Filed 4/2/18 P. v. Green CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LADON IAN GREEN,

Defendant and Appellant.

F075003

(Super. Ct. No. F16905160)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


INTRODUCTION
Appellant Ladon Ian Green stands convicted by a jury of possession of a firearm by a felon, in violation of Penal Code section 29800, subdivision (a)(1) (count 1); unlawful possession of ammunition in violation of section 30305, subdivision (a)(1) (count 2); and resisting or obstructing a peace officer in the performance of his duties, in violation of section 148, subdivision (a)(1) (count 3). A section 667.5, subdivision (b) enhancement also was found true. Green contends instructional error requires reversal of counts 1 and 2. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Green challenges only the count 1 and 2 convictions. Therefore, we focus our recitation of facts on those pertinent to the issues on appeal.
Fresno Police Officer Erik Castillo had been a police officer for approximately 13 years at the time of trial in December 2016. On August 17, 2016, Castillo was on patrol in the area of Cedar and Olive Avenues. As Castillo was driving east on Olive, he noticed a vehicle with a cracked windshield, which is a violation of Vehicle Code section 26710.
Castillo pulled behind the vehicle and activated the lights on his patrol motorcycle. The vehicle pulled into a gas station and stopped. Castillo walked up to the driver’s window of the vehicle and told the driver, later identified as Green, the reason for the stop and asked for his driver’s license. Green replied that he did not have one. A female passenger in the car had a red cloth on top of the purse in her lap.
As Castillo was walking back to his motorcycle, he saw Green appear to be looking for his identification in the vehicle; he then saw Green open the car door, step out, and stand in the doorway. Castillo told him to get back in the vehicle. Instead of complying, Green ran away.
Castillo gave chase and Green ran into an apartment complex, where Castillo briefly lost sight of him. People in the common area told Castillo that Green had run into one of the apartments and pointed out which one. Green was arrested.
Fresno Police Officer Jeffrey Logue was assigned to a helicopter watch that day and responded to the area of Cedar and Olive Avenues. Logue saw a woman open up the passenger door of the vehicle Green was driving, reach inside, and bring out a “red object.” She then walked over to the nearby trash can with the red object.
When Castillo returned to the location where he had effected the traffic stop, another officer told him to look in the garbage can “just in front of the traffic stop location.” Inside the garbage can was a red cloth or shirt wrapped around a firearm. Officer Bryan Craft “rendered the firearm safe.” There was a bullet in the chamber and four in the magazine. All five bullets were live, as they had not been fired.
Craft subsequently searched the vehicle Green had been driving and found a backpack containing three .12-gauge shotgun shells and two .38 special bullets. There was no “indentation in the primer” of the shotgun shells, which would indicate they had been “expelled” or fired from a weapon. The shotgun shells were “live.” On the .38 special bullets, “they are capped with an actual lead bullet on top,” which apparently was intact and Craft testified these bullets were live.
In a jail telephone call that was recorded, Green talked about being pulled over by an officer at Cedar and Olive Avenues. Green asserted he could not be found guilty of possession of a firearm because it was not found on him. Green stated the “icky” was found in a garbage can. The recording was admitted into evidence and played for the jury.
A crime scene technician testified she found no latent fingerprints on the firearm, but that the absence of fingerprints was not unusual. The surface of the grips on handguns makes it “more difficult than other items” to obtain fingerprints from the surface.
Green stipulated he had been convicted of a prior felony. Green did not testify or present any witnesses for the defense.
The jury found Green guilty of count 1, possession of a firearm by a felon; count 2, unlawful possession of ammunition; and count 3, resisting or obstructing a peace officer in the performance of his duties. On December 12, 2016, the jury trial of the prior prison enhancement allegation was conducted. The jury found the enhancement true.
Sentence was imposed on January 11, 2017. The trial court noted Green had an “extensive criminal history.” The trial court imposed a term of two years in prison for count 1. After noting it had discretion to strike or stay imposition of punishment on the enhancement, the trial court stated it was not “appropriate” to do so and would “deny any request to do that.” A consecutive one-year term for the enhancement was imposed. The term for count 2 was ordered to be served concurrently with the term on count 1.
Credits of 148 actual days, plus 148 conduct days, for a total of 296 days were awarded. On count 3, a jail term of 296 days was imposed, with credit for 296 days served. Various fines and fees were imposed.
The abstract of judgment was filed on January 11, 2017. That same day, Green filed a notice of appeal.
DISCUSSION
Green contends counts 1 and 2 must be reversed because the trial court erred in instructing on the union of act and intent. He also contends count 2 must be reversed because the trial court did not instruct on expert testimony.
I. Union of Act and Intent
Count 1 charged possession of a firearm by a felon; count 2 charged unlawful possession of ammunition. Green asserts the trial court was required sua sponte to instruct the jury as to counts 1 and 2 not only on the union of act and general intent, but also that Green “must have possessed the contraband with both general intent and ‘knowledge of its presence and nature.’”
The trial court instructed the jury with CALCRIM No. 252, which as given stated in relevant part:
“The crimes charged require proof of the union, or joint operation, of act and wrongful intent.
“The following crimes require general criminal intent: Possession of a firearm by a Felon, as charged in Count 1 and Possession of Ammunition by a Person prohibited from owning a Firearm, as charged in Count 2. For you to find a person guilty of these crimes, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he intentionally does a prohibited act; however, it is not required that he intend to break the law. The act required is explained in the instruction for that crime.”
As to the crime of possession of a firearm by a felon, the jury also was instructed with CALCRIM No. 2511, which stated in part: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed a firearm; [¶] 2. The defendant knew that he possessed the firearm; AND [¶] 3. The defendant had previously been convicted of a felony.” [Emphasis added.] Regarding the crime of unlawful possession of ammunition, the trial court instructed with CALCRIM No. 2591, which stated in part: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed or had under his custody or control ammunition; [¶] 2. The defendant knew he possessed or had under his custody or control the ammunition; AND [¶] 3. The defendant had previously been convicted of a felony.” [Emphasis added.]
The trial court has a sua sponte duty to instruct on the elements of the offense. (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) We apply a de novo standard of review in assessing whether jury instructions correctly state the law, reviewing the instructions as a whole. (People v. Posey (2004) 32 Cal.4th 193, 218.)
CALCRIM No. 2511 is the pattern jury instruction for the crime of possession of a firearm by a person prohibited from possession due to a conviction, when the defendant has stipulated to the conviction, as Green did here. CALCRIM No. 252 is the pattern jury instruction for the union of act and intent, when there are both general and specific intent crimes charged. CALCRIM No. 2511 in combination with CALCRIM No. 252 accurately and adequately instructs on the offense of felon in possession of a firearm. CALCRIM No. 2591 is the pattern jury instruction that instructs on the elements for the crime of unlawful possession of ammunition. (Bench Notes to CALCRIM Nos. 252, 2511 & 2591 (2017) pp. 68-69, 365-366, 465.) A trial court risks injecting inappropriate terms or concepts into the instructions, or confusing the jurors, when it modifies pattern instructions. (See People v. Noguera (1992) 4 Cal.4th 599, 642-643.)
Unlawful possession of a firearm is a general intent crime. (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, fn. 3.) Unlawful possession of ammunition is similarly a general intent crime. (CJER Mandatory Criminal Jury Instructions Handbook (2018) § 2.45, p. 62.) The requirement that possession be knowing does not translate to a specific intent; it means that the defendant must knowingly have possession and not be unaware of the prohibited item’s presence. (People v. Rubalcava, supra, 23 Cal.4th at pp. 331-332.) The jury properly was instructed that Green’s possession had to be knowing, rather than unaware or accidental. There is no reasonable likelihood the jury misunderstood that requirement. (People v. Kelly (1992) 1 Cal.4th 495, 525.)
A pinpoint instruction need only be given on request. (People v. Anderson (2011) 51 Cal.4th 989, 996-997.) Green did not request clarification or amplification of the pattern instructions, nor did he object to the pattern instructions. “‘A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.’” (People v. Livingston (2012) 53 Cal.4th 1145, 1165.) To the extent Green is claiming the pattern jury instructions needed amplification or clarification, he has forfeited this claim.
II. Expert Testimony Instruction
Craft testified he found a backpack in the vehicle Green was driving that contained .12-gauge shotgun shells and .38 special bullets that were live, meaning they had not been fired from a weapon. Castillo testified he found a handgun in a trash can, with four bullets in the magazine and one in the chamber; all five bullets were live.
Green argues that the trial court was required to instruct sua sponte with CALCRIM No. 332 on expert opinion evidence because Craft and Carillo testified regarding ammunition. Green contends failure to instruct on expert testimony was prejudicial error and requires reversal of count 2. We conclude any error is not prejudicial.
An instruction such as CALCRIM No. 332 must be given sua sponte when expert testimony has been received. (§ 1127b; People v. Reeder (1976) 65 Cal.App.3d 235, 241.) However, “‘“the erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given.”’” (People v. Williams (1988) 45 Cal.3d 1268, 1320, abrogated on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 560-561; People v. Reeder, supra, at p. 241.)
We look to the entire instructions given to the jury to determine prejudice. (People v. Williams, supra, 45 Cal.3d at p. 1313.) Assuming the officers testified as experts and CALCRIM No. 332 should have been given, we conclude any error in failing to instruct on expert testimony was harmless. Based upon the totality of the evidence presented and the instructions given, we believe the jury would not have rendered a different result had the instruction been given.
We note the jury was instructed with CALCRIM No. 226, the general instruction on evaluating witnesses. Like CALCRIM No. 332, CALCRIM NO. 226 instructed the jurors that they must decide the credibility of the witness and informed the jurors that they had to decide if the witness’s testimony was true and accurate. It also stated they were free to believe all, part, or none of the witness’s testimony. The instruction explained that in evaluating the witness’s testimony, they could consider anything that reasonably tended to prove or disprove the truth or accuracy of his testimony, including how reasonable the testimony was when all the other evidence was considered and did other evidence prove or disprove any fact about which the witness testified. The jury also was instructed with CALCRIM No. 2591, which instructs that “ammunition” must be “capable of being fired from a firearm with a deadly consequence. Ammunition includes reloaded ammunition.”
In addition, at trial Green did not challenge the testimony of the officers that the ammunition was live and capable of being shot from a weapon. The trial strategy was to challenge Green’s connection to the ammunition and firearm, by suggesting the items belonged to someone else, and any possession of the prohibited items by Green was unknowing. Defense counsel queried whether there was any identification or “anything … that identifies” Green as the owner of the backpack, to which there was a negative response; elicited testimony that no fingerprints were found on the firearm or ammunition; and argued during closing argument that Green was unaware of the presence of a firearm or ammunition in the car he was driving.
Any error in failing to instruct on expert testimony is not prejudicial as the jury would not have rendered a different verdict on count 2 had the instruction been given.
DISPOSITION
The judgment is affirmed.