P. v. Gibbings

Filed 3/13/07 P. v. Gibbings CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Calaveras)

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A jury convicted defendant Roger Bryan Gibbings of the unauthorized possession of materials to make a destructive device (Pen. Code, 12312--count 1; unspecified section references that follow are to the Penal Code), and the unlawful possession of a destructive device. ( 12303--count 2.) The jury was unable to reach a verdict on a charge of conspiracy to possess or explode a destructive device with the intent to injure a person or destroy property ( 182, 12303.3), and that count was subsequently dismissed. The trial court sentenced defendant to an aggregate prison term of two years.

On appeal, defendant contends that the trial court erred in (1) admitting defendants statements to investigators into evidence, (2) admitting out-of-court testimonial evidence in violation of Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), (3) denying his motion for acquittal on count 1, and (4) refusing to disclose juror identifying information. We conclude no reversible error occurred, and therefore affirm the judgment.

Facts and Proceedings

Late one night, a bomb exploded at the Railroad Flat General Store.

Defendant had been living at his mothers house. In a search of the house, investigators found a pipe bomb, gunpowder, and high explosive detonating cord.

Defendant and another individual, Glynn McNabb, had been at the house the night of the bombing. As discussed later in this opinion, the prosecution introduced evidence that McNabb had pleaded guilty to the store bombing.

When defendant learned that investigators wanted to speak to him about the incident, he moved from his mothers house and hid from law enforcement for nearly one year.

Defendant was eventually arrested at his mothers house and an information charged him with three offenses. Count 1 charged possession of explosive material with the intent to manufacture an explosive device, count 2 charged possession of an explosive device, and count 3 charged conspiracy to possess or explode a device with the intent to injure a person or destroy property.

In a statement to investigators, defendant said he had previously built and exploded bombs on the property and in a pond for fun. He sometimes retrieved unexploded bombs from the pond by using magnets from a fishing boat. He said he told McNabb where he could find gunpowder in the house, but he denied making a bomb for him. When the investigator told defendant that he did not think McNabb was capable of building a bomb, defendant suggested that maybe McNabb had pulled one of defendants unexploded bombs out of a pond on the property. When the investigator discounted that theory, defendant replied, Okay, what am I looking at for building the bomb? Can I get county time? I can do county time but I cant do prison time.

Discussion

I

Admissibility of Defendants Statements

During his interrogation of defendant, Detective Anenson commented that he thought McNabb was incapable of building the bomb used in the Railroad Flats General Store bombing and that he thought defendant had built this device. Defendant replied, Okay, what am I looking at for building the bomb? Can I get county time? I can do county time but I cant do prison time.

Defendant objected to this testimony, asserting it did not constitute an admission, was irrelevant, and raised the punishment issue, but the trial court overruled these objections.

On appeal, defendant contends his statement should not have been admitted because (1) it did not constitute an admission and (2) was more prejudicial than probative under Evidence Code section 352. Neither claim has merit.

The admissibility of defendants statement does not turn on whether it can be characterized as an admission. Evidence Code section 1220 provides: Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . . Here, the challenged statements were made by defendant and offered against him in his trial. They were therefore admissible under Evidence Code section 1220, regardless of whether they constituted admissions. (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) The hearsay rule does not compel exclusion of any statement offered against a party declarant, whether or not it can be described as an admission. (Ibid.; accord People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5.)

Nor is exclusion compelled under Evidence Code section 352. Even though defendant did not explicitly invoke this provision in objecting to the admission of the challenged statement, the trial court nonetheless weighed the statements probative value against its potential for prejudice. The court found the statement to be very, very relevant and highly probative, outweighing any prejudicial effect.

Given the courts determination, we will assume for purposes of argument that defendant has not forfeited his claim of error by failing to raise an objection under Evidence Code section 352.

Rulings under Evidence Code section 352 come within the trial courts discretion and will not be overturned absent an abuse of that discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)

Defendant asserts the probative value of the challenged statement was weak because defendants questions were subject to the very reasonable interpretation that [he] simply acknowledged that the case against him, as described by Anenson, was strong enough to convict him regardless of any defense he might muster. Defendant was certainly free to argue this interpretation to the jury, but that does not mean this evidence was devoid of probative value given other possible scenarios. Defendant cannot demonstrate that the court abused its discretion in determining that the probative value of the statement under the prosecutions theory of the case outweighed any potential for prejudice.

Contrary to defendants claim, this is not a situation like People v. Leon (2001) 91 Cal.App.4th 812. In that case, a court interpreter testified that she thought she observed the defendant masturbating in court during his trial on a child molestation charge. (Id. at pp. 814-815.) The appellate court found the admission of this testimony erroneous for a variety of reasons. (Id. at pp. 816-817.) The behavior the court interpreter described was unclear and ambiguous and therefore of weak probative value. Defendants conduct in court was irrelevant to his intent at the time he committed the charged acts. Perhaps even more importantly, the trial court failed to engage in any weighing process under section 352. (Ibid.)

Here, however, there was no question what defendant said: he made the statement he made. The issue was the interpretation to be given to that statement. The trial court properly weighed the probative value of the statement against its prejudicial impact, and exercised its discretion to admit this evidence. There was no error.

II

Crawford Error

Glynn McNabb refused to testify at defendants trial. Over defendants objection, the court permitted the prosecutor to read the jury a transcript excerpt in which McNabb pleaded guilty to the charge of exploding a destructive device on August 26, 2002, with intent to injure persons or destroy property. On appeal, defendant again contends this evidence should have been excluded under principles enunciated in Crawford, supra, 541 U.S. 36 [158 L.Ed.2d 177]. The People concede the error but assert the error was harmless. We agree.

In Crawford, the United States Supreme Court held that testimonial, out-of-court statements must be excluded under the Sixth Amendments confrontation clause unless the witness is unavailable and the defendant had an opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68 [158 L.Ed.2d at p. 203].)

Given the Peoples concession, we will assume, without deciding, that McNabbs plea colloquy falls with the rule of Crawford.

Admission of an extrajudicial statement in violation of defendants rights under the confrontation clause is subject to Chapman harmless error analysis. (People v. Song (2004) 124 Cal.App.4th 973, 982; accord People v. Harrison (2005) 35 Cal.4th 208, 239.) It is beyond a reasonable doubt that the jurys verdict would have been the same had McNabbs plea not been admitted into evidence.

First, as even defendant recognizes, McNabbs plea was relevant to count 3, the charge of conspiracy. This charge was dismissed after the jury was unable to reach a verdict. McNabbs plea had little, if any relevance, to the two counts on which defendant was convicted, the possession of materials with the intent to make a destructive device ( 12312) and the unlawful possession of a destructive device ( 12303). The evidence on these two counts centered not on McNabbs plea, but on the evidence found at the home of defendants mother (including a pipe bomb, detonating cord, and gunpowder), defendants statements to investigators, and defendants efforts to hide from law enforcement for nearly one year.

Under these circumstances, the erroneous admission of McNabbs plea was harmless beyond a reasonable doubt.

III

Motion for Acquittal

Count 1 of the information charged defendant with violating section 12312, which provides in relevant part: Every person who possesses any substance, material, or any combination of substances or materials, with the intent to make any destructive device or any explosive without first obtaining a valid permit to make such destructive device or explosive, is guilty of a felony . . . .

At the conclusion of the prosecutions case-in-chief, defendant moved for acquittal on this count, asserting the evidence was insufficient to sustain a conviction for this offense. ( 1118.1.) The trial court denied that motion.

On appeal, defendant contends the courts decision was erroneous. Specifically, he asserts (1) the prosecution did not introduce any evidence that defendant lacked a valid permit, and thereby failed to meet its burden of proof, and (2) there was otherwise insufficient evidence to support a conviction on this count. Neither claim has merit.

Section 1118.1 provides a mechanism for a defendant to move for acquittal when the prosecution has failed to prove a prima facie case. (People v. Belton (1979) 23 Cal.3d 516, 521.) In ruling on such a motion, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] [Citation.] Where the section 1118.1 motion is made at the close of the prosecutions case-in-chief, the sufficiency of the evidence is tested as it stood at that point. [Citation.] []  A defendant need not articulate the grounds for his motion for acquittal, and there is no requirement that the motion be made in a particular form. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)

We review independently a trial courts ruling under section 1118.1 that the evidence is sufficient to support a conviction. (People v. Cole, supra, 33 Cal.4th at p. 1213.)

Defendant first contends his motion for acquittal should have been granted because the prosecution failed to introduce evidence of an essential element of the crime, namely, that he did not have a valid permit to make a destructive device. There was no failure of proof. The lack of a valid permit is not an element of the crime to be established by the prosecution. Rather, possession of a permit is an affirmative defense to be established by the defendant.

Different courts have analyzed the element-of-the-offense-vs.-affirmative-defense issue in different ways, generally taking one of three approaches. (See People v. Henley (1999) 72 Cal.App.4th 555, 563.) Some have held that where a statute first defines an offense in unconditional terms and then specifies an exception to its operation, the exception is an affirmative defense to be raised and proved by the defendant. [Citations.] (People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045; see People v. Fisher (2002) 96 Cal.App.4th 1147, 1151.)

In People v. Gott (1994) 26 Cal.App.4th 881, this court rejected the Fuentes grammatical rule (id. at p. 885), and instead focused on the nature of the exception, and whether it is so incorporated into the statute that it constitute a part of the definition of the crime. (Id. at pp. 885-889.) In other words, where exceptions or provisos are not descriptive of the offense, or define it, but rather afford a matter of excuse, they are to be relied on in [the] defense. [Citations.] (In re Andre R. (1984) 158 Cal.App.3d 336, 342.)

A third approach is exemplified by People v. Yoshimura (1979) 91 Cal.App.3d 609, a case applying the rule of convenience to a prosecution for a violation of section 12312, the offense at issue here. The rule has emerged from a long line of decisions which operate to impose on a defendant the burden of proving an exonerating fact if its existence is peculiarly within his personal knowledge and proof of its nonexistence, by the prosecution, would be relatively difficult or inconvenient. (Id. at pp. 626-627, italics added.) The court held that requiring the prosecution to prove a negative--that defendant did not have a valid permit to possess the otherwise unlawful material--is precisely what the rule of convenience is designed to avoid. (Id. at p. 629.) If defendant held a permit, the fact was peculiarly within her knowledge and there was nothing harsh or unfair in making her bear the burden of proving it. (Ibid.)

We conclude that, under any of these three approaches, the possession of a valid permit is an affirmative defense to be proved by defendant, not an element of section 12312 to be proved by the prosecutor. Section 12312 defines the possession of material to make a destructive device with the intent to make such a device as a crime unless there is a permit authorizing that possession. (See People v. Yoshimura, supra, 91 Cal.App.3d at p. 628.) Under the grammatical approach of People v. Fuentes, supra, 224 Cal.App.3d at page 1045, this exception is a an affirmative defense, not an element of the offense Likewise, under the analysis utilized in People v. Gott, supra, 26 Cal.App.4th at pages 886-889, this exception cannot be deemed to be incorporated within the definition or description of the offense. And, as Yoshimura held, the rule of convenience places the burden on defendant to demonstrate that he had a permit to possess the explosive material.

In short, defendant errs in asserting that the prosecutor failed to establish a requisite element of the charged offense. Rather, it was defendants burden as part of an affirmative defense to prove that he had such a permit. Defendants claim that the court should have granted his motion for acquittal due to failure of proof fails.

Defendant also contends that his motion for acquittal on count 1 should have been granted because there was insufficient evidence to support his conviction for violating section 12312. Defendant offers no authority in support of this claim, and, in focusing on the lack of direct evidence of wrongdoing, fails to recognize the appropriate standard of review.

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Jones (1990) 51 Cal.3d 294, 314.)

A reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citation.] (People v. Raley (1992) 2 Cal.4th 870, 891.)

Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] (People v. Jones, supra, 51 Cal.3d at p. 314.)

There was substantial evidence presented that defendant possessed materials with the intent to make a destructive device. Defendant lived at his mothers house, and evidence uncovered there included a pipe bomb, gunpowder and detonating cord. Defendant admitted making and exploding bombs in the past, and he would even retrieve unexploded bombs from a pond on the property. He admitted that McNabb and another person came by his mothers house on the night of the Railroad Flat explosion and that he provided them with gunpowder. Defendant hid from law enforcement for nearly one year because he knew he was wanted for questioning in these events. Finally, during his interrogation, defendant asked the investigator about the potential sentence he faced for building the bomb.

This evidence provided was more than sufficient to sustain a conviction for violating section 12312, and the trial court therefore properly denied defendants motion for acquittal. There was no error.

IV

Disclosure of Juror Identifying Information

After trial concluded, defendant filed a motion to obtain the release of juror identifying information for the purpose of developing a motion for new trial based on jury misconduct or misunderstanding. The prosecutor responded that defendant was engaged in a fishing expedition and had not made the requisite showing to warrant disclosure. The trial court denied the motion without prejudice to renewing the motion after the filing of affidavits from jurors who had contacted defense counsel.

Defendant subsequently submitted signed declarations from two jurors in support of a renewed motion for disclosure of juror identifying information. Juror C.C.s declaration focused on her belief that the charges for which defendant had been convicted related to the materials found at the house and not the bomb that exploded at the Railroad Flat General Store. She was concerned and confused because a newspaper account of the trial had said that defendant had been convicted of that particular bombing, and that is not what she or other jurors had decided.

Juror C.C. also said that during deliberations, one juror mentioned that count three [conspiracy] was the worse charge, and that he had friends that had similar charges as counts one and two. He said that [defendant] most likely would not go to jail, that he would get community service and a slap on the hand.

In a second declaration, Juror J.S. also stated that the jurys verdicts were predicated on the evidence found at the house and not on the Railroad Flat bomb. He said there was no evidence to connect defendant to that bombing. He concluded that defendant would have walked free if it wasnt for his statements to the officer. That was the deciding point for a lot of the jurors. If it wasnt for his statements there was nothing.

The trial court denied defendants motion for disclosure of juror identifying information, noting that the only count that had directly related to the Railroad Flat bombing was count three, conspiracy, the count on which the jury was unable to agree. The court called it unfortunate that the newspaper article had erroneously reported that the jury had convicted defendant of this particular bombing, and commented that [t]he jurors, at least one if not more, for sure went off on the fact that they thought the paper said that he was going to be sentenced for what he was not found to have done, that is, participated in the Railroad Float bombing as such. []  But what they thought and the mental processes of how they came up with anything else is just not available and not one that is appropriate to go into.

On appeal, defendant contends that the court erred in denying his motion to disclose juror identifying information. We do not agree.

Code of Civil Procedure sections 206 and 237 govern the release of juror identifying information. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1319.) Under these provisions, a defendant may petition the court for access to personal juror identifying information to communicate with jurors for the purpose of developing a motion for new trial or for any other lawful purpose. (Code. Civ. Proc., 206, subd. (g).) This petition must be supported by a declaration that includes facts sufficient to establish good cause of the release of the jurors personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. . . . (Code Civ. Proc., 237, subd. (b).)

Thus, a defendant is entitled to a full hearing to obtain juror identifying information only by first presenting a petition that establishes good cause for the information. (Code Civ. Proc., 206, 237; People v. Jefflo, supra, 63 Cal.App.4th at pp. 1320-1323 & fn. 8.) Good cause is established by making a sufficient showing to support a reasonable belief that juror misconduct occurred, and a courts ruling on this issue will be reversed only for abuse of discretion. (See People v. Jones (1998) 17 Cal.4th 279, 317-318.)

The trial court acted well within its discretion in concluding that defendant had not established good cause for the disclosure of juror identifying information. The declarations from the two jurors focused on their discomfort with a newspaper article that erroneously reported their verdicts. Journalistic error does not impugn the jurys verdict.

While the jurys questions during deliberations evidenced some confusion about the three charges against defendant, defendant introduced no evidence to support a reasonable belief that juror misconduct occurred. The bulk of the juror declarations relate to the reasoning behind the jurors votes. None of that evidence is admissible.

Evidence Code section 1150, subdivision (a), provides: Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.

This statute distinguishes between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . . [Citation.] (People v. Steele (2002) 27 Cal.4th 1230, 1261.) This distinction serves a number of important policy goals. It prevents a juror from impugning one or more jurors reasoning processes. It excludes unreliable proof of thought processes and thereby preserves the stability of verdicts. It deters the harassment of jurors by the losing side seeking to discover defects in the deliberative process and reduces the risk of postverdict jury tampering. It also assures the privacy of jury deliberations. [Citations.] Not all thoughts by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But such [thoughts] cannot impeach a unanimous verdict; a jury verdict is not so fragile. (Id. at pp. 1261-1262.) In other words, the jurors motives, beliefs, misunderstandings, intentions, and the like are immaterial in determining whether juror misconduct occurred. (People v. Hill (1992) 3 Cal.App.4th 16, 30, disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)

Nor was there sufficient evidence adduced to suggest jurors committed misconduct by discussing possible punishment. (See People v. Hill, supra, 3 Cal.App.4th at p. 38.) Juror J.S. did not even mention such a conversation in his declaration. Juror C.C. outlined what she heard a juror say about the relative severity of the three counts, but did not explain when during deliberations these statements were made, any persons response to these comments, or the effect these statements had on her or anyone else. (We note that the jury was unable to reach a verdict on count 3, the charge this juror apparently thought carried the most significant punishment.)

Defendant failed to establish good cause for the disclosure of juror identifying information, and the court therefore acted well within its discretion in denying his petition.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

NICHOLSON , Acting P.J.

MORRISON , J.

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