IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Glenn)
July 26, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SEAN ANTHONY PRIOR, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09SCR05727)
The opinion of the court was delivered by: Mauro, J.
P. v. Prior 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Sean Anthony Prior was convicted of receiving stolen property and possession of a short-barreled shotgun. He was placed on probation for three years with 360 days in jail.
Defendant contends on appeal that his trial counsel rendered ineffective assistance when he did not object to the admission of defendant's probation order for a prior controlled substance conviction.
We conclude that even if trial counsel's failure to object was deficient, there is no reasonable probability that exclusion of the probation order would have yielded a more favorable result for defendant. The jury acquitted defendant of burglary, indicating that it was performing its duties without bias or prejudicial effect. Moreover, defendant's fingerprints were on an item of stolen property, and a witness saw him holding the shotgun.
We will affirm the judgment.
On November 15, 2007, Deputy Dicharry and Detective Felton were dispatched to William Jarman's residence in Willows following a report of a burglary. William*fn1 said that among the stolen items were 20 guns, a gun cabinet, ammunition, a tool box full of tools, and flashlights. William's sister, Rebecca, gave the deputies information on each of William's firearms.
While speaking with a neighbor, Detective Felton saw a pickup truck drive by and recognized the driver as A.J. Urrutia. Based on numerous prior contacts including an arrest, Felton knew that Urrutia was on searchable probation. Felton thought it was odd that Urrutia would be in the area. Felton made an enforcement stop of the truck to do a "probation compliance check" on Urrutia.
Detective Felton identified defendant as the passenger in the truck and searched the truck's interior. Underneath clothing behind the passenger seat, Felton found a pistol that was accessible to defendant. The pistol was on Rebecca's list of missing firearms. A further search of the truck revealed four 12-gauge shotgun shells.
Urrutia told Detective Felton that the gun cabinet and remaining firearms were at the Willows residence of his girlfriend, Guadalupe Vasquez. When Felton arrived at her residence, Vasquez gave written consent for Felton and accompanying deputies to search her residence and seize the property taken from the Jarman residence. Vasquez explained that defendant brought the property to her residence the previous evening and told her he needed a place to store it. The deputies seized the gun cabinet, firearms, ammunition and tools. William later verified that the recovered items had been taken from his residence.
Defendant told Detective Felton that Urrutia tried to sell him the firearm located behind the truck seat, but defendant denied any knowledge of the other stolen property. Defendant admitted that the shotgun shells and clothing in the truck belonged to him. He said he never saw the gun cabinet and had never been to the Jarman residence. However, a latent print examiner testified that he found 22 latent fingerprints matching defendant's known prints on the top, sides, and inside door of the gun cabinet.
Detective Felton subsequently learned that two firearms had been thrown from the truck prior to the stop. Felton drove to the described location and recovered a short-barreled shotgun and a handgun. The handgun's serial number was on the list of missing firearms.
William knew defendant as a friend of his son's. William's son said he had seen defendant with a short-barreled shotgun. At trial, the son identified the shotgun recovered by the roadway as the same one he had seen defendant holding at Vasquez's residence.
A jury acquitted defendant of burglary (Pen. Code,*fn2 § 459; count I) but convicted him of receiving stolen property (§ 496, subd. (a); count II) and possession of a short-barreled shotgun (§ 12020, subd. (a)(1); count III). The trial court suspended imposition of sentence and placed defendant on probation for three years with conditions including 360 days in jail. The trial court awarded defendant six days' custody credit and six days' conduct credit.
Defendant was previously convicted of using or being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a). His probation order provided that he must submit to a warrantless search of his person, residence, vehicle or other property upon reasonable request by a probation or law enforcement officer.
During direct examination of Detective Felton in the present case, the prosecutor gave a copy of defendant's probation order to the detective, marked as People's Exhibit No. 95. The following colloquy occurred:
"Q And showing you People's Exhibit Number 95, do you recognize what that is?
"A This is a court document depicting the name Sean Anthony Prior and --
"Q Does it have a particular -- for example, number 16?
"Q And what does that provision of his probation say?
"A Reading off the form, 'Defendant is to submit to search of his person, place of residence, vehicle or other property upon reasonable request of probation or law enforcement officer without a warrant.'
"[THE PROSECUTOR]: We'd offer People's Exhibit Number 95 into evidence, and I would make a representation that that's a certified copy of the court order.
"THE COURT: [Defense counsel.]
"[DEFENSE COUNSEL]: No objection.
"THE COURT: Be received."
Defendant now contends his trial counsel rendered ineffective assistance when counsel did not object to admission of the probation order.
A conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiency. (Ibid.)
In this case, even if trial counsel's failure to object was deficient, there is no reasonable probability that exclusion of the probation order would have yielded a more favorable result. (People v. Rodrigues, supra, 8 Cal.4th at p. 1126.)
Defendant argues the evidence of the prior conviction was prejudicial because the jury must have concluded it was evidence of past conduct indicating a propensity to commit the charged crimes. But the jury acquitted defendant of burglary, indicating that it was performing its duties without bias or prejudicial effect.
Alternatively, defendant contends the jury might have considered his "narcotics-offender status as an explanation for why [he] would possess stolen and illegal firearms." Even without the probation order, however, there was overwhelming evidence that defendant received stolen property and possessed the shotgun. William's son testified that he saw defendant with the shotgun, and defendant's fingerprints were on the gun cabinet.*fn3
Defendant makes much of the fact that the jury's deliberations were 10 minutes longer than the presentation of evidence. But the length of deliberations may simply reflect the care with which the jury considered the evidence before acquitting defendant on one count and convicting him on two other counts. The length of deliberations does not indicate that counsel's failure to object to People's Exhibit No. 95 was prejudicial.
The judgment is affirmed.
We concur: BLEASE, Acting P. J. HULL, J.