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The People v. Solomon Abyabwi Gabriel

February 3, 2012


APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed. (Los Angeles County Super. Ct. No. MA048498)

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


Defendant and appellant Solomon Abyabwi Gabriel appeals from his conviction of cultivation and possession of marijuana, and other offenses. He contends that the trial court erroneously admitted evidence of prior convictions for purposes of impeachment, and argues that without the evidence, there was a reasonable probability that the jury would have believed his testimony. We reject defendant's contentions and affirm the judgment.


1. Procedural Background

Defendant was charged by information as follows: cultivating marijuana in violation of Health & Safety Code, section 11358 (count 1); possession of marijuana for sale in violation of Health and Safety Code section 11359 (count 2); receiving stolen property in violation of Penal Code section 496, subdivision (a) (count 3);*fn1 unlawful possession of ammunition in violation of section 12316, subdivision (b)(1) (count 4); misdemeanor possession of property with serial number removed in violation of section 537e, subdivision (a)(2) (count 5); and misdemeanor possession of burglar's tools in violation of section 466 (count 6). The information alleged as to counts 1 through 4 that defendant was free of custody on bail when he committed the offenses, within the meaning of section 12022.1.

A jury found defendant guilty on all counts as charged except count 2. As to count 2, the jury found defendant guilty of the lesser included offense of possession of more than 28.5 grams of marijuana in violation Health and Safety Code section 11357, subdivision (c). After a bifurcated trial on the special allegation that defendant was free of custody on bail at the time of the offense, the jury found the allegation true as to counts 1, 3, and 4.

The trial court sentenced defendant to a total of four years in prison as to counts 1, 3, and 4, which was comprised of one-third the middle term of eight months as to each such count, running consecutively to the sentence imposed in Los Angeles Superior Court case No. MA038664, plus a two-year enhancement under section 12022.1. As to each of counts 2, 5, and 6, the trial court imposed six months in jail and stayed each term pursuant to section 654. The court imposed mandatory fines and fees and awarded defendant no presentence credit. Defendant filed a timely notice of appeal.

2. Prosecution Evidence

On July 29, 2009, Los Angeles Sheriff's deputies conducted surveillance with binoculars on defendant's rural property, and observed 17 growing marijuana plants. When defendant attempted to drive away from the property, several sheriff's cars blocked his way. The deputies detained defendant and searched his property.

The property was a fenced yard with a motor home, two large connex trailers used for storage, numerous cars and trailers, a trampoline, and a planted area containing the marijuana plants. As a result of their search, deputies found dozens of tools, including a floor sander, a burglar's tool kit, and a "slim jim" tool for entering locked vehicles. The serial number of the floor sander had been scratched off and several stickers had been removed from it. Some of the tools were marked "E-Home Control" and bore phone numbers and the name McDugald. In the motor home, deputies found two boxes of live .22-caliber ammunition, envelopes addressed to defendant, and two books with defendant's name on them.

Sergeant Mark Machanic interviewed defendant after his arrest. Sergeant Machanic testified that defendant, who did not appear to be under the influence of marijuana during the interview, said he was growing the marijuana for medical purposes and claimed to have a doctor's note allowing him to possess 8 ounces of cured marijuana, 6 mature plants, or 12 seedlings. When told that he had exceeded the limit, defendant denied there were more than six mature plants but admitted that he was the only person cultivating the plants and that they were all his. Defendant denied selling marijuana, but claimed that he gave some of it to friends without charge.

Defendant told Sergeant Machanic that he had purchased many of the tools from Home Depot and other home improvement stores; that many had belonged to his deceased grandfather; and that he was storing some of the tools for friends. Defendant claimed he had receipts, but a later search in areas indicated by defendant turned up none. Defendant claimed that he had bought the floor sander new from a distributor for $400, but Sergeant Machanic researched the value and determined that the machine sold new for $2,800. When Sergeant Machanic asked defendant about the E-Home Control tools, defendant said that he had no idea where they had come from and that someone must have stored them on his property, but he would not identify them or provide contact information. Deputies had found a go-cart, a motorcycle, and a bicycle on the property. Defendant told Sergeant Machanic that he bought one of them on the street in Los Angeles and had no receipts. Defendant admitted that the ammunition belonged to him, explaining that they were for firearms he no longer had. Defendant denied knowledge of the burglar's tools and slim jim.

Michael McDugald (McDugald) testified that he was the sole proprietor of E-Home, which sold custom residential electronics. He identified as his the tools that had been seized on defendant's property which bore his company's name. McDugald testified that the tools had been stolen in 2008 from a company automobile, which ...

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