(Super. Ct. No. 10CR17045)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Justin Page appeals the judgment of conviction entered against him after a jury found him guilty of being a felon in possession of a firearm. He contends (1) the trial court violated his constitutional rights to due process and trial by jury by removing an element of the crime from the jury's determination, (2) the trial court failed to instruct the jury on reasonable doubt, (3) the trial court abused its discretion in failing to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and (4) there is insufficient evidence of his ability to pay the booking fee imposed by the trial court. As will be explained, each of defendant's claims lacks merit. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant picked up his friend, Dylan Woody, from Woody's grandfather's house in Tahoe City on his way to visit family at a home just outside of Ione. Woody got into the car carrying a rifle wrapped in a pink towel. He unwrapped the towel and showed defendant the rifle. They discussed that they would shoot the rifle in Ione, where it was "pretty wide open." Woody wrapped the rifle back up and laid it down on the folded-down back seat, and they started on their way.
On the way to Ione, defendant stopped at a convenience store. Both men rummaged around in the back of the car to make room for the groceries and then went into the store. When they returned to the car, they realized they had inadvertently uncovered the rifle. They covered it back up before getting back into the car and continuing on their way.
At some point during the trip, defendant was pulled over by Ione Police Officer Joshua Long for speeding. Defendant informed Officer Long he was on parole. Officer Long noticed the smell of marijuana and asked if there was anything illegal in the car. Defendant said there was marijuana "in the back." After confirming that neither occupant had any outstanding warrants, Officer Long asked defendant to step out of the car, checked him for weapons and contraband, handcuffed him, and placed him in the rear of the patrol car. He also checked Woody for weapons and contraband and asked him if there was anything illegal in the car. Woody told him about the marijuana and the rifle. Officer Long searched the car and found the rifle, which was within arm's reach of both occupants. Woody said the rifle was his and that he had recently inherited it from his grandfather. Officer Long confiscated the rifle and, after confirming it was not loaded,*fn1 issued Woody a written property receipt. Officer Long also found two baggies of marijuana in the pocket of a sweatshirt. Defendant told Long he had "a medical marijuana card" and gave him a small piece of paper with some information on it. Officer Long placed defendant under arrest for possessing a firearm and marijuana.
Defendant was charged by information with possession of a firearm by a felon, a felony (Pen. Code, former § 12021, subd. (a)(1)*fn2 ) and possession of marijuana while driving, a misdemeanor (Veh. Code, § 23222, subd. (b)). The information alleged one prior conviction (§ 667.5, subd. (b)) and a prior serious or violent felony conviction (§ 667, subds. (b) - (i)).
A jury found defendant guilty of being a felon in possession of a firearm, but was unable to reach a verdict on the marijuana possession charge. The trial court declared a mistrial on that charge, which was thereafter dismissed on the People's motion. In a bifurcated proceeding, the court found the prior conviction and prior strike conviction allegations true.
Defendant filed a Romero motion asking the court to strike his prior strike, a 2003 conviction for threatening to commit a crime resulting in death or great bodily injury (§ 422). After oral argument on the matter, the court denied defendant's motion. The court sentenced defendant to the middle term of two years, doubled pursuant to the prior strike, plus one year for the prior prison term, for an aggregate term of five years in state prison. Defendant was awarded 282 days of presentence custody credit and ordered to pay specified fees and fines, including a $63.50 booking fee.
Defendant filed a timely notice of appeal.