People v. Gaston CA3

Filed 3/16/15 P. v. Gaston CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C074840

Plaintiff and Respondent, (Super. Ct. No. SF122590B)

v.

EDWARD CHARLES GASTON,

Defendant and Appellant.

In February 2013, defendant Edward Charles Gaston pled guilty to shooting at an occupied motor vehicle. In exchange, several related counts and allegations were dismissed. Defendant was sentenced to prison for the middle term of five years. Execution of sentence was suspended and defendant was placed on probation for five years on conditions including incarceration for 360 days with credit for 41 days. In June 2013, an affidavit was filed alleging that defendant violated his probation by failing to obey all laws. Specifically, it was alleged that defendant had violated Penal

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Code1 section 4502, subdivision (a), by possessing an instrument while incarcerated. Following a contested hearing in July 2013, defendant was found to have violated his probation. In September 2013, the trial court ordered execution of the prison sentence. On appeal, defendant contends: (1) the trial court abused its discretion when it found that the possessed object, a bolt with a nut on each end, was a “dirk or dagger” within the meaning of section 4502; and (2) the court violated his due process rights when it revoked his probation without sufficient evidence of a probation violation. We affirm. FACTS AND PROCEDURAL BACKGROUND The facts of the underlying offense are not at issue and need not be set forth in this opinion. On May 31, 2013, San Joaquin County Sheriff’s Correctional Officer Albert Carter noticed defendant sitting in the bunk bed area of a barracks at the Honor Farm. Defendant was showing an item to another inmate. As Officer Carter approached the area, defendant placed the item in the waistline of his pants. Officer Carter asked defendant to pull out his shirt from his pants. Defendant pulled out a white sock from his waistline and tossed it onto a bunk. Inside the sock was a metal bolt, approximately nine inches long, with threading on each end and a nut screwed onto each thread. The nuts were round and were not filed down or sharpened. However, the instrument could be rendered sharper by removing the nuts. A photograph of the instrument was admitted into evidence. (Exhibit A.) Officer Carter testified that the object was “a start of a tool to be transposed to a weapon or to make-shift to a weapon.”