The People v. Saelee CA5

Filed 8/28/13 P. v. Saelee CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F065710 Plaintiff and Respondent, (Super. Ct. No. CRM22255B) v.

KAO CHOY SAELEE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

David D. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Gomes, Acting P.J., Detjen, J. and Peña, J.

PROCEDURAL AND FACTUAL BACKGROUND Defendant Kao Choy Saelee was convicted by a jury of being a felon in possession of a firearm (Pen. Code,1 § 29800, subd. (a)(1)) and being a felon in possession of ammunition (§ 30305, subd. (a)(1)). In a bifurcated proceeding, defendant admitted suffering a prior prison term within the meaning of section 667.5, subdivision (b). Defendant received a sentence of three years for the firearm conviction plus one year for the prior prison term enhancement. The court imposed a concurrent three-year sentence for the ammunition conviction. On appeal, defendant argues there was insufficient evidence to support his conviction of being a felon in possession of ammunition. We disagree and affirm the conviction. Defendant also contends that the trial court erred by not staying the sentence for the ammunition conviction. On this point, we agree with defendant and order the trial court’s judgment be modified to reflect a stay of defendant’s sentence for possession of ammunition. The salient facts are uncontroverted and are derived exclusively from the trial testimony of Merced police officers Ramon Ruiz and Edward Drum. On April 6, 2012, Ruiz conducted a traffic stop of a vehicle driven by Gloria Aguirre; defendant was the passenger. The traffic stop led to a search of the vehicle during which Ruiz discovered a .22-caliber magazine stashed in the driver’s side door. Ruiz then asked defendant if he “knew where the gun was that belonged to the magazine.” Defendant indicated he would provide the gun’s location if neither he nor his “girlfriend” would be arrested because of it. Ruiz indicated that he could make no such promise and requested the information from defendant once again. Defendant then indicated the gun was located in a storage shed owned by Aguirre. Ruiz asked defendant if he had ever touched the gun and whether ammunition would also be found in the shed. Defendant responded that he had in fact touched the gun before, that his DNA would be on the gun, and that “there was ammunition in [the shed].” Defendant did not state he shared the shed with Aguirre, but