People v. Akin CA3

Filed 2/14/14 P. v. Akin CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C072957

v. (Super. Ct. No. CRF121403)

ZACHARY BE AKIN,

Defendant and Appellant.

A jury convicted defendant Zachary Be Akin of possession of a firearm by a person previously convicted of a felony. (Pen. Code, § 29800, subd. (a)(1).) 1 The trial court found that defendant had a prior conviction for discharging a firearm in a grossly negligent manner (§ 246.3), and sentenced defendant to an aggregate term of three years four months in prison.

1 Undesignated statutory references are to the Penal Code.

1

Defendant now contends the trial court prejudicially erred in admitting evidence of the prior felony. He argues the prior acts were improperly offered to prove a common plan or scheme under Evidence Code section 1101, subdivision (b); but even if the evidence was offered to prove knowledge or lack of mistake, the prior acts were not sufficiently similar to the charged conduct. We conclude defendant forfeited his challenge to the admissibility of the prior act evidence. Defendant did not move in limine to exclude the prior act evidence, he did not specifically object that the evidence was inadmissible to prove knowledge or lack of mistake (the specific grounds upon which the trial court admitted the evidence), and he did not object when the prior act evidence was actually offered at trial. Moreover, to the extent defendant’s contention may be deemed a claim that the trial court committed instructional error (because the trial court instructed the jury that the prior act evidence could be used to prove, among other things, a plan or scheme), we conclude any error was harmless. Strong evidence supports defendant’s conviction for possession of a firearm by a person previously convicted of a felony. The Attorney General separately asserts that the abstract of judgment should be corrected to accurately reflect the orally pronounced presentence credits. We agree. We will affirm the judgment and order correction of the abstract of judgment. BACKGROUND A Responding to a reported traffic accident on December 24, 2011, a Woodland police officer saw an unoccupied vehicle in the street. The vehicle had struck a pole. Defendant’s cell phone was near the driver’s seat. Woodland Police Officer Fondersmith and Sergeant Sexton went to defendant’s listed address. Fondersmith had contacted defendant there before. The officers knocked on the door; Vincent R., one of the residents, opened the door about two minutes later.