People v. Sellers CA5

Filed 1/28/14 P. v. Sellers 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064145 Plaintiff and Respondent, (Fresno Super. Ct. No. F10903486) v.

BENNIE LEE SELLERS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Paul Stubb, Jr., 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, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

BACKGROUND Defendant was charged with being a felon in possession of a firearm (count I – former Penal Code1 § 12021, subd. (a)(1)2) and ammunition (count II – former § 12316, subd. (b)(1)3.) Defense counsel stipulated to the prior felony conviction for purposes of the two charges. After a jury convicted defendant on both counts, the court suspended sentence and placed defendant on three years’ formal probation.4 TRIAL EVIDENCE Prosecution Evidence Defendant and his wife, Sylvia Sellers, lived next door to Paula Lopez in a duplex. The two residences share a wall. At 6:00 p.m. on June 20, 2010, Lopez left the duplex. She returned a few hours later and observed a hole in the shared wall. Mrs. Sellers went to Lopez’s residence. Lopez had never spoken to her before. Mrs. Sellers told Lopez “it was an accident … her husband was picking up some weights and it fell and it made the hole.” Later, Mrs. Sellers told Lopez that “her husband was cleaning [a] pistol and that it had fallen.” She also told Lopez she would fix the hole and eventually did so. Lopez found a bullet in her residence the day after the incident. She was using a walker, and the bullet “got stuck” in it. Lopez’s landlord, Jesse Atkins, eventually found out about the damage after it had been repaired and called the police.

1 All subsequent statutory references are to the Penal Code unless otherwise noted. 2 Section 12021, subdivision (1) has since been recodified as section 29800. 3 Section 12316, subdivision (b)(1) has since been recodified as section 30305. 4A minute order from the sentencing hearing inaccurately indicates defendant was placed on nine years’ probation.