People v. Timmons CA2/1

Filed 8/24/16 P. v. Timmons CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B265441

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA065322) v.

ROGER M. TIMMONS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew E. Cooper, Judge. Affirmed as modified. Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent. ____________________________

Roger Timmons was convicted of two counts of unlawful firearm activity. (Pen. Code, § 29815, subd. (a).) On appeal, he contends the trial court erred in failing to identify each element of the offense separately when instructing the jury that it must find the prosecution proved Timmons committed the offense beyond a reasonable doubt, which effectively permitted the jury to convict him if it found some but not all of the elements were proven beyond a reasonable doubt. Timmons also contends he is entitled to three additional days of custody credit. We conclude he is entitled to the three additional days of credit, but otherwise affirm. BACKGROUND In 2014, a court ordered Timmons not to own, use, or possess a firearm for 10 years. On May 11, 2014, Mary Delong, who shared a duplex with Timmons, heard two gunshots outside her bedroom door and then heard a third party tell Timmons to give him the gun. On November 11, 2014, Delong saw Timmons holding a gun. Timmons pleaded not guilty to two counts of unlawful firearm activity and was tried by a jury. (Pen. Code, § 29815, subd. (a).)1 The court instructed the jury that Timmons was “charged in counts 1 and 3 with unlawfully possessing a firearm. To prove that the defendant is guilty of this crime, the People must prove that: “1: The defendant possessed the firearm; “2: The defendant knew that he possessed a firearm; and “3: A court had ordered that the defendant not possess a firearm.” The trial court also instructed the jury that a “defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant