P. v. McClain CA2/6

Filed 3/26/13 P. v. McClain CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B240332 (Super. Ct. No. 2011019949) Plaintiff and Respondent, (Ventura County)

v.

GERALD M. McCLAIN,

Defendant and Appellant.

Gerald M. McClain was granted probation with 270 days in the county jail after a jury convicted him of possession of a firearm and ammunition by a felon (Pen. Code §§ 12021, subd. (a)(1)); 12316, subd. (b)(1), and possession of methamphetamine and psilocybin. (Health & Saf. Code, § 11377, subd. (a)). He appeals, contending that evidence of prior drug use was erroneously admitted to show knowledge of the narcotic nature of the drugs seized. We affirm. Facts and Procedural History On June 2, 2011, Ventura Police Officers Miguel Martinez and Anthony Snow were dispatched to 77 West Barnett Street on a disturbance call. Officer Snow was familiar with the house and its owner, appellant. Months earlier, Officer Snow helped a code enforcement officer "yellow-tag" the main house because it was uninhabitable. During the house inspection, appellant threw himself on the ground and yelled "just shoot

me." After appellant calmed down, he said that he would stay in the small guesthouse at the rear of the main house. When Officers Martinez and Snow responded to the June 2, 2011 disturbance call, the front door to the main house was ajar. The house was unoccupied and cluttered. As the officers approached the small guesthouse, they heard a loud television and movement. The officers knocked three times and opened the screen door to see if anyone was hurt or needed assistance. Appellant was hiding behind the bedroom door, reluctantly came out, and said that he lived there. Appellant stood outside as the officers conducted a protective sweep. A holstered handgun was in plain view on the couch and appellant's wallet and mail were on a coffee table in front of the couch. Knowing that appellant was a convicted felon, the officers searched for weapons and found two rifles and a loaded Ruger revolver. The revolver had four live bullets and one spent round. Empty gun holsters were on the bedroom floor and live ammo was scattered throughout the room. In the top dresser drawer, Officer Martinez found a tray with methamphetamine residue, two digital scales, a straw, and an empty plastic baggie. Three plastic baggies containing psilocybin mushrooms and pills were in a small wood chest. Appellant defended on the theory that the drugs, guns, and ammo belonged to 71-year-old Denise Burchette. Burchette said that she used drugs, that she had been appellant's girlfriend for 17 years, and that she lived alone in the guesthouse. On cross- examination, Burchette admitted that she received mail at a second address on Channel Drive in Ventura and loved appellant enough to lie for him. A neighbor, Robert Silvar, testified appellant and Burchette were living in the guesthouse. Silvar had an unobstructed view of the guesthouse and saw appellant enter the guesthouse night and day and stay inside for long periods of time.