P. v. Johnson

Filed 10/30/06 P. v. Johnson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant was convicted by jury trial of taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)),^[1] possession of a firearm by a felon (Pen. Code, § 12021.1, subd. (a)),^[2] possession of ammunition by a felon (§ 12316, subd. (b)(1)), possession of drug paraphernalia (Health & Saf. Code, § 11364), and receiving stolen property (§ 496, subd. (a)). A prior strike allegation was found true by the court and defendant was sentenced to a total of nine years, eight months in state prison. On appeal, defendant contends that the prosecutor committed misconduct during her opening statement, that the trial court erred in permitting a police officer witness to demonstrate how his firearm operated, that his sentence for felon in possession of ammunition should have been stayed pursuant to section 654, and that Blakely (Blakely v. Washington (2004) 542 U.S. 296) error occurred. We find no reversible error and affirm.

BACKGROUND

Defendant was charged by information with carjacking (§ 215, subd. (a)), with a use of a firearm allegation pursuant to section 12022.53, subdivision (b), possession of a firearm by a felon (§ 12021.1, subd. (a)), possession of ammunition by a felon (§ 12316, subd. (b)(1)), possession of drug paraphernalia (Health & Saf. Code, § 11364), and receiving stolen property (§ 496, subd. (a)). The information also alleged a prior strike conviction, pursuant to section 1170.12, subdivision (c)(1), a serious felony prior conviction, pursuant to section 667, subdivision (a), and a violent prior prison conviction, pursuant to section 667.5, subdivision (a). The matter proceeded to jury trial, where the following evidence was adduced.

Defendant had made arrangements to purchase a vehicle from the victim, Everett Robinson.^[3] The car was to be purchased from the victim for $500; defendant planned to use it to sleep in, as he was homeless. On December 31, 2004, the victim drove the vehicle to defendant’s grandmother’s home, located at 1128 O’Conner Street in East Palo Alto. Defendant met the victim at that location and test drove the car. After returning to the O’Conner Street address, defendant went inside, telling the victim to complete the necessary paperwork. After approximately 15 minutes, defendant returned and got into the backseat of the car. The victim heard something click, looked back, and saw that defendant was loading a pistol that appeared to be a .45-caliber semiautomatic. The victim was fearful and moved over to the driver’s side, intending to leave. Defendant pulled back the bolt on the gun and a bullet fell out. When the victim got out of the car, defendant pointed the gun at him and told him to step back. Defendant told the victim that he was just playing around, but said there was a round in the chamber of the gun. Defendant then drove off in the car, running a stop sign.

The victim remained at the O’Conner street address, and defendant returned with another male in the car. The victim told defendant that he wanted the car back; defendant pointed the gun at him again and told him to stay where he was. The victim said he would call 911, and the two men drove off in the car. The victim did place a call to 911, but also flagged down two police officers who were in the area and reported the crime. One of the officers had been at a market where the victim and defendant stopped during the test drive, and had seen defendant. Another officer had witnessed defendant run the stop sign earlier.

The victim had a prior relationship with defendant’s sister, Jolaunda Johnson. Ms. Johnson called the victim later on December 31 and asked for money. The victim told Ms. Johnson that her brother had stolen a car from him. Ms. Johnson replied that defendant had been “illing,” which the victim took to mean that defendant needed drugs. Ms. Johnson testified for the defense at trial and indicated that she had known the victim for 14 years and had done drugs with him in the past. They lived together for three years (1992-1995); she had an occasional dating relationship with the victim through December of 2004. On December 31, 2004, she saw the victim and her brother go off to test drive the car that the victim was selling to her brother, and later saw them return to her grandmother’s house and do paperwork in the car. The victim had promised to get Ms. Johnson a car to replace one he had previously given to her (which was having mechanical problems). That same day, the victim had asked Ms. Johnson to go to a motel with him, which she angrily declined. Before Ms. Johnson left her grandmother’s house, the victim told her he would be calling the police on defendant, as he had stolen his car. Ms. Johnson admitted that she had been convicted of several charges of petty theft, welfare fraud, and giving false information to a police officer.

Defendant’s grandmother, Earlie Johnson, testified for the defense. She indicated that her granddaughter, Jolaunda Johnson, had a relationship with the victim. The victim would periodically come by her house on O’Conner street. She had seen defendant and the victim speaking to each other in the past. She recalled the victim and her granddaughter arguing over a car at the end of 2004.

Defendant was convicted of all crimes except the carjacking. He was acquitted of carjacking, but found guilty of the lesser included offense of taking a vehicle without the owner’s permission. (Veh. Code, § 10851, subd. (a).) Defendant waived his right to a jury trial on the prior convictions; the court found true the strike prior allegation and a prison prior pursuant to sections 667.5 (b) and 1170.12, subd. (c)(1).^[4] Defendant was sentenced to a total of nine years, eight months in state prison.^[5]

DISCUSSION

A. The Prosecutor’s Comments During Opening Statements.

Defendant contends that the prosecutor committed misconduct during opening statement by “unfairly maligning“ defendant by referencing his prior criminal record. Defendant had agreed to stipulate to his prior felony conviction, relevant to the charges of felon in possession of a firearm and felon in possession of ammunition. This stipulation indicated that defendant had in fact been convicted of a requisite felony, but kept the nature of the crime (a robbery) from the jury. The statements by the prosecutor that defendant specifically complains of were made in reference to those two charges, as she explained that defendant (1) “Can’t have a gun. That’s a crime. It’s contraband to him, not to honest people, but to a felon,” and (2) “You cannot have ammunition if you are a felon. It’s contraband, not to law-abiding people. But to a felon, it’s contraband.” Defendant argues that these statements improperly attacked his credibility.

Prosecutorial misconduct during opening statement is not grounds for reversal unless it was prejudicial or so egregious as to deny the defendant a fair trial. (People v. Harris (1989) 47 Cal.3d 1047, 1080.) Further, unless an admonition would not have cured the harm caused, or the objection or request for admonition would have been futile, defendant must object, or request a curative admonishment, below in order to preserve the issue for appeal. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) When the claim of prosecutorial misconduct focuses on comments before the jury, “the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (Ibid.) A conviction will not be reversed for prosecutorial misconduct unless it is reasonably probable that a result more favorable to the defendant would have been reached absent the misconduct. (People v. Scott (1997) 15 Cal.4th 1188, 1217.)

We question whether the prosecutor’s brief remarks here rose to the level of prosecutorial misconduct. While it is misconduct for a prosecutor to make remarks in opening statement that refer to evidence previously ruled inadmissible by the trial court (People v. Crew (2003) 31 Cal.4th 822, 837-838), the prosecutor here did not refer to the nature of defendant’s prior conviction (which was going to be kept from the jury through the proffered stipulation). The remarks were made in the context of explaining that it was a crime for a felon to possess a firearm or ammunition; it was a fair remark to explain that such possession was not illegal for those ordinary citizens who have not previously been convicted of a felony. The prosecutor’s choice of words to describe those who had not previously suffered a felony conviction as “law abiding” hardly seems objectionable. Her reference to defendant as “dishonest” because of his prior felony conviction was a poor choice of words, but was a brief comment in the context of distinguishing between those who may legally possess firearms and ammunition, and those who may not. We find it unlikely that the comments were taken in the manner that defendant claims on appeal was likely--to indicate that he was not a law-abiding, honest person and was therefore someone who could be presumed to be a law-breaker.^[6]

However, assuming that the prosecutor’s remarks were misconduct, the issue was clearly not preserved for appeal due to defense counsel’s failure to object or ask for a curative admonition. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Defendant has failed to demonstrate that an objection would have been futile, or that an admonition would not have cured the alleged harm.^[7] Further, it is not more probable than not that the result of the trial would have been different absent the prosecutor’s remarks. The jury was made aware, through the stipulation, that defendant had previously been convicted of a felony. The prosecutor’s brief reference to those who have not been so convicted as “law-abiding” and to defendant as “dishonest” added little to the mix. The jury was instructed that opening statements are not evidence, and that they were not to be prejudiced against defendant because of his prior conviction. Based upon the entire record, no prejudice resulted from the prosecutor’s brief comments.

B. Officer’s Demonstration of the Operation of Firearm.

Defendant next contends that the trial court erred by permitting Officer Romero to demonstrate how his .40-caliber service pistol operated, as there was no evidence that Romero’s weapon was similar to the one that the victim indicated was used by defendant. Without such a foundation, he argues, the prejudicial effect outweighed the probative value of the demonstration, violating his due process rights.

Admission of evidence, including demonstrative evidence, is left to the sound discretion of the trial court and reversal for improper admission results only if it is reasonably probable that a more favorable result would have attached absent the error. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1388.) Here the victim testified that defendant used what the victim believed was a .45-caliber semiautomatic handgun during the commission of the crime. He heard a clicking sound and observed defendant pull back the slide, or bolt, on the gun at one point, ejecting a bullet. Officer Romero testified that he recovered a .40-caliber bullet from defendant’s pants pocket at the time of his arrest, and that the bullet would have fit into his service pistol. He then demonstrated how the slide and magazine clip of his service pistol functioned. The demonstration served to show how a semiautomatic pistol functions, how the slide works, and whether or not a clicking noise would result from its use. The gun used in the demonstration was of the same caliber as the bullet found in defendant’s possession, and was close to the same caliber as that described by the victim. The trial court did not err in permitting the demonstration. However, even if this was not a sufficient showing of similarity to permit the demonstration, defendant has failed to demonstrate how the evidence prejudiced him--that it is reasonably probable that he would have been acquitted absent the demonstration.

C. Sentence for Possession of Ammunition.

The trial court imposed a consecutive term of eight months, doubled to 16 months due to defendant’s prior strike, for the charge of felon in possession of ammunition. Defendant contends that this sentence must be stayed pursuant to section 654, citing People v. Lopez (2004) 119 Cal.App.4th 132. Lopez is clearly distinguishable on its facts; section 654 does not require that the consecutive sentence imposed herein be stayed.

Section 654 prohibits “ ‘ “multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ [Citations.] However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonable deduce from the evidence. [Citation.]” (People v. Jones, supra, 103 Cal.App.4th 1139 at p. 1143.)

In Lopez the defendant was sentenced to six years in state prison for unlawful possession of a firearm and a concurrent six year term for unlawful possession of ammunition. In addressing what the court noted was an issue of first impression in California, Lopez held that section 654 prohibited multiple punishment for both offenses, noting “[t]o allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple punishment.” (People v. Lopez, supra, 119 Cal.App.4th at p. 138, italics added.)

The possession of ammunition charge here, by contrast, was based not upon ammunition loaded into the firearm at the time of its charged possession on December 31, 2004, but upon the single bullet found in defendant’s pocket at the time of his arrest on January 3, 2005. The possession of the ammunition was thus not a part of one indivisible course of conduct.

While the court in Lopez additionally noted that possession of ammunition alone will not aid a defendant committing another crime (as could an unloaded firearm) (People v. Lopez supra, 119 Cal.App.4th 132 at p. 138), the ammunition here was possessed by defendant several days after the other crimes of which defendant was convicted, including the possession of a firearm by a felon. The ammunition could have been used in the weapon used in the other offenses, or in some other gun.

We find this case analogous to those cases where a defendant is charged both with using a firearm during a given felony, and with possession of a firearm by a felon. If the evidence establishes that the defendant possessed the firearm either before or after the defendant committed the other offense, i.e., unless the evidence shows that fortuitous circumstances placed the firearm into the defendant’s hand only at the instant he committed the other crime, section 654 does not preclude punishment for both offenses. (People v. Jones, supra, 103 Cal.App.4th at pp. 1143-1145; see People v. Garfield (1979) 92 Cal.App.3d 475, 478 [defendant properly sentenced for burglary and possession of weapon by narcotics addict, based upon his possession of the firearm stolen during the burglary when arrested six days later].) Looking to the “important policy consideration” in enacting section 12021, the Jones court noted that an earlier case, People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1409, had distinguished section 12021 from other weapons charges, concluding that “a conviction for firearm possession by a felon represents ‘a unique circumstance in the minefield of section 654 cases in that this charge involves an important policy consideration.’ “ (People v. Jones, supra, at p. 1145.) As Jones concludes, “The Legislature clearly intended, in enacting section 12021, to minimize the danger to public safety arising from free access to firearms, a danger presumed to be greater when the person possessing the . . . firearm is an ex-felon. [Citations.]” (People v. Jones, supra, 103 Cal.App.4th at p. 1145.) As with section 12021, section 12316 is violated whenever a felon intentionally has ammunition in his constructive or actual possession. (People v. Jones, supra, 103 Cal.App.4th at p. 1147.) As noted in the arguments in support of Senate Bill No. 37, which added section 12316 to the Penal Code in 1994, “Oftentimes a firearm itself will be secreted or handed-off to another so that all that is discovered in the possession or control of the ex-felon is a magazine or ammunition and ‘since felons cannot possess any firearms . . . there is no apparent reason to allow a felon possession of ammunition or related equipment.’ “ (Sen. Bill No. 37 (1993-1994 1st Ex. Sess., Pen. Code § 12316).) Thus, section 12316 prohibits the possession, ownership, or control of ammunition, without the presence of the firearm.

In the present case, defendant may, or may not, have had the same ammunition in his possession on December 31, as he did on the date of the charged violation of section 12316 (January 3). Even assuming, however, that the ammunition was in his possession on both dates,^[8] his possession of the ammunition on December 31, when he had the gun in his possession and was using it to steal a vehicle, clearly involved a second intent in addition to his intent of simply possessing the ammunition on January 3. Defendant’s possession of the ammunition on January 3, “thus comprised a ‘separate and distinct transaction undertaken with an additional intent which necessarily is something more than the . . . intent’ “ to possess the ammunition on December 31. (People v. Jones, supra, 103 Cal.App.4th at p. 1147.) Imposition of a consecutive term for the violation of section 12316 did not violate section 654.

D. Alleged Blakely Error.

The trial court imposed an aggravated term on the felon in possession of a firearm charge, and imposed consecutive sentences on several counts. Defendant contends that his sentence was imposed in violation of Blakely, supra. Noting that this court is bound by the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (holding Blakely inapplicable to California’s determinate sentencing scheme), defendant nevertheless raises the Blakely issue to preserve it for federal court review.^[9] Under principles of stare decisis, we are bound by Black and find no error in defendant’s sentencing. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

_________________________

Sepulveda, J.

We concur:

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Ruvolo, P.J.

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Reardon, J.

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^[1] Defendant was found guilty of this crime as a lesser included offense of carjacking (Pen. Code, § 215, subd. (a)); the jury acquitted defendant of the greater offense.

^[2] All further section references are to the Penal Code, unless otherwise indicated.

^[3] The victim apparently was in the business of buying used cars at auction and reselling them for a profit after fixing their mechanical problems, although he did not have a license to sell vehicles wholesale.

^[4] An amended information was filed which deleted the serious felony allegation and deleted the violent prison prior allegation, replacing it with a simple prison prior allegation, pursuant to section 667.5, subdivision (b).

^[5] The sentence consisted of the aggravated term of three years on the possession of a firearm by a felon charge, doubled to six years due to defendant’s prior strike, plus two consecutive terms of eight months each, doubled to 16 months each, for the taking of a vehicle without the owner’s permission charge and the possession of ammunition by a felon charge. The court imposed a concurrent term for the misdemeanor possession of drug paraphernalia charge, and imposed an eight-month sentence for the receiving stolen property charge, but stayed it pursuant to section 654. The court also imposed one year for the prison prior.

^[6] We note that defendant did not testify at trial; the only relevance of his prior conviction was to establish the requisite elements for the charges of felon in possession of a firearm and felon in possession of ammunition.

^[7] Defendant also contends that his counsel was ineffective for failing to object or request a curative admonition. Even assuming the comments constituted misconduct, it is not more probable that a different result would have attached but for his counsel’s inaction and no prejudice resulted. (Strickland v. Washington (1984) 466 U.S. 668, 679.)

^[8] The victim testified that the bullet recovered from defendant’s pocket was identical to the one that was discharged from defendant’s gun on December 31.

^[9] As defendant notes, the United States Supreme Court has granted certiorari on this issue in Cunningham v. California, no. 05-6551, certiorari granted Feb. 21, 2006, ___ U.S. ___, 126 S.Ct. 1329.