Filed 5/25/21 P. v. Baird CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306344
(Super. Ct. No. 2018018858)
Plaintiff and Respondent, (Ventura County)
v.
JACOB J. BAIRD,
Defendant and Appellant.
Jacob J. Baird appeals from the judgment after the
jury convicted him of six counts of owning, possessing or
controlling a firearm in violation of a term of probation (Pen.
Code,1 § 29815, subd. (a)), one count of owning, possessing or
controlling ammunition in violation of a term of probation
(§ 30305, subd. (a)(1)), and a misdemeanor violation of carrying a
loaded firearm in public (§ 25850, subd. (a)). The trial court
placed him on formal probation for 36 months with various terms
1 Unless
otherwise noted, all subsequent statutory
references are to the Penal Code.
and conditions including that he serve 180 days in the county jail.
Baird contends: (1) there is no substantial evidence
he was subject to a probation firearm prohibition, and (2) the
probation term must be reduced to two years. We modify the
judgment to reduce the probation term to two years and
otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2017, Baird pled guilty to felony grand theft after
he stole property from his employer, including a video camera
case he planned to use to store handguns. The court agreed to
“seriously consider” reducing the charge to a misdemeanor at the
time of sentencing. (§ 17, subd. (b).)
At the request of the court, the probation department
prepared recommended terms and conditions for both felony and
misdemeanor probation. The recommended felony terms
included, “The defendant shall not own, possess, or have
immediate access to any dangerous weapons, firearms,
ammunition, or oleocapsicum [sic] pepper spray.” The
recommended misdemeanor terms included, “No dangerous
weapons, firearms, ammunition.”
At sentencing, the trial court declared the case to be
a misdemeanor. The court reduced the jail term, restitution fine,
and fees from those recommended in the probation report. A
transcript of an audio recording of the hearing quotes the judge
as stating, “Remaining terms and conditions set forth in
Probation’s report are appropriate. [¶] Based on the criminal
history, no alcohol terms are appropriate from what I’ve seen.
Drug terms are imposed.” Baird then “accept[ed] probation on
those terms.”
The court reporter who prepared the transcript also
2
prepared a second version that states, “no other terms are
appropriate” rather than “no alcohol terms are appropriate.”
(Italics added.) When the audio recording was played for the jury
in the current case, the reporter testified that she heard the word
“alcohol,” not “other.”
The minute order states that Baird was released on
36 months conditional revocable release (summary probation) on
terms that include: “You shall not own, possess, or have
immediate access to any dangerous weapons, firearms,
ammunition or oleocapsicum [sic] pepper spray.” The minute
order included an alcohol prohibition.
The minute order was based on information a judicial
assistant entered into the computer system. She had worked
with the sentencing judge for about six years. She interpreted
his statement, “Remaining terms and conditions set forth in
Probation’s report are appropriate,” to mean that the probation
terms in the probation report were to be imposed. Baird signed
the minute order, acknowledging, “I have received a copy of these
conditions. I understand and agree to each of the conditions
listed above.”
On June 1, 2018, while Baird was on probation in the
2017 case, he went to a bar in Camarillo with a loaded handgun
under his shirt in his waistband. After arresting Baird, deputies
conducted a probation search of a bedroom and a garage safe at
his home and found seven handguns, three rifles, a shotgun, and
3,000 rounds of ammunition.
DISCUSSION
Sufficiency of the evidence
Baird contends his constitutional due process right
was violated because the evidence was insufficient to establish he
3
was prohibited from owning or possessing a firearm as “an
express condition of probation.” We disagree.
Section 29815, subdivision (a), provides: “Any person
who, as an express condition of probation, is prohibited or
restricted from owning, possessing, controlling, receiving, or
purchasing a firearm and who owns, purchases, receives, or has
in possession or under custody or control, any firearm . . . is
guilty of a public offense.” Section 30305, subdivision (a), makes
it a crime for any “person prohibited from owning or possessing a
firearm” pursuant to provisions including section 29815 to “own,
possess, or have under custody or control, any ammunition.”
Due process requires that every element of an offense
be proven by evidence that could reasonably convince a trier of
fact beyond a reasonable doubt. (Jackson v. Virginia (1979) 443
U.S. 307, 316-318.) We review the judgment to determine if it is
supported by substantial evidence. (People v. Mincey (1992) 2
Cal.4th 408, 432.) We review the entire record in the light most
favorable to the judgment, presume in support of the judgment
every fact that can reasonably be deduced from the evidence in
the record and determine whether any reasonable finder of fact
could have found that the prosecution sustained its burden of
proof beyond a reasonable doubt. (Ibid.) We do not reweigh
conflicting evidence or reevaluate the credibility of witnesses.
(People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
Baird contends the record does not establish the
existence of a probation term prohibiting him from possessing a
firearm. A trial court’s oral pronouncements “will be harmonized
if possible” with the court minutes. (People v. Smith (1983) 33
Cal.3d 596, 599.) “[P]robation conditions ‘need not be spelled out
in great detail in court as long as the defendant knows what they
4
are; to require recital in court is unnecessary in view of the fact
the probation conditions are spelled out in detail on the probation
order.”’ (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346; see
People v. Thrash (1978) 80 Cal.App.3d 898 [defendant bound by
travel restriction added to written probation terms after
sentencing, signed by judge, and provided to defendant].) Here,
the comments of the sentencing judge, combined with the
probation recommendations and the minute order signed by
Baird, constitute substantial evidence that a firearm prohibition
was imposed as a condition of probation.
Baird relies on one version of the sentencing
transcript to support his contention that the court did not impose
the firearm prohibition. But the jury heard the audio recording
of the hearing and ultimately resolved any conflicts in the
evidence. (People v. Houston (2012) 54 Cal.4th 1186, 1214;
CALCRIM No. 302.
Baird contends “it would have been illogical for the
court to impose a firearm prohibition, because it would have been
unreasonable” pursuant to People v. Lent (1975) 15 Cal.3d 481.2
He also contends that the court should have stated the
relationship between the firearm prohibition and the statutory
purposes of probation. (§ 1203.1; People v. Clark (1982) 130
Cal.App.3d 371, 386.) Baird apparently relies on Lent and Clark
to support his argument that the court did not prohibit firearm
2 “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. . . .’” (People v. Lent, supra, 15
Cal.3d at p. 486.)
5
possession, and not as an attempt to collaterally attack the
legality of the probation condition. If the former, the record
contains substantial evidence that the court did impose the
prohibition; if the latter, Baird forfeited any challenge to the
legality of the probation condition by failing to object when it was
imposed. (People v. Welch (1993) 5 Cal.4th 228, 237; see People v.
Bowen (2004) 125 Cal.App.4th 101, 106.)
Baird contends that his right to own firearms was
“restored” when the probation case was reduced to a
misdemeanor. (§ 17, subd. (b).) He relies on People v. Gilbreth
(2007) 156 Cal.App.4th 53, 57, and People v. Culbert (2013) 218
Cal.App.4th 184, 194, which hold that the law prohibiting felons
from possessing firearms does not apply when the felony has
been reduced to a misdemeanor. But Baird was not convicted of
being a felon in possession of a firearm or ammunition. (§ 29800,
former §§ 12021, 12316, subd. (b).) Instead, he was convicted of
possessing firearms and ammunition in violation of a term of
probation. (§§ 29815, 30305, subd. (a)(1).) The law regarding
felons in possession of firearms does not limit the court’s
authority to impose a firearm prohibition as a condition of
probation. (§ 1203.1, subd. (j).) And while section 29805, which
imposes a 10-year firearm prohibition for certain misdemeanor
convictions, does not apply to Baird’s grand theft conviction, it
also does not prohibit a probation condition prohibiting firearms.
Probation duration
Baird contends that his probation term must be
reduced to two years pursuant to a recent amendment to section
1203.1. We agree.
On April 27, 2020, the trial court placed Baird on 36
months’ formal probation. On September 30, 2020, the Governor
6
signed Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (A.B. 1950),
effective January 1, 2021. (Stats. 2020, ch. 328, § 2.) A.B. 1950
amended section 1203.1, subdivision (a), to limit probation in
felony cases to two years, with certain exceptions not applicable
here.
The Attorney General “does not contest” that the
amendment applies. The two-year limitation on felony probation
enacted by A.B. 1950 is an ameliorative change retroactive to
cases not yet final on appeal. (People v. Sims (2021) 59
Cal.App.5th 943, 955-964; People v. Quinn (2021) 59 Cal.App.5th
874.)
The Attorney General requests that we remand to the
trial court to consider whether any probation terms should be
modified in light of the modified duration of probation. (See
People v. Sims, supra, 59 Cal.App.5th at p. 964.) Remand is
unnecessary because, should the trial court deem it appropriate
to modify or terminate probation, it retains the jurisdiction to do
so. (§ 1203.3, subd. (a); People v. Quinn, supra, 59 Cal.App.5th at
p. 885 & fn. 6.) We therefore order that the probation period be
reduced to two years.
DISPOSITION
We modify the judgment to reduce the probation term
to two years. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J PERREN, J.
7
Ferdinand Inumerable, Judge
Superior Court County of Ventura
______________________________
Nancy Wechsler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.