People v. Neal

240 Cal. Rptr. 3d 629, 29 Cal. App. 5th 820
CourtCalifornia Court of Appeal, 5th District
DecidedNovember 30, 2018
DocketA153101
StatusPublished
Cited by11 cases

This text of 240 Cal. Rptr. 3d 629 (People v. Neal) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Neal, 240 Cal. Rptr. 3d 629, 29 Cal. App. 5th 820 (Cal. Ct. App. 2018).

Opinion

Kline, P.J.

*821Appellant John David Neal (appellant) appeals from a judgment convicting him of possession of a firearm by an ex-felon ( Pen. Code, § 29800, subd. (a)(1) ),1 claiming evidence regarding firearms taken from his home by the police should have been suppressed as the fruit of an unconstitutional warrantless search. Appellant also contends that the probation supervision fee he was ordered to pay was improperly imposed by the trial court without any determination of his ability to pay it.

*822We shall reject the first claim but find that the second is meritorious.

THE FACTS

After the jury was selected, trial was completed in a single day. Antioch Police Officer Randall Gragg was the sole witness for the People and appellant the sole defense witness.

Officer Gragg testified that on the evening of December 22, 2014, he and his field training officer, Corporal Shawn Morin, were informed by radio that a man at the Antioch Marina was acting in a possibly suicidal manner. When they arrived at the marina, Officer Gragg observed appellant talking to Antioch Police Sergeant Schnitzius. Appellant told Schnitzius he was previously in the military and had been a police officer and possessed police and military weapons at his home in Antioch. Because appellant appeared upset and fluctuated between moments of calmness and *631frustration, he was transported to a hospital to be psychologically evaluated.2

Officers Gragg and Morin then went to appellant's residence to learn whether it contained the weapons appellant mentioned to the police. They arrived and were met by appellant's wife, Mimi Neal (Neal). Officer Gragg asked her whether she was aware of any firearms in the house. She told them she was and "said something to the effect of, yes, I don't want these guns in my house." Neal led the two officers to the master bedroom and asked them to look into a walk-in closet where they found six firearms: "four long guns, two rifles and two shotguns." The officers collected the firearms for safekeeping and provided Neal a property receipt.

When the officers returned to the police department, Officer Gragg conducted a check of appellant's criminal history and found he had a prior felony conviction for assault in 2006. Concluding appellant was a convicted felon in possession of firearms, Gragg contacted "evidence personnel" and advised them that the firearms taken from appellant's home were now being used for "evidentiary purposes," not for safekeeping.

Later, Officer Morin received a voicemail on a police department phone from appellant sarcastically thanking him for taking his firearms and inquiring about how he could get them back. Appellant stated that the guns belonged to him and he intended to give them as Christmas presents to his children. Officer Morin recorded the voicemail, and it was played for the jury.

Appellant testified that he went to the Antioch Marina to clear his head of concerns about family matters. Shortly after he arrived, he was approached by *823a police officer (Sergeant Schnitzius) who asked his name and what he was doing at the pier. He spoke freely to the officer because he had nothing to hide, and told him that his father had recently died and this was the first Christmas he had spent without his father. He also stated that he just received the bulk of his father's estate and this "was just bringing up a lot of memories." When the officer asked whether he possessed a weapon or there was one in his vehicle appellant answered "no" but added that he did have weapons at home that were "part of the probate estate that had been delivered to the house after the courts had settled what they called a disposition of possession of property."

On December 23, the day after he spoke with police officers at the Marina, appellant went to the Antioch Police Department, "[p]artly to see what I needed to do next when I found out that morning that the guns had been removed from the house. Partly to vent some frustration on the following events after they were [re]moved." Appellant testified that he "was trying to retrieve my father's property to be given to family members that were coming from both out of state and out of the area to meet up for the holidays." Appellant admitted that he had not provided the information about giving the guns to other family members in the voicemail he left for Officer Morin, but he stated that he had given this information to Officer Pfeiffer, another Antioch police officer.

On cross-examination appellant admitted his prior felony conviction and the authenticity of the plea form he executed that was the basis of that conviction. However, he testified that when he signed the plea form he understood that the specific rights he lost while on probation, including the prohibition of the possession of firearms, *632would be returned to him following his successful completion of probation, as was his right to vote.

The jury convicted appellant of the sole charge of possession of a firearm by an ex-felon, and the court suspended imposition of sentence and placed appellant on probation for three years.

The report and recommendation of the probation officer recommended that appellant be placed on probation and, among other things, also recommended that appellant pay for the cost of probation supervision as determined by the probation officer but not to exceed $75 per month. The report contains no analysis of appellant's financial ability to pay that amount.

*824I.

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Cite This Page — Counsel Stack

Bluebook (online)
240 Cal. Rptr. 3d 629, 29 Cal. App. 5th 820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-neal-calctapp5d-2018.