P. v. Lacy CA1/1

Filed 5/31/13 P. v. Lacy CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A136547 v. COY LACY, (Solano County Super. Ct. No. VCR204923) Defendant and Appellant.

Defendant appeals from the revocation of his felony probation, contending that insufficient evidence was introduced at the contested probation revocation hearing to sustain either alleged violation. We disagree and affirm. I. Background In December of 2008, defendant pleaded guilty to second degree robbery (Pen. Code, § 211), and in February of 2009 he was placed on three years of felony probation. A standard condition of his probation was that he obey all laws. On September 12, 2011, the district attorney filed a request to revoke defendant’s probation, alleging that he possessed a firearm and shot into an occupied dwelling.1 The underlying facts also led to the filing of a felony complaint charging defendant with shooting at an inhabited dwelling (Pen. Code, § 246), and felon in possession of a firearm (Pen. Code, § 12021) with prior conviction allegations. Defendant was held to answer on these charges on

1 Defendant’s probation had previously been revoked, based upon his possession of marijuana, in 2010. His probation was reinstated and he was ordered to serve 60 days in county jail.

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October 28, 2011. The new charges were, however, dismissed upon motion of the district attorney after defendant’s probation on the older docket was revoked. Evidence adduced at the probation revocation hearing2 included the testimony of a civilian witness, Miguel Buchwald, who testified that he was driving on Curtola Boulevard in Vallejo on September 8, 2011, at approximately 11:30 in the morning, when he heard sounds similar to three or four gunshots. He saw a man with a gun in his hand, running from Marin Street towards Sonoma Boulevard. The individual was African- American, five feet eight to five feet nine inches tall, wearing a blue outfit. The gun appeared to be a flat gun; not a revolver, but a handgun. The person with the gun was running in the same direction Buchwald was driving, so Buchwald took some photos of him with his cell phone, from behind. Copies of these photographs were introduced at the probation revocation hearing. Buchwald continued to follow the individual with the gun a block beyond Sonoma Boulevard; the person turned towards Sutter Street. Buchwald was unable to directly follow due to a barrier in the road, but he went to the next street, made a U-turn, came back and turned right on Sutter Street. He drove a block or two up Sutter Street and saw that the police had apprehended “that same person or what looked to be the same person, based on his dress.” The individual the police had detained was an African-American man “that was wearing the same kind of clothing” that Buchwald had observed on the person fleeing with the gun. The height and weight were the same or similar, and the person had the same build. Buchwald got out of his car and told the officers that he had taken some photos; he later e-mailed them to the police. Buchwald never saw the face of the individual at the time the person was running with the gun; he only observed him from behind and from 30–50 feet away. He did later observe the face of the individual when the police had him detained. He only lost sight of the person with the gun for 45–60 seconds. When he observed the person with the police,