People v. Vierra CA3

Filed 12/15/21 P. v. Vierra CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C093196

Plaintiff and Respondent, (Super. Ct. No. 17F4853)

v.

MICHAEL DOUGLAS VIERRA,

Defendant and Appellant.

A jury found defendant Michael Douglas Vierra guilty of possession of a firearm by a felon and receiving stolen property. Defendant argues the trial court erred because it failed to inform the jury that mere proximity and access to the firearm was not enough to show defendant possessed a firearm. Further, defendant claims the instructions given did not require the jury to find that he knowingly possessed the firearm. Defendant further argues his attorney rendered ineffective assistance of counsel because he did not request the proximity instruction. We shall affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND When Debbie W. returned home from work, she noticed her garage door was open. When she entered the garage, she saw that her gun safe was missing. Debbie’s daughter, Angela F., kept four registered firearms in her mother’s gun safe. In all, the gun safe contained six firearms when it was taken. Debbie went into her house and found it had been ransacked. Debbie testified a carpet, some jewelry, and other miscellaneous items were missing. A seventh firearm, which was kept in the house, had also been taken. Dustin G. was Angela’s boyfriend. Debbie told Dustin about the burglary. Dustin asked his friend, Filipe D., to ask around about any guns for sale. Dustin had known defendant for many years, as defendant was a childhood friend of Dustin’s brother. At the time, defendant was living in the garage of a house that belonged to his grandmother on Victor Street. The next day, Dustin and Filipe went to the Victor Street garage. Dustin knocked on the door. When no one answered the door, Dustin looked into a window of the garage. Dustin saw the gun safe on the floor and the carpet that was taken from Debbie’s home. He banged on the door again. Defendant opened the door. Dustin told defendant he knew the stolen property was in the garage because he could see it. Defendant said he did not want the police involved and Dustin said he would not call them. Dustin told defendant he was taking the stolen property back. Dustin and Filipe went into the garage and defendant started gathering things. Defendant apologized to Dustin and said he had no idea Dustin or his family was involved and that he did not bring the stuff to the garage. Defendant was taking things down from shelves, out of his pockets, and out of the car in the garage. Defendant directed Dustin and Filipe to where things were located. Dustin and Filipe put the stolen items into a large black duffel bag. Defendant handed Dustin jewelry and other items, but as to the firearms, he just pointed them out and Filipe loaded them into the black bag.