People v. Cael CA1/5

Filed 2/11/14 P. v. Cael CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, A135248

v. (San Francisco County Super. Ct. No. 216808) JEVON CAEL,

Defendant and Appellant. _____________________________________/

A jury convicted appellant Jevon Cael of two counts of unlawful possession of a firearm (former Pen. Code, § 12021, subd. (g)(2) & (c)(1) (Counts I and II)),1 and contempt of court regarding a protective order (§ 166, subd. (c)(1) (Count III)). At the sentencing hearing, the trial court placed appellant on probation and imposed, among other things, a $135 Criminal Justice Administration Fee pursuant to Government Code section 29550.2 (booking fee) and a $200 restitution fine pursuant to section 1202.4. The minute order and probation order, however, reflect a $240 restitution fine. On appeal, appellant contends: (1) the court erred by declining to give a pinpoint instruction on constructive possession of a firearm; (2) the court erred by imposing the

1 Unless otherwise noted, all further statutory references are to the Penal Code. 1

booking fee; and (3) the minute order and probation order should be modified to reflect the restitution fine the court orally imposed at the sentencing hearing. We modify the sentencing minute order and probation order to impose a $200 restitution fine pursuant to section 1202.4. In all other respects, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Appellant is the father of two of Sara Thomas’s children. A July 2011 protective order prevented appellant from coming within 100 yards of Thomas or her house. In October 2011, appellant spent a few nights at Thomas’s house. Appellant and Thomas were not getting along and they avoided each other when they were at Thomas’s house. On October 13, 2011, Thomas and appellant got into an argument. “For a brief second[,]” Thomas saw appellant with a small handgun and she felt threatened. On the evening of October 14, 2011, appellant slept in the children’s bedroom at the front of the house; Thomas and the children slept in her bedroom. Thomas referred to the front bedroom as her children’s room, but her children did not sleep there. On the morning of October 15, 2011, appellant was sleeping in the front bedroom. Thomas called the police because she wanted appellant “out of [her] house” and because she was tired of not getting along with him. San Francisco police officers went to Thomas’s home and found appellant sleeping in the front bedroom. Thomas told the officers there was a gun in the bedroom and allowed the officers to search it. They did and found a loaded gun under the mattress of the bed where appellant had been sleeping. After being Mirandized, appellant admitted he should not have been at Thomas’s house and that he had a loaded “gun in the house . . . for protection.”2 He said he put the gun under his mattress before he went to sleep. A jury convicted appellant of Counts I, II, and III. The court suspended imposition of sentence on Count II, stayed Counts I and III, and placed appellant on probation for three years. As a condition of probation, appellant was to spend one year in county jail, with credit for time served. At the sentencing hearing, the trial court imposed