Angel Munoz v The State Of Oklahoma

F-2018-900

Filed: Jan. 9, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Angel Munoz appealed his conviction for Possession of a Firearm while on probation. Conviction and sentence: ten years in prison. Judge Hudson dissented.

Decision

The order of the District Court of Oklahoma County accelerating Appellant's deferred judgment and sentencing in Case No. CF-2016-701 is AFFIRMED, but REMANDED to the District Court to address Appellant's Proposition II. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there sufficient competent evidence to prove Appellant violated probation by possessing a firearm while on probation?
• Did the trial court abuse its discretion in accelerating Appellant's deferred judgment and sentencing?
• Should the acceleration of deferred judgment and sentence be corrected to reflect the correct offense Appellant was convicted of?

Findings

• the court erred in finding sufficient evidence to support the violation of probation for possession of a firearm
• the decision is remanded to the District Court to correct the judgment and sentence to reflect the correct charge

F-2018-900

Jan. 9, 2020

Angel Munoz

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Appellant, Angel Munoz, appeals from the acceleration of his deferred judgment and sentencing in Case No. CF-2016-701 in the District Court of Oklahoma County, by the Honorable Glenn M. Jones, District Judge.

On March 7, 2018, Appellant entered a plea of guilty to Count 1: Assault and Battery With a Dangerous Weapon, and sentencing was deferred for a period of five years, until March 6, 2023, under rules and conditions of probation. On June 26, 2018, the State filed an application to accelerate Appellant’s deferred judgment and sentencing alleging he violated probation by committing the new crime of Possession of a Firearm, after former conviction of a felony, as charged in Oklahoma County District Court Case No. CF-2018-2625. On August 21, 2018, the State filed an amended application to accelerate Appellant’s deferred judgment and sentencing alleging he violated probation by committing the new crime of Possession of a Firearm while on probation as charged in Oklahoma County District Court Case No. CF-2018-2625.

On August 21, 2018, the hearing on the application to accelerate was held before Judge Jones. The State called Appellant’s probation officer, Tammera Saavedra (Officer Saavedra). On April 13, 2018, Officer Saavedra conducted a home visit she scheduled with Appellant, at the address he had listed as his residence.^1 Officer Saavedra was only interested in verifying where Appellant was staying, and asked him which bedroom was his. Appellant informed her that he was actually staying in the garage. Officer Saavedra entered the garage and saw a bed, a TV cabinet, some clothing and other things. Officer Saavedra immediately noticed two boxes of nine millimeter ammunition in plain view. Officer Saavedra saw something protruding from under a pillow and found a nine millimeter semiautomatic pistol that was loaded. On the cabinet next to the bed, Officer Saavedra found Appellant’s State of Oklahoma ID card, one of Officer Saavedra’s business cards, and Appellant’s bank debit card. Officer Saavedra also saw male clothing strewn about the area. Officer Saavedra then went back outside and arrested Appellant for possessing the firearm. When he was being booked into the County Jail, Officer Saavedra chided Appellant about having a gun around his sister’s children. Appellant responded that he would put the gun in the attic when he was not there to watch it.

After Officer Saavedra’s testimony, the State rested. In defense, Appellant first called Arturo Plascencia (Plascencia), Appellant’s brother-in-law and owner of the house where Officer Saavedra conducted the home visit. Plascencia testified he lived at the house with his wife and three young daughters. He also testified he owned a gun that was kept hidden in the house. Plascencia said a friend had lived in the garage until his wife found that the friend possessed a gun. Plascencia testified the friend was kicked out about a week and a half before Appellant first stayed at the house. Plascencia testified that Appellant always stayed in one of the bedrooms and had never stayed in the garage.

Appellant then testified and acknowledged that he gave the probation office his sister’s address as his residence, but said he hadn’t lived there until recently. Appellant said he knew about Officer Saavedra’s scheduled visit, but had been told by his sister not to let anyone in the house. Appellant testified he finally relented to Officer Saavedra’s requests to enter the house, but told her that nothing in the house belonged to him. Appellant testified he slept in the living room when he stayed at his sister’s house. Appellant said that, on the morning of Officer Saavedra’s visit, he worked out with weights in the garage and had left his ID on the cabinet next to the bed. After his testimony, Appellant rested.

After hearing evidence and arguments, Judge Jones noted Officer Saavedra’s testimony that Appellant admitted living in the garage when the gun was found. Judge Jones also noted the brother-in-law’s testimony that the other man had not lived in the garage for a week and a half before Appellant started staying at the house. Judge Jones found that other evidence of Appellant’s dominion and control over the room in the garage included his ID card, Officer Saavedra’s business card, Appellant’s bank debit card, and men’s clothing similar to what Appellant wore. Judge Jones found Appellant had violated probation as alleged. Because of the seriousness of the original crime and the lenience Appellant had received, Judge Jones accepted the State’s recommendation and convicted and sentenced Appellant to a term of ten years.

Appellant appeals asserting two propositions of error:

PROPOSITION I: THE TRIAL COURT ABUSED ITS DISCRETION IN ACCELERATING MR. MUNOZ’S SENTENCING WHEN THE STATE FAILED TO PRESENT SUFFICIENT COMPETENT EVIDENCE TO PROVE ALL THE ELEMENTS OF THE NEW OFFENSE OF POSSESSION OF A FIREARM WHILE ON PROBATION.

PROPOSITION II: THE ACCELERATION OF DEFERRED JUDGMENT AND SENTENCE SHOULD BE CORRECTED TO REFLECT THE OFFENSE FOR WHICH APPELLANT WAS CONVICTED.

ANALYSIS

In Proposition I, Appellant argues the State presented insufficient competent evidence to prove either that Appellant actually lived at the house where the firearm was found, or that he actually knew of the presence of the firearm. Appellant must prove that no rational trier of fact could have found the essential elements of his alleged violation of probation by a preponderance of the evidence. Hogan U. State, 2006 OK CR 19, I 21, 139 P.3d 907, 919 (all sufficiency of the evidence claims are reviewed under the standard established in Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04); Whit- aker U. State, 2015 OK CR 1, I 5, 341 P.3d 87, 89 (probation violations must be proven by a preponderance of the evidence).

Evidence presented at the acceleration hearing showed that Appellant admitted staying in the garage when and where the firearm was found. Evidence found by Officer Saavedra supported a finding that Appellant was staying in the garage and thus had dominion and control over the area. Two boxes of nine millimeter ammunition were in plain view, and the nine millimeter firearm was found under the pillow on Appellant’s bed. Appellant even admitted possessing the firearm. Even though the testimony of Appellant and his brother-in-law conflicted with that of Officer Saavedra, the credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts. Rutan U. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849; see also McGuire v. State, 1986 OK CR 102, I 5, 721 P.2d 817, 818.

Appellant has clearly not established that Judge Jones was irrational in finding by a preponderance of the evidence that Appellant actually lived at the house where the firearm was found, and that Appellant had the firearm both at his residence and in his possession or immediate control. Hogan, supra; 21 O.S.Supp.2014, § 1283(C).

In Proposition II, Appellant claims that the Acceleration of Deferred Sentence Judgment and Sentence, entered by the District Court after acceleration, should be corrected to state that Appellant entered a plea of guilty to Assault and Battery With a Dangerous Weapon, rather than stating he entered a plea of guilty to Assault and Battery With a Deadly Weapon. The State contends that the District Court has not addressed the matter. We find this matter should be remanded to the District Court with instructions to address Appellant’s request for correction of the Judgment and Sentence. See Sears v. State, 2019 OK CR 8, 99 7-8, P.3d , 2019 WL 2128412.

DECISION

The order of the District Court of Oklahoma County accelerating Appellant’s deferred judgment and sentencing in Case No. CF-2016-701 is AFFIRMED, but REMANDED to the District Court to address Appellant’s Proposition II. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020), the MANDATE is ORDERED issued upon the filing of this decision.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE GLENN M. JONES, DISTRICT JUDGE

APPEARANCES ON APPEAL

COUNSEL FOR APPELLANT

KENNETH C. WATSON
Attorney at Law
119 N. Robinson, Suite 640
Oklahoma City, OK 73102

NANCY WALKER-JOHNSON
Appellate Defense Counsel
P. O. Box 926
Norman, OK 73070

COUNSEL FOR THE STATE

TIFFANY NOBLE
Assistant District Attorney
505 County Office Building
320 Robert S. Kerr Ave.
Oklahoma City, OK 73102

MIKE HUNTER
Attorney General of Oklahoma
DIANE L. SLAYTON
Assistant Attorney General
313 N.E. 21st Street
Oklahoma City, OK 73105

OPINION BY: LEWIS, P.J.:
KUEHN, V.P.J.: Concur
LUMPKIN, J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: Concur

Click Here To Download PDF

Footnotes:

1. The residence belonged to Appellant's sister and her family.
2. Hogan U. State, 2006 OK CR 19, "I 21, 139 P.3d 907, 919 (all sufficiency of the evidence claims are reviewed under the standard established in Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04); Whit- aker U. State, 2015 OK CR 1, I 5, 341 P.3d 87, 89 (probation viola- tions must be proven by a preponderance of the evidence).
3. 21 O.S.Supp.2014, § 1283(C).
4. Sears v. State, 2019 OK CR 8, 99 7-8, P.3d , 2019 WL 2128412.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Assault and Battery With a Dangerous Weapon
• Okla. Stat. tit. 21 § 1283(C) - Possession of a Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 22 § 3.15 - Mandate Procedures in Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Hogan v. State, 2006 OK CR 19, I 21, 139 P.3d 907, 919
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Whitaker v. State, 2015 OK CR 1, I 5, 341 P.3d 87, 89
• Rutan v. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849
• McGuire v. State, 1986 OK CR 102, I 5, 721 P.2d 817, 818
• Sears v. State, 2019 OK CR 8, 99 7-8, P.3d, 2019 WL 2128412