People v. Valentin CA3

Filed 8/23/16 P. v. Valentin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C079430

Plaintiff and Respondent, (Super. Ct. No. 13F05644)

v.

SAMUEL EARL VALENTIN,

Defendant and Appellant.

Defendant Samuel Earl Valentin challenges his conviction by jury of being a felon in possession of a firearm. (Pen. Code, § 29800, subd. (a)(1); unless otherwise set forth, statutory references are to the Penal Code.) He contends there was insufficient evidence he possessed a real gun. Defendant also contends the trial court erred by imposing attorney’s fees without holding a hearing to determine defendant’s ability to pay. (§ 987.8.) We reverse and remand the attorney’s fees order but otherwise affirm the judgment.

1

FACTS AND PROCEEDINGS

Just before 8:30 p.m. on August 29, 2013, Jesse Mejia walked into the store of a local gas station and saw defendant and a second man standing at the cash register. Mejia recognized defendant as someone he had seen about five times driving too fast around the neighborhood. Mejia saw defendant holding a shiny revolver in his hand. Defendant flashed the gun and said, “I keep mines with me.” Although Mejia was unfamiliar with guns and would not know if a gun were real, he believed it was real and was scared. After a few seconds, defendant put the gun away into his waistband. Defendant and his companion left the store, returned to the gas pumps, and began interacting with a group of individuals at the pumps. Mejia completed his purchases and returned to his car parked in front of the store, where his girlfriend and five children were waiting for him. Mejia’s girlfriend said defendant had “mean mugged [the] whole car” and stared at her as he left the store, then Mejia told his girlfriend he had seen defendant holding a gun. They decided to call 911. The police arrived within five minutes of the 911 call. They detained defendant, who matched Mejia’s description of the man with the gun, and five other individuals who were with defendant. The police searched defendant, his vehicle (which was parked near the gas pumps), and two of defendant’s associates, but did not find a gun. There was also a blue Porsche SUV parked near the gas pumps, unlocked and with the windows down. The Porsche belonged to Joshua Carter, who was not at the scene. Joshua’s brother, Romaine Carter, was at the scene and was one of the six individuals police initially detained. During the entire hour and a half the police were there, no one retrieved or moved the Porsche. The police interviewed the gas station store clerk, Kambez Nawabi, who was acting apprehensively and initially told them defendant had come into the store but nothing had happened. The police then phoned Mejia, who reiterated defendant had