P. v. Sylvester

Filed 7/18/06 P. v. Sylvester CA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Oliver Sylvester appeals his jury-trial conviction for being a felon in possession of a handgun, in violation of Penal Code section 12021.1.[1] Sylvester contends the handgun in question was seized in an illegal search, in violation of his rights under the Fourth Amendment. Sylvester also contends the trial court erred to his prejudice by admitting into evidence a photograph showing him posing with the gun and a wad of cash while seated at the same desk from which the gun was seized. We affirm.

PROCEDURAL BACKGROUND

On April 27, 2004, the trial court granted the People's motion to consolidate for trial three cases involving charges of violence by appellant against his domestic partners. On May 4, the People filed the operative Information charging appellant as follows: count 1--attempted murder of Jessica Rattley (Rattley) on or about June 13, 2002, in violation of section 187; count 2--assault on Rattley with a firearm, in violation of section 245, subd. (a)(2); count 3--infliction of corporal injury upon Rattley, in violation of section 273.5, subd. (a); count 4--false imprisonment of Rattley, in violation of section 236; count 5--assault on Rattley by means of force likely to produce great bodily injury, in violation of section 245, subd. (a)(1); count 6--criminal threat against Rattley, in violation of section 422; count 7--felon in possession of a handgun, in violation of section 12021.1; count 8--criminal threat against Sherilyn Sylvester on or about December 14, 2002, in violation of section 422; count 9--criminal threat against Sherilyn Sylvester on or about December 15, 2002, in violation of section 422; count 10--criminal threat against Sherilyn Sylvester on or about July 28, 2003, in violation of section 422; count 11--exhibiting a firearm in a threatening manner against Sherilyn Sylvester, in violation of section 417, subd. (a)(2); count 12--battery against Sherilyn Sylvester as spouse, in violation of section 243, subd. (e)(1). The Information also included allegations of two prior second degree robbery convictions and allegations for use of a firearm with respect to the counts 1-5.

Trial testimony began on May 5, 2004, and concluded on May 11, 2004. Deliberations commenced on the afternoon of May 12, 2004, and the jury returned its verdicts on May 14, 2004. The jury found appellant not guilty on all counts naming Sherilyn Sylvester as the victim (counts 8-12). As for the counts involving Rattley, the jury found appellant not guilty on counts 1 and 2, and not guilty on the lesser included offense to count 1 of attempted manslaughter. The jury did not reach a verdict on counts 3, 4, and 5. The only guilty verdict returned by the jury was on count 7--felon in possession of a handgun.

At the prosecutor's request, the trial court dismissed appellant's second prior robbery conviction pursuant to section 1385. The trial court sentenced appellant to the upper term of 3 years on the section 12021.1 conviction, doubled to six years pursuant to section 667, subdivision (d).

FACTS

A. Altercation at the VIP Club

The issues on appeal only touch the circumstances giving rise to counts 1-7, involving Jessica Rattley. At trial, Rattley testified as follows: On June 12, 2002, appellant worked as manager at the VIP Club (club), a private club in San Francisco. Rattley went to see appellant at about 10:00 p.m. to discuss the future of their relationship. Rattley and appellant had a few drinks together as they talked in the office at the club. At about 1:30 a.m., a heated argument broke out between them after Rattley heard appellant taking a call on his cell phone from another woman. Rattley told appellant she was through with him and walked out of the club. Appellant followed her. Rattley got into her car while she and appellant continued to yell and scream at one another. Rattley put her car in drive and it jolted forward and bumped appellant's car. According to Rattley, appellant then pulled a gun and pointed it at her before getting in his car and driving off.

After this, Rattley went to appellant's residence because she wanted to retrieve certain photographs which had been taken professionally and paid for by her. Appellant's roommate let Rattley into the residence, and she went to appellant's room and took her photographs, as well as another photograph of appellant which she saw on the dresser. The photograph showed appellant sitting at a desk with a gun and some money. Rattley took the photograph just to annoy appellant. She stated she thought this would â€