People v. Sevillamull CA6 ( 2023 )

Filed 6/12/23 P. v. Sevillamull CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050497
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2114194)
v.
JOSIAH SEVILLAMULL,
Defendant and Appellant.
I. INTRODUCTION
Defendant Josiah Sevillamull pleaded no contest to possession of a firearm by a
felon (Pen. Code, § 29800, subd. (a)(1))1 and admitted allegations that he was released on
his own recognizance at the time of the offense (§ 12022.1, subd. (b)) and that he had
suffered a prior strike conviction (§ 1170.12, subd. (b)(1)). The trial court sentenced
defendant to 16 months in prison, which was deemed satisfied based on custody credits.
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts but raises no issue.
We notified defendant of his right to submit written argument on his own behalf within
30 days. That period has elapsed, and we have received no response from defendant.
1 All further statutory references are to the Penal Code unless otherwise indicated.
Following the California Supreme Court’s direction in People v. Kelly (2006)
40 Cal.4th 106 (Kelly) at page 110, we provide a brief description of the facts and the
procedural history of the case.
II. BACKGROUND
A. Factual Background
In October 2021, around 3:00 a.m., San Jose police responded to a report of an
active burglary at an elementary school. A security guard at the school saw two males
inside a classroom taking items. The security guard reported to the arriving police officer
that the males had walked towards the rear of the school. The guard believed the two
males were under 18 years old. The guard reported that the males were wearing black
face masks, black “[h]oodie[s],” and backpacks. According to an initial call report, the
backpacks were described as black and red. Officers did not find the males inside the
school but located iPads on the ground on the side of the school.
Another responding police officer parked near an unoccupied Hyundai that was
behind the school. Two of the Hyundai’s windows were open. In addition, the back
window, which appeared to be broken, had a black cloth over it. The seats were reclined
back, and there was an “older generation” iPhone in the middle of the console. The
engine was cool to the touch and had dew on it.
The police called the registered owner of the vehicle. The registered owner, a
father, indicated that his son had possession of the vehicle. The father also indicated that
his son had an older model iPhone.
The police then called the son, who was not entirely forthcoming in his responses.
The son stated that the car had been stolen earlier that night. The son claimed that he did
not think he could report it stolen due to the late hour and that he instead drove around
San Jose for a few hours looking for the car. The officer thought it was odd because San
Jose was a large city and the probability of finding the car would have been “slim to
none.” The son indicated that he had subsequently gone to his home in east San Jose.
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When asked to go to the scene where the car was located, the son indicated that he was
going to get a ride to his father’s house first to get keys. When another officer spoke to
the son, the son was vague in his responses about the circumstances and location of the
vehicle when it was stolen. He also refused to come to the location where the vehicle had
been located. The officer offered to pick him up and take him to the location of the
vehicle. When asked where he was located, the son did not respond. The son indicated
he was going to get a ride from someone else to his father’s house to get a spare key.
The car, a 2013 Hyundai, was a “very uncommon” vehicle to be stolen. There was
no evidence of a forced entry into the vehicle, and there was no evidence the ignition had
been tampered with.
The police went to the father’s house, which was more than five miles from the
school. Subsequently, a vehicle stopped in front of the house, and two young males
exited the vehicle. The males were wearing black face masks, blue hoodies, and a black
backpack and a gray backpack. The lighting in the area was “mediocre,” and the males’
hoodies and backpacks appeared to be “dark-colored.” The school burglary had occurred
approximately two and half hours earlier.
The male with the black backpack was the son who police had talked to over the
phone. The other male with the gray backpack, later identified as defendant, refused to
provide his name. Defendant appeared to be a juvenile. Defendant eventually provided
his aunt’s name and phone number. By calling the aunt, the police were able to obtain
defendant’s name and date of birth.
When the police first contacted defendant, a cursory pat search was conducted,
and nothing was found. The police told defendant that he was being detained, and he was
placed in a patrol car. The police asked the security guard to drive to the scene for an in-
field identification.
After learning defendant’s name and conducting a records search, the police
determined that he was on “searchable probation.” The police conducted a search of
3
defendant’s backpack, where a loaded magazine was located, and another search of
defendant himself, who had a loaded handgun in his waistband.
B. Procedural Background
Defendant was charged by complaint with possession of a firearm by a felon
(§ 29800, subd. (a)(1)). The complaint also alleged that at the time the offense was
committed, defendant had been released from custody on his own recognizance and the
release had been revoked (§ 12022.1, subd. (b)). The complaint further alleged that
defendant had suffered a prior strike conviction (§ 1170.12, subd. (b)(1)).
Defendant subsequently filed a motion to suppress evidence, arguing that his
initial detention and subsequent search were unlawful. The magistrate heard the motion
to suppress in conjunction with the preliminary hearing. The magistrate denied the
motion, finding there was “sufficient reasonable suspicion to detain [defendant]” based
on the security guard’s description of the burglars and all the circumstances involving the
car behind the school, including the “suspicious explanation about why the car was
there.” The magistrate determined that the discrepancies in the color of the clothing and
backpacks were “not critical,” given the lighting and the males’ clothing appeared to be
dark.
The prosecutor filed an information charging defendant with the same offense and
allegations as the original complaint. On April 19, 2022,2 as part of a global resolution
including several additional cases not before us, defendant in the instant case pleaded no
contest to possession of a firearm by a felon, admitted that he was out on his own
recognizance at the time, and admitted that he had suffered a prior strike conviction.
Defendant entered his plea and admissions with the understanding that the trial court had
2
The abstract of judgment incorrectly states that defendant was convicted on
March 9, 2022. We will order the abstract corrected accordingly.
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indicated a sentence of no more than 32 months. Defendant also anticipated filing a
Romero motion.3
At the sentencing hearing on September 8, 2022, the trial court granted
defendant’s Romero motion to dismiss his prior strike conviction. The court proceeded to
sentence defendant to 16 months in prison which, after custody credits, was deemed
satisfied. The court struck the section 12022.1 enhancement under section 1385. The
court also stayed or waived fines and fees.
C. Appeal
Defendant filed a timely notice of appeal. He did not request a certificate of
probable cause. We appointed counsel to represent defendant in this court.
III. DISCUSSION
Pursuant to Wende, supra, 25 Cal.3d 436, and Kelly, supra, 40 Cal.4th 106, we
have carefully reviewed the entire record. Other than the correction of clerical error, we
conclude that there is no arguable issue on appeal. (Wende, supra, 25 Cal.3d at pp. 441-
443.)
IV. DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered corrected to reflect
that defendant was convicted on April 19, 2022.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
WILSON, J.
BROMBERG, J.
People v. Sevillamull
H050497