Filed 12/12/19 P. v. Romero CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS ANAYA ROMERO,

Defendant and Appellant.

F078737

(Super. Ct. No. BF173094A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge.

Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant Thomas Anaya Romero of unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)/count 1) and receipt of a large capacity magazine (§ 32310, subd. (a)/count 2). In a separate proceeding, the court found true an allegation that Romero had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)‒(i)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

On July 10, 2018, at approximately 9:50 p.m., several Kern County probation officers went to a house where Romero lived to conduct a probation search. Officer Aubrey Wimberly knocked on the front door and Romero answered in his boxers. Wimberly allowed Romero to go to the northeast bedroom, where he and his girlfriend stayed, to get clothes. He then had Romero, his girlfriend, and their two children sit in the living room while the officers searched the house.

Officer Cesar Rivera searched the northeast bedroom. Under a towel on a dresser, Rivera found a high capacity magazine capable of holding 30 bullets that contained 24 nine-millimeter bullets and a nine-millimeter bullet lying next to the magazine.

Wimberly took Romero to the northeast bedroom. When Wimberly told Romero they had found ammunition and a high capacity magazine in the room, Romero looked in the direction of the dresser, even though Wimberly had not told Romero where those items were found.

Probation Supervisor Elizabeth Madden searched a bedroom on the southside of the house. In a desk drawer, she found a magazine containing two .380-caliber bullets. In another room, she found a nine-millimeter bullet in a laundry basket.

On August 14, 2018, the Kern County District Attorney filed an information that charged Romero with two prior prison term enhancements, in addition to the offenses he was convicted of and the prior strike conviction that was found true.

On November 28, 2018, after the court denied Romero’s motion to dismiss count 2, the jury found him guilty on both counts. The court then found the prior strike allegation true and the prior prison term enhancements not true.

On January 9, 2019, the court denied Romero’s motion to dismiss his prior strike conviction and sentenced him to a doubled, aggravated prison term of six years on count 1 and a stayed term on count 2.

On January 28, 2019, Romero filed a timely appeal.

Romero’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a letter filed on September 13, 2019, Romero contends the evidence is insufficient to sustain his conviction on the two counts because: (1) defense witnesses testified the ammunition and magazines belonged to his nephew John Sanchez; (2) no fingerprints were taken off these items; and (3) the prosecution witness’s testimony that the high capacity magazine had no markings on it did not establish that he received the high capacity magazine after January 1, 2014, which the court instructed the jury the prosecutor had to prove for the jury to find Romero guilty of a felony violation of section 32310, subdivision (a). Romero also contends the judge who presided over his trial had a conflict of interest because he knew one of the juror’s parents and that defense counsel provided ineffective representation by his failure to object to the judge presiding over Romero’s trial. There is no merit to these contentions.

“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 715.) We also resolve all conflicts in the evidence and draw all reasonable inferences in support of the jury’s determination.

(People v. Honig (1996) 48 Cal.App.4th 289, 350.)

To convict Romero of unlawful possession of ammunition and receipt of a high capacity magazine, the prosecutor had to prove Romero possessed the ammunition and the magazine, he knew he possessed these items, and he knew the objects he possessed were ammunition and a high capacity magazine. (CALCRIM No. 2500.) Further, per the court’s instruction to the jury, to prove a felonious possession of the high capacity magazine the prosecutor had to prove Romero received the high capacity magazine after January 1, 2014. (CALCRIM No. 2500.)

A single bullet and a high capacity magazine containing 24 bullets were found in Romero’s room, on top of a dresser, covered by a towel. Romero looked towards the dresser before being told that was where the bullet and the magazine were found. Another magazine containing ammunition and a single bullet were found in other rooms of the house. Romero did not provide a reasonable, innocent explanation for how the ammunition and magazines got in his house or in his room (see, infra). Even though there was no evidence proving that Romero’s fingerprints were on the ammunition or magazines, the jury could reasonably find from the above circumstances that Romero possessed the ammunition and magazines found in his house, that he knew he possessed them, and that he knew the items he possessed were ammunition and a high capacity magazine. Additionally, as argued by the prosecutor, the jury could reasonably find from the pristine condition of the high capacity magazine, that Romero received that magazine after January 1, 2014. Thus, the evidence was sufficient to sustain Romero’s convictions for possession of ammunition and felonious possession of a high capacity magazine.

“ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness … under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. .…” [Citations.]’ ” (In re Harris (1993) 5 Cal.4th 813, 832‒833.)

Code of Civil Procedure section 170.1 provides defendants with a statutory right to an impartial judge. That section allows a judge to be disqualified on numerous grounds, including the only one that appears might be applicable here, i.e., if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (§ 170.1, subd. (a)(6)(iii).)

“ ‘[T]he [federal] due process clause operates more narrowly’ than Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) and justifies judicial disqualification only under the ‘ “most ‘extreme facts.’ ” ’ [Citations.] To establish a federal due process violation, ‘ “there must exist ‘ “the probability of actual bias on the part of the

judge.” ’ ” ’ ” (People v. Peoples (2016) 62 Cal.4th 718, 787.)

Romero does not explain why a person aware of the facts might reasonably entertain a doubt that the judge who presided over his trial was not impartial simply because, in the past, he was acquainted with the parents of one juror. Thus, he has not shown defense counsel provided deficient representation by his failure to move on statutory grounds to disqualify the judge who presided over his trial or on the more stringent federal constitutional grounds.

Nor does Romero explain how he was prejudiced by defense counsel’s alleged deficient performance considering that the ammunition and high caliber magazine were found on a dresser in his bedroom concealed by a towel and his behavior in looking toward the dresser prior to being informed that the items were found on the dresser. Romero did not dispute this evidence. Instead, during the defense case his nephew testified that in mid-June 2018 he found the ammunition and magazines as he walked from a bar to Romero’s house to spend the night. According to the nephew, without Romero or his girlfriend knowing, he “stashed” the ammunition and magazines in two different locations in the house that he did not recall. However, it was unlikely the high capacity magazine would have gone unnoticed for several weeks under a towel, on a dresser in Romero’s room. Further, the nephew’s testimony was undermined by his admission to a defense investigator that he drank 12‒13 beers and shots of liquor at the bar prior to allegedly finding the ammunition and magazines and hiding them at Romero’s house. Since the evidence of Romero’s guilt was strong and Romero does not explain how the court’s past acquaintance with one of the juror’s parents adversely affected his trial, he also has not met his burden of showing he was prejudiced by defense counsel’s alleged deficient performance. Accordingly, we reject Romero’s ineffective assistance of counsel claim.

Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.