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The People v. Solomon Abyabwi Gabriel

May 24, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SOLOMON ABYABWI GABRIEL, DEFENDANT AND APPELLANT.



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

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

(opn. foll. rehg.)

CERTIFIED FOR PUBLICATION

Affirmed.

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.

BACKGROUND

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 ...


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