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The People v. Javier Jay Velez

December 29, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAVIER JAY VELEZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF112209A)

The opinion of the court was delivered by: Butz , J.

P. v. Velez

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following an unsuccessful Penal Code section 1538.5*fn1 motion to suppress evidence essential to his conviction, defendant Javier Jay Velez pleaded no contest to being a felon in possession of a firearm (§ 12021, former subd. (a)) and admitted he had a prior serious felony conviction (§§ 667, subds. (a)-(d), 1170.12, subd. (b)). On appeal, he claims error only in the denial of his motion to suppress. We shall affirm.

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY*fn2

Defendant was driving the car of his girlfriend, Kristy Evans, when Stockton Police Officer Michael Reynosa recognized him as he drove past. The car had a broken taillight. Reynosa had had contact with defendant two weeks earlier, and knew defendant was unlicensed and on searchable probation. The search condition included defendant's person, vehicle, residence and areas over which he exercised control. Defendant pulled over, and while speaking with Reynosa, admitted he was still unlicensed and on probation. After the records department confirmed defendant remained on probation, Reynosa had the car searched and impounded.

The records search indicated defendant's known address was on Bianchi Street, his mother's address. When he was stopped, he was approximately six blocks away from his mother's home. Nonetheless, defendant stated he was going from a store to Evans's house to take a shower. Evans lived on Country Club Boulevard, about six miles away from where defendant was stopped. Defendant told Officer Reynosa he was "staying both at his mom's and at his girlfriend's."

Officer Reynosa went with defendant to Evans's home. Evans confirmed defendant "stayed" at both her home and his mother's home "part time." Reynosa informed Evans the officers were going to conduct a probation search of the home. She argued and indicated defendant did not live at the home and it was not his address of record. She acknowledged he stayed at the apartment three or four days a week, but reiterated it was not his probation address. Reynosa asked Evans if he would find anything in the home and Evans's son answered, "My daddy has two guns in the home." Defendant is the child's father. After initially denying there were guns in the home, Evans admitted there was a gun in the closet.

Upon searching the studio apartment, officers found a pump-style shotgun with five live rounds attached to the stock in a closet. In a drawer, they found an illegal butterfly knife and two live shotgun shells. They found red clothing belonging to defendant, other items of men's clothing, some of which belonged to defendant, in the closet and men's shoes on the porch. They also found paperwork, bills and a pay stub in defendant's name in both the closet and drawer.

Defendant filed a motion to suppress, arguing he did not live in Evans's apartment on Country Club Boulevard; therefore, his probation search did not entitle officers to search the apartment without a warrant. He contended that to search a residence other than the one listed as his probation address, there had to be probable cause that he was concealing his true residence. The People responded that if he did not live at Evans's apartment, he did not have standing to challenge the search of the apartment. Alternatively, if he did live there, it was covered by the probation search conditions. Evans joined in the motion to suppress and the parties submitted based on the preliminary hearing transcript.

After hearing argument, the trial court noted the discussion was relevant only to Evans's motion to suppress, "because [defendant] is going to lose whichever way I go. Either he has no standing to contest the search . . . [o]r [defendant] does have standing, but the probation allows the search." Ultimately, the court stated, "I do not find [defendant] lived at the apartment owned or occupied by Ms. Evans. However, based on the terms of probation that the search is permissible under property under [defendant's] control with the statements of both Ms. Evans and [defendant] that [defendant] . . . stayed there as much as three times a week, that alone leads the Court to believe that it's reasonable for the officer to believe that [defendant] had control over the room in which the property was found." The court went on to find defendant had standing to raise the motion, but under the terms of his probation conditions, the search was proper.

Following the denial of his motion to suppress, defendant pleaded no contest to being a felon in possession of a firearm and admitted a prior strike. He was sentenced to state prison for the upper term of three years, doubled to six years, pursuant to the prior strike conviction. Defendant was awarded 194 total days of ...


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