People v. Aguirre CA4/1

Filed 9/24/20 P. v. Aguirre CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077164

Plaintiff and Respondent,

v. (Super. Ct. No. SCS307634)

ALEJANDRO AGUIRRE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Roderick Shelton, Judge. Affirmed as modified and remanded with directions. Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Lise Jacobson and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Alejandro Aguirre of resisting an executive officer

(Pen. Code,1 § 69); battery on a peace officer (§ 243, subd. (b)); possession of a controlled substance (Health and Saf. Code, § 11350, subd. (a)); possession of drug paraphernalia (Health and Saf. Code, § 11364); and possessing a stun gun (§ 22610, subd. (a)). The court found true an alleged prison prior (§ 667.5, subd. (b)). The court sentenced Aguirre to the two-year midterm for resisting an officer. The remaining counts were sentenced concurrently with the section 69 term. The court struck the prison prior and imposed a split sentence of 16 months in custody and eight months under mandatory supervision. Aguirre appeals, contending the evidence is not enough to prove he possessed a vest containing heroin and a stun gun. Aguirre also contends the court’s written order imposing an electronic search condition is invalid. The People concede the court erred in the manner of the imposition of the search condition because such condition was not orally imposed by the court at sentencing. In any event, the People observe the condition is not likely proper under the facts of this case and asks the court to strike the search condition. Otherwise, the People argue there is enough evidence to prove Aguirre possessed the vest. We will agree with the parties regarding the search condition and remand the case to the trial court with directions to strike it. Otherwise, we will find the record contains enough evidence to support the jury’s findings.