Filed 6/13/14 P. v. Burkhart CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B248690
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA056490)
v.
RICHARD BYRON BURKHART,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa
Mangay Chung, Judge. Affirmed as modified with directions.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.,
Stephanie M. Myoshi and Connie H. Kan, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
A jury convicted defendant, Richard Byron Burkhart, of: two counts of
methamphetamine possession for sale (Health & Saf. Code, § 11378); one count of
methamphetamine transportation etc. (Health & Saf. Code, § 11379, subd. (a)); and one
count of billy possession. (Pen. Code,1 § 22210 .) Defendant admitted he had served
eight prior prison terms (§ 667.5, subd. (b)) and had a prior drug-related felony
conviction. (Health & Saf. Code, § 11370.2, subd. (c).) Defendant was sentenced to 18
years and 4 months in the county jail. We modify the judgment and affirm as modified.
II. THE EVIDENCE
On June 9, 2012, defendant was arrested for possession of 3.27 grams of powder
containing methamphetamine, a salable amount. Defendant did not appear to be under
the influence of a controlled substance at the time of his arrest. He appeared to be
completely sober. Nor was he in possession of any paraphernalia designed for controlled
substance use. Three “throwing knives” were within defendant’s reach in the passenger
compartment of the Suburban defendant was driving. An axe handle was attached by
bungee cords to the Suburban’s engine.
On September 5, 2012, Deputy Robert Gonzalez arrested defendant pursuant to a
warrant. Defendant was on a street known for narcotics use and sales. Defendant was in
possession of two baggies containing 0.04 and 1.35 grams of methamphetamine. These
were salable amounts. Defendant did not appear to be under the influence of controlled
substances. He appeared to be completely sober. He was not in possession of any
paraphernalia associated with controlled substance use. Defendant’s cellular telephone
contained text messages consistent with narcotics sales. Defendant admitted selling
illegal drugs, but denied receiving any money in return. Defendant said he acted as a
1 Further statutory references are to the Penal Code except where otherwise noted.
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middle man and was paid in methamphetamine. Defendant said he sold narcotics to
support his addiction. Notably, a controlled substance “sale” includes transfers for
noncash benefits. (People v. Harris (2000) 83 Cal.App.4th 371, 374; People v. Peck
(1996) 52 Cal.App.4th 351, 357; People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845.)
III. DISCUSSION
A. Defendant’s Evidence Suppression Motion
1. Evidence and standard of review
Defendant moved to suppress an axe handle found in the engine compartment of
the Suburban he was driving at the time of his June 9, 2012 arrest. (§ 1538.5.) The trial
court denied the motion. We apply the following standard of review: “‘Our review of
issues related to the suppression of evidence seized by the police is governed by federal
constitutional standards.’ (People v. Lenart (2004) 32 Cal.4th 1107, 1118; see Cal.
Const., art. I, § 28, subd. (f)(2).) ‘In reviewing a trial court’s ruling on a motion to
suppress evidence, we defer to that court’s factual findings, express or implied, if they are
supported by substantial evidence. [Citation.] We exercise our independent judgment in
determining whether, on the facts presented, the search or seizure was reasonable under
the Fourth Amendment.’ ([People v.] Lenart, [supra, 32 Cal.4th] at p. 1119.)” (Robey v.
Superior Court (2013) 56 Cal.4th 1218, 1223.)
The evidence adduced at the evidence suppression hearing was as follows.
Deputy Larry Pico had arrested defendant for controlled substance violations
approximately 10 times over a 6-year period. Deputy Pico was on patrol at midnight on
June 9, 2012. Deputy Pico’s cruiser passed a Suburban. Deputy Pico shone his spotlight
on the passing Suburban. Deputy Pico recognized defendant as the driver. Defendant
and Deputy Pico made eye contact. Deputy Pico assumed defendant was on probation.
Deputy Pico noted the Suburban’s license plate light was dim or out. Deputy Pico made
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a U-turn and initiated a traffic stop. Deputy Pico saw a plastic bag fly from the
Suburban’s driver’s window. Deputy Pico had seen suspects toss contraband from
vehicles more than five times. The maneuver raised Deputy Pico’s suspicion. The tossed
object was a plastic bag containing a substance resembling methamphetamine. Deputy
Pico arrested defendant. Deputy Pico then conducted a search of the Suburban. Deputy
District Attorney John Evans asked Deputy Pico, “Did [you do] a search of his Suburban
incident to the arrest based on what you had recovered in the investigation?” Deputy
Pico responded, “Yes, I did.” Deputy Pico recovered an axe handle from the engine
compartment. Deputy Pico referred to it as a billy club. The billy club had been strapped
to the engine with bungee cords.
2. Issues preserved for appeal
Defendant asserts any argument Deputy Pico had probable cause to believe the
Suburban contained contraband was forfeited by failure to raise it in the trial court. We
find no forfeiture. Defendant relies on Deputy Pico’s testimony at the suppression of
evidence hearing. Defendant’s counsel, Frederick McCurray, asked Deputy Pico, “Now,
you said you conducted a search incident to the arrest?” Deputy Pico answered, “Correct,
sir.” Mr. McCurray subsequently asked, “So as part of your search incident to arrest you
went and opened the hood of the vehicle?” Deputy Pico again answered, “Correct, sir.”
On direct examination, however, Mr. Evans asked Deputy Pico, “Did [you do] a search of
his vehicle incident to the arrest based on what you had recovered in the investigation?”
Deputy Pico responded, “Yes, I did.” (Italics added.) What Deputy Pico had recovered
was 3.27 grams of powder containing methamphetamine. Defendant had tossed the
methamphetamine from the Suburban. The trial court could reasonably infer the scope of
Deputy Pico’s search was governed by his belief additional contraband would be
discovered. In addition, Mr. Evans argued the recovered contraband permitted Deputy
Pico to search any area of the Suburban where narcotics might be found.
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Moreover, the question before the trial court was whether Deputy Pico’s actions
were objectively reasonable in light of the facts and circumstances confronting him.
(Scott v. United States (1978) 436 U.S. 128, 135-138; People v. Carrington (2009) 47
Cal.4th 145, 168; People v. Sanders (2003) 31 Cal.4th 318, 334.) Deputy Pico’s state of
mind was irrelevant to the inquiry. (Scott v. United States, supra, 436 U.S. at pp. 135-
138; People v. Carrington, supra, 47 Cal.4th at p. 168; People v. Sanders, supra, 31
Cal.4th at p. 334.) Therefore, we are not concerned with Deputy Pico’s subjective basis
for the search. We conclude, therefore, that the Attorney General is not precluded from
arguing that probable cause to search the engine compartment existed based on the
presence of contraband. (See People v. Williams (1999) 20 Cal.4th 119, 128.)
3. The search
We agree with the Attorney General that under the present facts, Deputy Pico had
probable cause to search the engine compartment. In Carroll v. United States (1925) 267
U.S. 132, 156, the United States Supreme Court upheld a warrantless search by
prohibition agents. The prohibition agents had probable cause to believe an automobile
contained contraband. In United States v. Ross (1982) 456 U.S. 798, 800 (Ross), the
United States Supreme Court addressed the scope of the search permissible under
Carroll. The high court considered the circumstance in which police officers legitimately
stop a vehicle and have probable cause to believe contraband is concealed somewhere
therein. The United States Supreme Court held: “[The police officers] may conduct a
probing search of the compartments and containers within the vehicle whose contents are
not in plain view. . . . [T]hey may conduct a search of the vehicle that is as thorough as a
magistrate could authorize in a warrant ‘particularly describing the place to be
searched.’” (Ibid., fn. omitted; see Robey v. Superior Court, supra, 56 Cal.4th at pp.
1230-1231.) This exception to the warrant requirement applies only to vehicle searches
supported by probable cause. (Ross, supra, 456 U.S. at p. 809 [“[Such] a search is not
unreasonable if based on facts that would justify the issuance of a warrant, even though a
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warrant has not actually been obtained.”].) Moreover, the scope of the search “is defined
by the object of the search and the places in which there is probable cause to believe”
evidence may be found. (Id. at p. 824.)
In Ross, the United States Supreme Court concluded its opinion with these words:
“We hold that the scope of the warrantless search authorized by [the present] exception is
no broader and no narrower than a magistrate could legitimately authorize by warrant. If
probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of
every part of the vehicle and its contents that may conceal the object of the search.”
(Ross, supra, 456 U.S. at p. 825.) Several California cases predating Ross upheld engine
compartment searches. (People v. Doherty (1967) 67 Cal.2d 9, 22; People v. Superior
Court (Gilbert) (1981) 116 Cal.App.3d 450, 454-455; People v. Mendez (1973) 35
Cal.App.3d 606, 609; People v. Green (1971) 15 Cal.App.3d 766, 771-774.) The United
States Supreme Court has subsequently affirmed the rule established in Ross. (Wyoming
v. Houghton (1999) 526 U.S. 295, 301; California v. Acevedo (1991) 500 U.S. 565, 570;
California v. Carney (1985) 471 U.S. 386, 394-395; U.S. v. Johns (1985) 469 U.S. 478,
483-488.)
In People v. Dey (2000) 84 Cal.App.4th 1318, 1320-1322, the Court of Appeal for
the Third Appellate District discussed Ross in connection with a truck search. The Court
of Appeal held discovery of a marijuana bud in a passenger compartment provided
probable cause to search the trunk. (Ibid.) Similarly, in Hall v. State (Fla.App. 1990)
562 So.2d 714, 714-715, the District Court of Appeal of Florida relied on Ross in
concluding police officers had probable cause to search a vehicle’s engine compartment.
In Hall, police officers discovered marijuana on the floorboard of a car during a weapons
search. The Florida appellate court concluded: “Once officers discovered marijuana on
the floorboard during their valid weapons search, they had probable cause to believe that
the vehicle contained contraband. This permitted them to search the entire vehicle,
including its trunk and engine compartment, under United States v. Ross, 456 U.S.
798 . . . .” (Hall v. State, supra, 562 So.2d at p. 714; see also United States v. Doe (E.D.
Tex. 1992) 801 F.Supp. 1562, 1575 [“If officers have probable cause to believe a car
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contains contraband, then they have the right to search all of the car, including the locked
trunk and engine compartment, and any container within it that could conceal the object
of search”]; State v. Torres (Conn.App. 1993) 625 A.2d 239, 243 [trial court concluded
police officers had probable cause to search Suburban’s engine compartment].)
Here, Deputy Pico knew defendant had been arrested repeatedly for controlled
substance violations. Deputy Pico assumed that defendant was on probation. This made
sense as Deputy Pico had repeatedly previously arrested defendant on drug violations.
After Deputy Pico initiated a traffic stop, he saw an item being tossed from the driver’s
window of the Suburban. The tossed item was a plastic bag containing 3.27 grams of
powder containing methamphetamine. These facts gave Deputy Pico probable cause to
believe the Suburban contained contraband and search the engine compartment for such
contraband. The trial court properly denied defendant’s motion to suppress the axe
handle. We need not discuss defendant’s remaining contentions.
B. Jury Instruction
1. Challenged instructions
Defendant was convicted in count 3 of billy possession in violation of section
22210. Section 22210 states, “[A]ny person in this state who . . . possesses . . . any
instrument or weapon of the kind commonly known as a billy . . . is punishable . . . .”
The jury was instructed that possession of a billy, as charged in count 3, required a
general criminal intent: “For you to find a person guilty of [that crime], that person must
not only commit the prohibited act, but must do so with wrongful intent. A person acts
with wrongful intent when he intentionally does a prohibited act; however, it is not
required that he intend to break the law.” (CALCRIM No. 252.) The jury was instructed
on illegal possession of a weapon in pertinent part as follows: “The defendant is charged
in Count 3 with unlawfully possessing a weapon, specifically a billy. To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant
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possessed a billy; [¶] 2. The defendant knew that he possessed the billy. [¶] AND [¶]
3. The defendant possessed the object as a weapon. When deciding whether the
defendant possessed the object as a weapon, consider all the surrounding circumstances
relating to that question, including when and where the object was possessed, where the
defendant was going, whether the object was changed from its standard form, and any
other evidence that indicates whether the object would be used for a dangerous, rather
than a harmless, purpose. [¶] The People do not have to prove that the defendant
intended to use the object as a weapon. . . .” (CALCRIM No. 2500, orig. italics.)
Defendant challenges the legal correctness of the jury instructions. Our review is
de novo. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Berryman (1993) 6
Cal.4th 1048, 1089, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800,
823, fn. 1.) We find no error. And because we find no error, there was no violation of
defendant’s due process or jury trial rights under the California or United States
Constitutions. (See People v. Foster (2010) 50 Cal.4th 1301, 1346-1348; People v.
Prince (2007) 40 Cal.4th 1179, 1282, fn. 25.)
2. Intent
Defendant contends it was error to instruct the jury in two respects concerning the
requisite mental state necessary to violate section 22210. First, defendant argues the jury
should not have been instructed it did not have to find defendant intended to use the billy
as a weapon. Second, defendant argues the jury should have been instructed he had to
have a specific intent to possess the club as a weapon. Defendant relies in part on
CALCRIM No. 2500, which states: “Give only [when the object is designed solely for
use as a weapon]. [¶] [The People do not have to prove that the defendant intended to
use the object as a weapon.]” (CALCRIM No. 2500 (2014 ed.) p. 344.) But the Bench
Notes to CALCRIM No. 2500 state: “Need Not Prove Intent to Use. People v.
Rubalcava (2000) 23 Cal.4th 322, 328 . . . ; People v. Grubb (1965) 63 Cal.2d 614, 620-
621, fn. 9 . . . .” (Bench Notes to CALCRIM No. 2500, supra, p. 346.) The Bench Notes
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also provide, “Innocent Object—Must Prove Possessed as Weapon. People v. Grubb[,
supra,] 63 Cal.2d [at pp.] 620-621 . . . ; People v. Fannin (2001) 91 Cal.App.4th 1399,
1404 . . . .” (Bench Notes to CALCRIM No. 2500, supra, p. 347.) And the Commentary
to CALCRIM No. 2500 explains: “‘Intent to use a weapon is not an element of the crime
of weapon possession.’ (People v. Fannin[, supra,] 91 Cal.App.4th [at p.] 1404 . . . .)
However, interpreting now-repealed Penal Code section 12020[, subdivision] (a)(4),
possession of a concealed dirk or dagger, [our] Supreme Court stated that ‘[a] defendant
who does not know that he is carrying the weapon or that the concealed instrument may
be used as a stabbing weapon is . . . not guilty of violation section 12020.’ (People v.
Rubalcava[, supra,] 23 Cal.4th [at pp.] 331-332 . . . Applying this holding to possession
of other weapons prohibited under now-repealed . . . section 12020[, subdivision] (a), the
courts have concluded that the defendant must know that the object is a weapon or may
be used as a weapon, or must possess the object ‘as a weapon.’ (People v. Gaitan (2001)
92 Cal.App.4th 540, 547 . . . ; People v. Taylor (2001) 93 Cal.App.4th 933, 941 . . . ;
People v. Fannin, supra, 91 Cal.App.4th at p. 1404 . . . .)” (Com. to CALCRIM No.
2500, supra, pp. 347-348.) CALCRIM No. 2500 and its notes as a whole are consistent
with our discussion in the following paragraph. Moreover, the CALCRIM instruction
and its notes are not themselves the law. (See People v. Morales (2001) 25 Cal.4th 34,
48, fn. 7 [jury instructions are not themselves the law]; Judicial Council of California
Criminal Jury Instructions, supra, Preface, p. xii [CALCRIM instructions based on the
law].)
Illegal weapon possession under section 22210 is a general intent crime. (People
v. Gaitan, supra, 92 Cal.App.4th at pp. 545-547 [former § 12020, metal knuckles
possession] ; cf. People v. Rubalcava, supra, 23 Cal.4th at p. 328 [former § 12020,
carrying a concealed dirk or dagger].) As the Court of Appeal for the Fourth Appellate
District explained in People v. Gaitan, supra, 92 Cal.App.4th at page 545: “‘“When[, as
here,] the definition of a crime consists of only the description of a particular act, without
reference to intent to do a further act or achieve a future consequence, we ask whether the
defendant intended to do the proscribed act. This intention is deemed to be a general
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criminal intent.”’” It is well established that defendant’s intent to use the billy as a
weapon is not an element of the crime. (People v. King (2006) 38 Cal.4th 617, 624-625;
People v. Grubb, supra, 63 Cal.2d at pp. 620-621, fn. 9; People v. Gaitan, supra, 92
Cal.App.4th at pp. 544-547; People v. Fannin, supra, 91 Cal.App.4th at p. 1404; People
v. Odegard (1962) 203 Cal.App.2d 427, 431, disapproved on other points in People v.
Superior Court (1972) 7 Cal.3d 186, 195, fn. 8, and Mozzetti v. Superior Court (1971) 4
Cal.3d 699, 703-705; People v. McKinney (1935) 9 Cal.App.2d 523, 525; People v.
Ferguson (1933) 129 Cal.App. 300, 303; cf. People v. Rubalcava, supra, 23 Cal.4th at p.
328; 17 Cal.Jur.3d Criminal Law: Crimes Against Administration of Justice, § 204.)
Rather, when the object is not a weapon per se, the prosecution must prove possession as
a weapon. (People v. Grubb, supra, 63 Cal.2d at pp. 620-621 [billy possession]; People
v. Fannin, supra, 91 Cal.App.4th at p. 1404 [slingshot possession].)
As our Supreme Court explained in People v. Grubb, supra, 63 Cal.2d at pages
620-621, “[T]he Legislature sought . . . to outlaw possession of the sometimes-useful
object when the attendant circumstances, including the time, place, destination of the
possessor, the alteration of the object from standard form, and other relevant facts
indicated that the possessor would use the object for a dangerous, not harmless, purpose.
(Cf. People v. Freeman (1927) 86 Cal.App. 374, 376.)” (Fn. omitted.) The Court of
Appeal for the First Appellate District similarly made clear in Fannin: “The only way to
[prove possession as a weapon] is by evidence ‘indicat[ing] that the possessor would use
the object for a dangerous, not harmless, purpose.’ ([People v.] Grubb, supra, 63 Cal.2d
at pp. 620-621, italics added.) The evidence may be circumstantial, and may be rebutted
by the defendant with evidence of ‘innocent usage.’ (Id. at p. 621.) The prosecution may
not, however, merely show that the defendant had a table leg in his car while driving
through a dangerous neighborhood, and require him to prove that he did not carry it as a
weapon. Such a rule would turn the presumption of innocence on its head. Intended use
is not an element of weapon possession, but the prosecution always bears the burden of
proving that the defendant possessed a weapon.” (People v. Fannin, supra, 91
Cal.App.4th at p. 1404; accord, People v. Davis (2013) 214 Cal.App.4th 1322, 1327.)
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The trial court did not err in instructing the jury it did not have to find defendant intended
to use the billy as a weapon. Nor was it error to fail to instruct the jury defendant had to
have a specific intent to possess the object as a weapon.
3. Failure to define “billy”
Defendant further contends it was error to not define “billy” for the jury. We
reject that assertion for the reasons stated in People v. Davis, supra, 214 Cal.App.4th at
page 1330: “[W]e find no error in instructing the jury pursuant to CALCRIM No. 2500
without adding a definition of a billy . . . Expert testimony may be admitted on the
question of whether an object falls within the definition of a prohibited object. (People v.
Deane (1968) 259 Cal.App.2d 82, 89 [superseded by statute on another point as stated in
In re David V. (2010) 48 Cal.4th 23, 26-27].)” In Davis, the opinion testimony came
from police officers. (People v. Davis, supra, 214 Cal.App.4th at p. 1330.) Here,
Detective Thomas Kim described the axe handle as a “club.” Detective Kim noted the
axe handle was an object that could be purchased at a hardware store. It was not
something that was advertised as a baton. Detective Kim carried a baton on patrol. It
was designed as a weapon. Its intended use was to subdue a suspect or arrestee. Officer
Pico testified he found “a large billy club or axe handle” in the Suburban’s engine
compartment. Officer Pico further testified an axe handle could be designed to be used as
a weapon. Officer Pico described an expandable baton he carried on patrol that was
designed for use if necessary to subdue suspects or arrestees. Officer Pico testified:
“Most drug dealers will keep weapons around. Most of the time it is firearms. In this
case, it was two different types of weapons. [Defendant] had throw knives easily
accessible to him in case he was going to get ripped off. He can defend himself or he just
use[s] it to collect money or drugs or whatever the case is. Same thing with the billy
club, it is used like an enforcer-type weapon --.” The foregoing was sufficient to support
a jury finding the axe handle was a “billy.” No jury instruction defining a billy was
required. (See People v. Davis, supra, 214 Cal.App.4th at p. 1330.)
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4. Harmless error
Even if the trial court had erred in instructing the jury, any error was harmless
under any standard of reversible error. (Chapman v. California (1968) 386 U.S. 18, 24;
People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence defendant possessed a billy
as a weapon and intended to use it as such was compelling. The jury viewed the axe
handle. Defendant was an admitted drug dealer who was arrested in an area known for
narcotics activity. Defendant was in possession of 3.27 grams of powder containing
methamphetamine. He had three throwing knives within reach in the passenger
compartment of the Suburban. The axe handle was hidden in the engine compartment
where it would not be discovered in the event of a routine traffic stop. The axe handle
was the type of weapon a drug dealer would use for defensive and enforcement purposes.
It was similar to the type of weapon law enforcement officers carry on patrol. There was
no evidence the axe handle, found strapped to the engine, was to be used for chopping
wood or other innocent activity. Defendant admitted he knew the axe handle was in the
engine compartment. Defendant explained that the axe handle was used to prop the hood
open. That explanation was implausible. Deputy Pico stated the hood was in working
order. It stayed up on its own for 15 to 20 minutes. And using the axe handle to prop the
hood open would be awkward. A person would have to lift the hood and hold it open
while untying the axe handle from the engine to free it for use as a propping mechanism.
We have reviewed exhibit No. 3 which depicts the axe handle tied down to the engine.
Given the foregoing evidence, any instructional error was harmless.
C. Sufficiency Of The Evidence
Defendant challenges the sufficiency of the evidence the axe handle was a billy
and that he intended to use the billy as a weapon. Our Supreme Court set forth the
applicable standard of review in People v. Barnes (1986) 42 Cal.3d 284, 303: “The
proper test to determine a claim of insufficient evidence in a criminal case is whether, on
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the entire record, a rational trier of fact could find [defendant] guilty beyond a reasonable
doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578; Jackson v. Virginia (1979)
443 U.S. 307, 318-319.) In making this determination, the appellate court ‘“must view
the evidence in a light most favorable to [the verdict] and presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.” [Citations.]” (Accord, People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
The present jury viewed the axe handle and heard testimony as to its uses. We
have reviewed the photograph of the axe handle tied to the engine. Defendant was an
admitted drug dealer. Defendant was in a high narcotic activity area on June 9, 2012,
when he was arrested. His nickname was “Travieso,” meaning “a pain in the ass,” or
“trouble.” Drug dealers keep weapons on hand for defensive and enforcement purposes.
The axe handle was an object that could be used by a drug dealer for those purposes. A
billy was commonly used for enforcement. Detective Kim testified he carried a similar
weapon—a baton—on patrol. The baton was department issued and designed as a
weapon. Officer Pico described a similar object—an expandable baton—that he carried
on patrol. Officer Pico’s baton was designed for use to subdue suspects or arrestees. The
“large billy club or axe handle” was strapped to the engine of the Suburban defendant
was driving as he tossed methamphetamine out the window. Putting the axe handle in the
engine compartment served to avoid its discovery during a routine traffic stop.
Moreover, on June 9, 2012, when defendant was stopped for a traffic violation, he had
other weapons at his disposal. Defendant claimed the axe handle was strapped to the
engine for use to prop the hood open. Officer Pico testified the Suburban’s hood stayed
up on its own; it had remained open for 10 to 15 minutes without needing to be propped
up. This was substantial evidence the axe handle was a billy which defendant intended to
use as a weapon. (See People v. Davis, supra, 214 Cal.App.4th at pp. 1327-1329; see
also People v. King, supra, 38 Cal.4th at p. 624; People v. Grubb, supra, 63 Cal.2d at p.
621.)
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D. Sentencing
The trial court imposed a single $50 criminal laboratory analysis fee (Health &
Saf. Code, § 11372.5, subdivision (a)) plus assessments and a surcharge. The trial court
should have imposed a $50 criminal laboratory analysis fee plus assessments and a
surcharge on two unstayed counts, counts 1 and 4. (People v. Sharret (2011) 191
Cal.App.4th 859, 863; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1416.) As to
count 2, the trial court should have imposed and then stayed the fee and assessments
under section 654, subdivision (a). (People v. Sharret, supra, 191 Cal.App.4th at pp.
869-870.) The judgment must be modified to so provide. (People v. Sharret, supra, 191
Cal.App.4th at p. 870; People v. Turner, supra, 96 Cal.App.4th at p. 1417.) In addition,
imposition of the criminal laboratory analysis fee was not reflected in the abstract of
judgment. The abstract of judgment must be amended to reflect the fees, assessments and
surcharges. (People v. Jones (2012) 54 Cal.4th 1, 89; People v. Martinez (1998) 65
Cal.App.4th 1511, 1523-1524.)
Defendant was arrested on June 9, 2012. He remained in custody for 38 days until
he was released on bail, on July 16, 2012. Defendant was rearrested on September 5,
2012. He was sentenced 213 days later, on April 5, 2013. Defendant received credit for
252 days in custody plus 252 days of conduct credit. However, he was confined for a
total of only 251 days. The judgment must be modified and the abstract of judgment
amended to reflect 251 days of custody credit and 250 days of conduct credit for a total
of 501 days. (People v. Miles (2013) 220 Cal.App.4th 432, 437; People v. Donan (2004)
117 Cal.App.4th 784, 792-793.)
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IV. DISPOSITION
The judgment is modified to impose a $50 criminal laboratory analysis fee (Health
& Saf. Code, § 11372.5, subd. (a)) plus penalties and surcharges on counts 1, 2 and 4.
The fee, penalties and surcharge are to be stayed as to count 2. (Pen. Code, § 654, subd.
(a).) The judgment is further modified to award defendant 251 days of presentence
custody credit and 250 days of conduct credit for a total credit of 501 days. The
judgment is affirmed in all other respects. Upon remittitur issuance, the clerk of the
superior court must amend the abstract of judgment to reflect the foregoing and deliver a
copy to the Los Angeles County Sheriff.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
MOSK, J.
KRIEGLER, J.
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