People v. Berna CA5

Filed 1/30/15 P. v. Berna 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F066764 Plaintiff and Respondent, (Super. Ct. No. 12CM2572) v.

MICHAEL ALLEN BERNA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Emily J. Haden, 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, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General for Plaintiff and Respondent. -ooOoo- Michael Allen Berna was convicted of being a felon in possession of a firearm, receiving a stolen firearm, carrying a loaded firearm in a vehicle in a public place, and

*Before Levy, Acting P.J., Cornell, J., and Smith, J.

driving without a license. He argues that the trial court erroneously admitted evidence that, along with the gun, he was in possession of paraphernalia indicative of possible drug selling. He also argues that the court erred by not giving, on its own motion, a jury instruction on the limited admissibility of that evidence. We find no error and affirm. FACTS AND PROCEDURAL HISTORY In the afternoon of July 19, 2012, Officer Alvaro Santos of the Lemoore Police Department pulled over Berna’s Chevrolet Suburban. The Suburban had wide tires that extended six inches beyond the fenders, violating Vehicle Code section 27600 (mud flaps required if tires wider than body of vehicle). Berna presented an expired driver’s license. Santos had Berna get out so he could have the Suburban towed, which was the usual procedure in cases of unlicensed drivers. Santos then spoke to James Green, who was in the passenger seat. In response to Santos’s questions, Green admitted he had “some weed” in his pocket, which turned out to be “enough for about one use.” Green also had some plastic baggies, on which there was a four-leaf clover logo. Santos handcuffed Green and put him in the patrol car. Green ultimately was cited and released. Santos told Berna he was going to impound the Suburban and would need to conduct an inventory search. Berna became argumentative. He clenched his fist and yelled that Santos could not search the car. Santos told Berna to put his hands behind his back, but Berna failed to do so and continued to yell that Santos could not search the car. As two other officers grabbed Berna’s hands, Santos drew his Taser from its holster and held it at his side. Berna was handcuffed. Santos searched the Suburban. He found about four changes of men’s clothes on the back seat. Later, during booking, Berna told Santos he was homeless and had been living in the Suburban. In the middle of the front seat, between the driver and passenger, Santos found a black nylon bag. The bag was open and Santos saw the handle of a gun