People v. Guevara CA4/3

Filed 6/23/16 P. v. Guevara CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051484

v. (Super. Ct. No. 14NF1581)

FERNANDO ZAVALA GUEVARA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed as modified. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

Fernando Zavala Guevara appeals from the judgment after the jury convicted him of possession of marijuana for sale and the trial court placed him on three years of formal probation with terms and conditions. Guevara argues three probation terms are unconstitutional. For reasons we will explain, we conclude many of Guevara’s contentions have merit. Therefore, we will modify various terms of Guevara’s probation and affirm the judgment as so modified. FACTS Late one evening, Officer Mark Lillemoen was dispatched to a gas station in Anaheim to look for a brown Toyota Corolla. When Lillemoen arrived, he saw Guevara seated in the driver’s seat of a brown Toyota Corolla and a second person seated in the passenger’s seat. When Lillemoen asked Guevara what he was doing, Guevara said he and his friend were on their way to work when it was canceled, so they stopped at the gas station. Lillemoen asked Guevara if the car belonged to him, and Guevara said it did. During a search of the car, Lillemoen found a BB gun underneath the driver’s seat and a small digital scale sitting on the center console. In the trunk, Lillemoen found a black backpack containing two hard-packed marijuana balls wrapped in plastic and a blue duffel bag containing an air tank and bolt cutters. Lillemoen initially believed the air tank was a nitrous oxide tank, but after looking at the label on the tank, determined it to be a carbon dioxide tank. Guevara admitted the air tank was his, but denied the marijuana and bolt cutters belonged to him. Guevara admitted the BB gun was his and explained it was in his car because he planned to sell it. An information charged Guevara with possession of marijuana for sale (Health & Saf. Code, § 11359) (count1), and sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) (count2). At trial, Lillemoen testified possession of marijuana for sale is usually indicated by the following: (1) a large amount of marijuana; (2) a large amount of money; (3) pay-owe sheets; (4) a scale to measure the marijuana;