People v. Main

• Decision Date: 14 March 2017
• Docket Number: F071629
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAKOB AARON MAIN, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JAKOB AARON MAIN, Defendant and Appellant.

F071629

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

March 14, 2017

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CRF46086)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Jakob Aaron Main was convicted of possession of a firearm by a felon, misdemeanor possession of a controlled substance, i.e., hydrocodone pills, and misdemeanor possession of a narcotics smoking device. He was sentenced to an aggregate term of 10 years in prison. His sentence for possession of a firearm by a felon was doubled based on the trial court's finding that he had suffered a prior strike conviction within the meaning of the Three Strikes Law.

Main challenges, for insufficiency of evidence, his convictions for possession of a firearm by a felon and possession of a narcotics smoking device. He also argues that his convictions must be reversed in light of the admission of highly inflammatory evidence—specifically, evidence of a Nazi flag and Nazi-related tattoos on his person—that resulted in an arbitrary and fundamentally unfair trial, in violation of his right to due process. We reject these contentions.

Main further challenges, for insufficiency of evidence, the trial court's true finding on the prior strike enhancement allegation included in the information. We agree that the trial court's true finding on this enhancement allegation, which was made pursuant to the Three Strikes Law, was not supported by sufficient evidence. Accordingly, we strike the true finding on this enhancement allegation, vacate defendant's sentence, and remand the matter for retrial of the enhancement allegation and/or resentencing, consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Main was charged, in a first amended information (information) filed in the Tuolumne County Superior Court, with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)¹; count 1), misdemeanor possession of a controlled substance, i.e., hydrocodone (Health & Saf. Code, § 11350, subd. (a); count 2), andmisdemeanor possession of a device used for smoking a controlled substance (Health & Saf. Code, § 11364.1, subd. (a); count 3). The information further alleged that in 1995, Main had suffered a juvenile adjudication for a strike offense within the meaning of the Three Strikes Law (§ 667, subds. (b)-(i)) and had served multiple prior prison terms (§ 667.5, subd. (b)).

Main was found guilty as charged by a jury. Outside the presence of the jury, Main admitted that he had suffered a prior juvenile adjudication for mayhem in 1995 and had served four prior prison terms. The trial court then determined, in a bench trial, that the juvenile adjudication constituted a strike for sentencing purposes.

Main was sentenced to 10 years in prison: six years on count 1 (the upper term, doubled on the basis of the prior strike) and four years collectively on the four prison priors. The court imposed a concurrent sentence of one year on count 2 and of six months on count 3.

Prosecution case

At about 1:40 p.m. on December 30, 2014, officers from the Tuolumne County Sheriff's Department executed a probation warrant for Main at an apartment on Chukar Circle in Sonora. The law enforcement team included, among others: Deputies Jacob Ostoich, Richard Donaldson, and Matthew Stuart; Sergeants James Oliver and Deborah Moss; Corporal Butler; and two probation officers.²

Upon the team's arrival at the apartment, Sergeant Moss knocked loudly on the door and announced the presence of law enforcement. About three or four minutes later, Elizabeth Roberts answered the door. Roberts asked to see a warrant authorizing the law enforcement action and started to close the door. Deputy Ostoich prevented Roberts from closing the door by sticking his foot in the doorway and pulling her outside. As Ostoichdid so, Roberts made "several spontaneous statements," including something along the lines of "Don't shoot my man. He's inside. He does not have a gun and you guys just recently shot somebody. Don't kill my man." At the time Roberts made this statement, i.e., that Main did not have a gun, none of the officers had mentioned guns or inquired whether Main was armed.

At that point, Deputy Ostoich again announced law enforcement's presence and commanded Main, several times, to come to the door with his hands up. His verbal commands did not elicit a response, prompting officers to enter the apartment. Corporal Butler then ordered Main to present himself. Main responded, "I'm coming outside," and exited a bedroom with his hands up.

Sergeant Oliver and Deputy Stuart entered the bedroom that Main came out of, to conduct a probation search of his belongings. When looking under the bed on his hands and knees, Oliver spotted a "Colt .380 pistol" "just sitting out." Oliver described the pistol as a "small silver handgun." He explained the bed was placed against a wall, and the gun was "maybe a foot or foot and a half back" from the accessible edge of the bed; it "wasn't covered up or hidden or anything." Deputy Stuart testified that the gun was "maybe a foot" from the accessible edge of the bed. The gun was in a holster and was ready to fire: it was loaded with four rounds in the magazine and one in the chamber, "the magazine was inserted and the slide was forward." Stuart "rendered the firearm safe" by "remov[ing] the magazine from the gun and taking the cartridge out and then locking the slide to the rear to make sure that the chamber [was] clear of any rounds or cartridges." Oliver and Stuart also found a glass pipe "commonly used to smoke methamphetamine" next to the gun,³ as well as four hydrocodone pills wrapped in cellophane on a table bythe bed.⁴ The glass pipe had "some white residue in it which is common for methamphetamine." Two suitcases, at least one of which contained "a large amount of women's clothing," were also in the bedroom.⁵

A picture of Main and a little girl was hanging in the bedroom Main had emerged from; a Nazi flag (a flag depicting a swastika) was also hanging on a wall in the same room. Main had a number of tattoos of Nazi symbols on his head and body, including a swastika tattoo on his chest, as reflected in booking photos.

Deputy Donaldson questioned Roberts in the apartment's living room; he was mainly seeking to determine whether Main and/or Roberts lived at the apartment. The living room contained a large pile of laundry, and, during the questioning, Roberts reached into the pile to grab some socks to put on. Roberts said she was Main's girlfriend. Roberts said the apartment belonged to Elizabeth Main, Main's mother, who was not home at the time. She explained, initially, that she and Main had just "stopped by" the apartment. Donaldson asked Roberts, "why she would have a large pile of laundry inside the apartment if she had only stopped by?" Roberts then changed her story, stating that she and Main "had been there for a couple of days." However, "she was pretty adamant they didn't live there." Donaldson asked Roberts for her identification; at Roberts's direction, Donaldson found the identification in a suitcase in the bedroom.

The parties stipulated that Main "had been duly and legally convicted of a felony or felonies."Defense case

Roberts, age 29, was the only witness called by the defense. At the time, Roberts was detained at the Calaveras County Jail but was transported to court to testify. Roberts provided a very different account at trial than the statement she gave to Deputy Donaldson at the apartment.

For one thing, in contrast to her prior statement that the Chukar Circle apartment belonged to Main's mother, Elizabeth Main, at trial Roberts testified that the apartment was her own mother's home. She explained that Elizabeth Main was her own mother, not Main's mother, and that she used the last name "Main" on account of her relatively recent marriage to Main's lately-deceased uncle, James Main. She described her mother's full name as "Elizabeth Kay Roberts or Main."

Roberts testified that she had known Main for 19 years. Since August 2014, Main had been her boyfriend. At the time of the incident underlying the instant case, Main and Roberts were living in separate rooms at the Black Bart Hotel in San Andreas.

Roberts testified that the .380 Colt pistol recovered from the Chukar Circle apartment was her gun. She purchased it in May 2014 for $60 through a friend in Amador County, Sandy Roberts, for safety reasons.⁶ Roberts had told Main she owned a gun but had never shown it to him, nor let him possess or shoot it, because, as a felon, he could not have "a gun around him." Indeed, shortly after Roberts and Main started dating in August 2014, she put the gun in a locked box and buried it five feet underground on a friend's property in the Ponderosa area of Sonora. Roberts could not remember the exact address for, or the names of any streets bounding, the property where the gun was buried. Nor could she remember the full name of the friend who owned the property.

Roberts arrived at her mother's apartment in the "late evening," about 7:00 p.m. or 8:00 p.m., on December 29, 2014, bringing dirty laundry with her. A friend had driven both Roberts and Main to Sonora; Roberts got "dropped...