P. v. Fierro
Filed 10/3/13
P. v. Fierro CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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 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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND MATTHEW
FIERRO,
Defendant and Appellant.
E055731
(Super.Ct.No. RIF1101127)
OPINION
APPEAL
from the Superior Court of
County. Jeffrey J. Prevost,
Judge. Affirmed.
Kristine
M. Watkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and
Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A
jury convicted defendant Raymond Matthew Fierro of possession of a weapon while
in a penal institute (Pen. Code,
years in prison.
Defendant’s
primary arguments on appeal are that the prosecution failed to make an election
of the factual basis for weapons possession and the court misinstructed the
jury based on CALCRIM No. 2745 and by not giving instructions based on CALCRIM
No. 3502 [unanimity] and CALJIC No. 1.24 [constructive possession]. Defendant also raises related claims of
at trial for not cross-examining a witness based on his testimony at the
preliminary hearing. Defendant’s claims
of error lack merit. We affirm the
judgment.
II
STATEMENT OF FACTS
On March 22, 2011, Correctional
Officers David Fernandes and Omar Capacete were on duty at the California
Rehabilitation Center in Norco. The
officers entered Dorm 213 around 3:00 p.m.
As they were walking past some bunks toward the bathroom, someone yelled
out, “walking,†a warning that officers were present. Fernandes saw defendant leave his bunk and
move towards the bathroom. Fernandes
ordered defendant to place his hands on top of a locker at the foot of bunk 37
and submit to a search. Instead of
complying, defendant ran into the bathroom, withdrew a “metallic-looking
object†from his waistband, dropped the item in the toilet, and began
flushing. The item did not resemble a
tattoo gun. Fernandes deployed his
pepper spray while commanding defendant to get down. After defendant was overcome and prone on the
floor, Fernandes found “an inmate-manufactured weapon†inside the toilet
bowl. The weapon was “a piece of metal
stock about approximately seven and one-third inches long with a sharpened
point, with the handle made out of a razor handle, with string wrapped around a
blue cloth and rubber bands.â€
Capacete saw defendant run
away from Fernandes. He activated the
dorm alarm, which alerts the inmates to lie on the floor. Capacete searched defendant’s bunk. Inside a hole in the mattress, Capacete found
a gray handkerchief wrapped around two inmate-manufactured weapons, both “metal
stock. One with the blue handle with the
rubber band around it and the other one is another metal stock with a circular
top used . . . as a holder or as a grip.â€
Defendant did not present
evidence. Instead, defense counsel
argued defendant possessed only a tattoo gun, which is not a weapon as defined
by section 4502, and that other inmates had access to defendant’s mattress and
could have planted the other two weapons.
III
ELECTION OF THE FACTUAL
BASIS FOR THE CHARGE
AND CALCRIM NOS. 2745 AND
3502
Defendant contends the
prosecutor should have made an election regarding which of the three weapons
was the basis for the charge of weapons possession. Defendant also argues that the trial court
erroneously instructed the jury based on a modified version of the final two
paragraphs of CALCRIM No. 2745:
“The People allege that the
defendant possessed, or carried on his person, or had under his custody or control,
the following weapons:
bathroom of Dorm 213, 2) a SHARP INSTRUMENT located inside the mattress of Dorm
213,Bunk 32 up, and 3) a SHARP INSTRUMENT located inside the mattress of Dorm
213, Bunk 32 up. You may not find
the defendant guilty unless all of you agree that the People have proved that
the defendant possessed, or carried on his person, or had under his custody or
control at least one of these weapons and you all agree on which weapon he
possessed or carried on his person, or had under his custody or control.†Finally, defendant maintains that the jury
should have received a unanimity instruction based on CALCRIM No. 3502.
A. The Trial Proceedings
The court and counsel for
the parties discussed the jury instructions—CALCRIM Nos. 2745 and 3502—in
detail. The prosecutor agreed the jury
would need to agree unanimously regarding which specific weapon supported the
conviction. He believed the unanimity
language in the modified version of CALCRIM No. 2745 was sufficient. Defense counsel objected to the meaning and
grammar of the instruction. Based on
61,
accurate and should be given as drafted by the prosecutor. The court instructed the jury with CALCRIM
No. 2745 as modified.
During closing argument, the
prosecutor argued to the jury:
“[Defendant] has weapons. He had that one on his person, actually in
his waistband and was trying to get rid of it.
These other ones were in his mattress, so he didn’t have a chance to get
rid of those. But these two right here
tell you that that’s the defendant’s weapon.
If for some reason you think that he is unlucky and that that’s not his
weapon, then you can find him guilty based on these two, but you guys have to
agree on that.
“My argument to you is that
the most reasonable explanation is that this one was in the possession of the
defendant in his waistband. That’s what
he was trying to get rid of and that’s the crime that I’m going to ask you to
hold him responsible for, accountable for, is possessing that weapon.â€
B. Discussion
When the evidence presented
at trial suggests more than one discrete crime, either the prosecutor must
elect among the crimes or the court must sua sponte instruct the jury to agree
on the same criminal act. (
1132; People v. Melhado (1998) 60
Cal.App.4th 1529, 1534, citing People v.
Salvato (1991) 234 Cal.App.3d 872, 877.)
The California Supreme Court has approved of the “either/or†rule: “[C]ases have long held that when the
evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the same criminal
act.†(Russo, at p. 1132.) Almost
every Court of Appeal decision since Salvato
has applied the either/or rule. (
unanimity adequately protects a defendant’s constitutional right to a unanimous
jury verdict. A failure to elect when
multiple criminal acts occur is cured by a unanimity instruction.
An election is only required
on demand by defendant. (
Cal.App.4th at p. 882.) Defendant admits
that he did not ask the prosecutor to make an election but he argues that the
discussion regarding CALCRIM Nos. 2745 and 3502 was the functional equivalent
of a motion to compel election. We
disagree.
The discussion of jury
instructions centered on which instruction was the appropriate instruction to
be given. Defendant’s failure to demand
an election waives any such right on appeal.
(People v. Partida (2005) 37
Cal.4th 428, 434-435.) Even if defendant
had requested an election, the prosecutor expressly made an election of
criminal acts to the jury during closing argument and the court gave an
instruction on unanimity. A prosecutor
may make the required election during argument to the jury. (People
v. Melhado, supra, 60 Cal.App.4th at p. 1539; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1454-1455.) The election must clearly and unequivocally
inform the jurors “of their duty to render a unanimous decision as to a
particular unlawful act.†(
Here, the prosecutor
identified the weapon defendant removed from his waistband as the criminal act
supporting the charge. The prosecutor
explained to the jury the four elements required to prove for the charged
crime: 1) defendant was incarcerated in
a penal institute; 2) defendant possessed a weapon in his waistband; 3)
defendant knew he possessed the weapon; and 4) defendant knew the sharp
instrument could be used as a stabbing weapon for the purposes of offense or
defense. The prosecutor did mention the
two sharp instruments found in the mattress but he characterized those items as
being corroborating evidence.
Additionally, the prosecutor did not request a constructive-possession
instruction, which would have been required if the prosecution meant to rely on
defendant’s possession of the sharp instruments found in his bunk.
Therefore, the prosecutor
elected defendant’s possession of the sharp instrument in his waistband as the
factual basis for the sole possession charge.
Given the prosecutor’s election, the unanimity instruction to agree on
which sharp instrument defendant possessed, and the evidence presented at
trial, there is no possibility the jury could disagree as to which act gave
rise to the charge.
Furthermore, because it gave
a unanimity instruction, the trial court did not err. The trial court provided the jury with a
unanimity instruction pursuant to CALCRIM No. 2745, the functional equivalent
of CALJIC No. 17.01, requiring the
jurors to “all agree on which weapon [defendant] possessed or carried on his
person, or had under his custody or control.â€
Both instructions require the jury to agree unanimously that the
defendant committed the same specific criminal act, which is all that is
required of a unanimity instruction. (
at p. 1534; People v. Sutherland
(1993) 17 Cal.App.4th 602, 612.)
Moreover, “[n]either an
election nor a unanimity instruction is required when the crime falls within
the ‘continuous conduct’ exception.†(
at p. 882; People v. Jenkins (1994)
29 Cal.App.4th 287, 299.) Here, Fernandes
first observed defendant in his bunk area before he went to the bathroom and
tried to flush the object taken from his waistband. The two sharp instruments in the mattress
were similar. Although defendant claims
his bunk was accessible to others while he went to the bathroom, the inference
that some other inmate put the sharp objects into his mattress is unreasonable
because Capacete testified that, as defendant was heading for the bathroom, the
alarm sounded and all the other inmates got down on the ground and stopped
moving. Defendant’s possession of the
sharp instruments was a single continuing course of conduct that extended
throughout defendant’s assertion of control over the sharp instruments. (People
v. Wright (1968) 268 Cal.App.2d 196, 198.)
Finally, defendant has not
shown he was prejudiced by the People not making an election. “[R]efusal will only be prejudicial if an
election would have made some significant difference in the trial, whether
through the exclusion of evidence, allowing a focused defense, or in some other
respect that materially implicates the right to be advised of the
charges.†(People v. Salvato, supra, 234 Cal.App.3d at p. 882.) Defendant’s criminal acts of possessing the
weapon in his waistband and in his bunk occurred within seconds of each other,
and he was given adequate notice of the evidence by the preliminary
hearing. Furthermore, the unanimity
instruction was given and, to a large extent, precluded prejudice on the facts
of this case. Hence, the jury
necessarily resolved which acts constituted the possession of a weapon. For these reasons, even assuming error
occurred, the error was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24; People
v. Deletto (1983) 147 Cal.App.3d 458, 471.)
Based on the foregoing,
defendant cannot sustain a related claim for ineffective assistance of
counsel. The record shows defense
counsel did not demand an election by the prosecution based on an informed
decision to rely on the trial court’s unanimity instruction, the prosecution’s
election during closing argument, and the continuing nature of the
offenses. A defendant seeking reversal
on the basis of ineffective assistance of counsel must prove both counsel’s deficient
performance and a resulting prejudice. (
668, 687; People v. Ledesma (1987) 43
Cal.3d 171, 218.) Defendant cannot
establish deficient performance or prejudice based on this record.
IV
INSTRUCTION REGARDING
ACTUAL AND CONSTRUCTIVE
POSSESSION
Defendant next argues the
trial court erred by not instructing the jury on actual and constructive
possession based on CALJIC No. 1.24. In
a related claim, defendant argues ineffective assistance of counsel for failing
to request that the court give the instruction.
We reject these contentions.
“There is no error in a
trial court’s failing or refusing to instruct on one matter, unless the
remaining instructions, considered as a whole, fail to cover the material
issues raised at trial. As long as the
trial court has correctly instructed the jury on all matters pertinent to the
case, there is no error. The failure to
give an instruction on an essential issue, or the giving of erroneous
instructions, may be cured if the essential material is covered by other correct
instructions properly given.
[Citations.]†(
266, 277; People v. Musselwhite (1998)
17 Cal.4th 1216, 1248.) A reviewing
court will not set aside a judgment on the basis of instructional error unless,
after an examination of the entire record, the court concludes it is reasonably
probable the jury would have reached a result more favorable to the defendant
absent the error. (Cal. Const., art. VI,
§ 13; Dieguez, at pp. 277-278.)
CALJIC No. 1.24
provides: “There are two kinds of
possession: Actual possession and
constructive possession. [¶] Actual possession requires that a person
knowingly exercise direct physical control over a thing. [¶]
Constructive possession does not require actual possession but does require
that a person knowingly exercise control over or the right to control a thing,
either directly or through another person or persons. [¶]
One person may have possession alone, or two or more persons together
may share actual or constructive possession.â€
A defendant’s possession of
an illegal object may be either actual or constructive. (People
v. Cordova (1979) 97 Cal.App.3d 665, 670.)
Actual or constructive possession includes the right to exercise
dominion and control over an item or the right to exercise dominion and control
over the place where it is found.
Possession may be shared with others; exclusive possession is not
necessary. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Actual possession occurs when the defendant
exercises direct physical dominion and control over the item. (People
v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on another
point in People v. Palmer (2001) 24
Cal.4th 856, 861, 867.) “Constructive
possession exists where a defendant maintains some control or right to control
[the item] that is in the actual possession of another.†(People
v. Morante (1999) 20 Cal.4th 403, 417.)
CALCRIM No. 2745 correctly
informed the jury that one of the elements of possession of a weapon in a penal
institution is “[t]he defendant possessed, carried on his person, or had under
his custody or control a SHARP INSTRUMENT.â€
The instruction also provided that the jury must find “[t]he defendant
knew that he possessed, carried on his person, or had under his custody or control
the SHARP INSTRUMENT.†CALCRIM No. 2745,
as modified, was sufficiently similar to the language set forth in CALJIC No.
1.24. The jury could not have failed to
understand that defendant possessed an object he physically had on his person
or hidden in his mattress. A trial court
has no sua sponte duty to amplify or clarify instructions where the terms used
in the instructions given are commonly understood. (People
v. Richie (1994) 28 Cal.App.4th 1347, 1360.) As such, no further instruction on possession
was necessary. For these same reasons,
defendant has failed to show that defense counsel was ineffective or that
defendant suffered prejudice.
V
INEFFECTIVE ASSISTANCE OF
COUNSEL
Finally, defendant claims
that trial counsel rendered ineffective assistance of counsel by not impeaching
Fernandes’s trial testimony about his description of the sharp instrument in
defendant’s waistband. If the record on
appeal “‘“sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,†the
claim on appeal must be rejected,’†and the “claim of ineffective assistance in
such a case is more appropriately decided in a habeas corpus proceeding.†(People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Here the conduct of defense counsel is
subject to a satisfactory explanation.
At the preliminary hearing,
Fernandes testified that he saw defendant remove an object from his waistband
and try to flush it down the toilet.
Defense counsel asked Fernandes if he could describe the object and
Fernandes said, “No.†Defense counsel
then asked Fernandes, “So you did not notice anything metallic?†Fernandes responded, “No.†At trial, Fernandes testified on direct
examination that he saw defendant pull “a metallic-looking object†out of his
waistband. On cross-examination,
Fernandes testified, “I saw metallic, yes.â€
Again defendant has not
shown that defense counsel’s actions were the result of deficient
performance. Defendant’s claim that
defense counsel was ineffective for failing to review the preliminary hearing
transcript is speculative. There is no
evidence in the appellate record that defense counsel did not review the
preliminary hearing transcript or any other materials.
In any case, although
defense counsel might have impeached Fernandes by referring to his earlier
testimony, the decision to forgo impeachment was not evidently negligent. The evidence plainly showed that Fernandes
saw defendant remove the weapon from his waistband and drop it in the toilet
bowl. Defense counsel asked, “And you
never saw in Mr. Fierro’s hands an inmate-manufactured weapon, correct?†Fernandes responded he had not. Defense counsel effectively elicited an
admission that the officer did not see an inmate-manufactured weapon in
defendant’s hand. In light of the
admission, defense counsel could have decided not to emphasize a relatively
minor inconsistency.
Finally, there is no reasonable
probability that counsel’s decision affected the verdict. Fernandes never wavered from his testimony
that he saw defendant pull an object out of his waistband, run to the toilet,
and throw it in. A metal object was
immediately found in the toilet. Given
the strong evidence of defendant’s guilt, counsel’s alleged errors were not “so
serious as to deprive the defendant of a fair trial.†(Strickland
v. Washington, supra, 466 U.S. at p. 687.)
Defendant has failed to show that counsel was ineffective or he suffered
any prejudice as a result of counsel’s performance.
VI
DISPOSITION
We
reject defendant’s claims regarding election, instructional error, and
ineffective assistance of counsel. We
affirm the judgment.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
name="_ftn1" title=""> [1] All
statutory references are to the Penal
Code unless stated otherwise.
name="_ftn2" title=""> [2] Defendant
admitted that he had served a prison term (§ 667.5, subd. (b)) and was
convicted of a serious or violent felony.
(§§ 667, subds. (c) and (e)(l), and 1170.12, subd. (c)(l).)
