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The People v. Joseph Hawkins

November 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSEPH HAWKINS, DEFENDANT AND APPELLANT.



(Los Angeles County Super. Ct. No. TA115179) APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge.

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

CERTIFIED FOR PUBLICATION

Affirmed as modified.

INTRODUCTION

Defendant and appellant Joseph Hawkins (defendant) pleaded no contest to three counts of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)*fn1 ), one count of possession of ammunition (§ 12316, subd. (b)(1)), and one count of corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)). Defendant appeals the denial of his motion to suppress evidence, contending that the magistrate erred by admitting hearsay evidence concerning a purported written consent to a search of his home. Defendant also contends that the trial court erred in imposing a $20 D.N.A. penalty assessment pursuant to Government Code section 76104.7. We hold that defendant forfeited his contention, not raised before the trial court, that the magistrate erred by admitting hearsay evidence resulting in the denial of his motion to suppress. We also order the trial court to issue an amended abstract of judgment that does not impose a $20 D.N.A. penalty assessment. We otherwise affirm the judgment.

BACKGROUND

A. Factual Background*fn2

Defendant and Nicole Hall had been dating for about four years. Defendant and Hall had an altercation at defendant's house, and Hall called 911. Los Angeles County Sheriff's Department Deputy Joel Macias responded to the 911 call. According to Deputy Macias, when he arrived at defendant's house, Hall told him that defendant had hit her in the head with a brick. Hall also told the deputy that defendant had guns and marijuana in the house.

Defendant was detained at the front door of the home. According to Deputy Macias, defendant, after waiving his Miranda*fn3 rights, told him of defendant's possession of three guns in the home and where they were located, and that there was marijuana in the house. Deputy Macias said defendant gave him both oral and written consent to search the residence. Following a search, two handguns, a shotgun, and marijuana were found in defendant's residence.

B. Procedural Background

Defendant made a motion pursuant to section 1538.5 to suppress evidence obtained as the result of the search and seizure, which motion was heard at the preliminary hearing. (§ 1538.5, subd. (b)(1).) The magistrate denied the motion.

The District Attorney of Los Angeles County filed an information charging defendant with three counts of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) (counts 1 through 3), one count of possession of marijuana for sale in violation of Health and Safety Code section 11359 (count 4), one count of possession of ammunition in violation of section 12316, subdivision (b)(1) (count 5), and one count of corporal injury to a spouse or cohabitant violation of section 273.5, subdivision (a) (count 6). The district attorney alleged as to counts 1 through 5 that defendant suffered one prior strike conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court granted the prosecution's motion to dismiss count 4, and counts 5 and 6 were renumbered as counts 4 and 5, respectively.

Defendant moved in the trial court, pursuant to section 995, to dismiss the information, raising the search and seizure issue. The trial court denied the motion. Defendant then pleaded no contest to all counts, and the trial court struck the prior strike allegation. The trial court sentenced defendant to state prison on count 1 to the middle term of two years. The trial court also sentenced defendant to two years on counts 2 through 4, and one year on count 5, all to be served concurrently with his sentence on count 1. The trial court awarded defendant two days of actual custody credit.

The trial court ordered defendant to pay a $200 court security assessment pursuant to section 1465.8, subdivision (a)(1), a $150 criminal conviction assessment pursuant to Government Code section 70373, a $200 restitution fine pursuant to section 1202.4, subdivision (b), and a $20 D.N.A. penalty assessment pursuant to Government Code section 76104.7. The ...


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