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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry Cleveland PHILLIPS, Defendant and Appellant.

Cr. 3774.

Decided: August 12, 1970

James H. Miller, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen. and Diana C. Woodward, Deputy Atty. Gen., for plaintiff and respondent.

Henry C. Phillips possessed a sawed-off shotgun, and was convicted for violating Penal Code section 12020.

After the gun was taken from Phillips in a cafe tussle the cafe cook, Mildred Malone, asked Phillips why he had come to the cafe with a gun. He answered some people had tried to rob him that night. This answer was admissible as an admission he intended to exercise dominion and control over the weapon (Evid.Code s 1220).

Testimony Phillips appeared to be reaching for the shotgun's trigger was properly admitted as factual and within the witness' personal knowledge (Evid.Code s 702).

The crime is possessing a sawed-off shotgun, not requiring its criminal use (People v. Stinson, 8 Cal.App.3d 497, 501, 87 Cal.Rptr. 537; People v. Wasley, 245 Cal.App.2d 383, 385, 386, 53 Cal.Rptr. 877).

Judgment affirmed.

GERALD BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur.

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