantic interest in defendant's girlfriend. The jury returned a verdict of guilty on all counts. Defendant was denied probation and sentenced to the upper term of three years for possession for sale of methamphetamine, a consecutive term of eight months for possession of a firearm, and concurrent terms of two years each for transportation of methamphetamine and possession of ammunition. He timely appealed. DISCUSSION A. Motion for Judgment of Acquittal At the close of evidence, defendant moved for an acquittal pursuant to section 1118.1 on the counts charging possession of a firearm and possession of ammunition by a felon. Our job is to determine whether from the record, including reasonable inferences that may be drawn from the evidence, there is any substantial evidence to support each element of the charged offenses. (People v. Lines (1975) 13 Cal.3d 500, 505.) Specifically, defendant claims there was no evidence from which the jury could conclude that he knowingly possessed the guns and ammunition, or that he exercised dominion or control over them. Knowledge, and custody or control, are each elements of the charged offenses. (

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