P. v. Peterson

Filed 10/9/07 P. v. Peterson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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After deliberating for 35 minutes, a jury convicted defendant Russell Ernest Peterson of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)); possession of cocaine, methamphetamine, and marijuana for sale (Health & Saf. Code,  11351, 11378, 11359); and possession of ammunition by a felon (Pen. Code, 12316, subd. (b)(1)). The jury also found true the allegation that he was personally armed with a firearm during the commission of the drug offenses. (Pen. Code,  12022, subd. (a)(1), 12022, subd. (c).) On appeal, he claims instructional error and insufficiency of the evidence. We affirm.

FACTS

Prior to serving a search warrant, a Sacramento County Sheriffs deputy surveilled defendants house on October 27, 2005. He observed a number of people approach and leave the house within a short period of time. Inferring that drug sales were in progress, he decided to accelerate service of the warrant and called the other members of his team to the house.

Defendant, who was standing with a group of people in front of his house, ran inside. The deputies, deterred for a short while by a locked metal security screen, forced entry but defendant was nowhere to be found. One of the deputies noticed the screen was off an open window leading to the back yard and saw barking dogs against the fence. Another deputy, who was in the front yard, ran to the side of the house and saw defendant climbing over the back yard fence. He had a large white object in his hand. The deputy yelled at defendant to stop; defendant looked at him but kept running. He was taken into custody in a neighbors yard a few minutes later.

The deputies confiscated substantial quantities of narcotics found along defendants attempted flight path. A gallon-sized plastic baggie contained five smaller bags of white and tan powder, a crystalline substance, and white rocks. Another baggie contained marijuana buds. Yet another baggie containing white powder was left in a flowerbed.

The deputies searched the residence. Surveillance cameras provided a view of the front entryway from a television monitor in the master bedroom. In a dresser in the same room, the deputies found defendants California identification card, plastic sandwich baggies, and two digital scales. In the closet of the master bedroom, the deputies found twelve $100 bills, two $50 bills, thirty-four $20 bills, and two $10 bills.

While the deputies were conducting their search, the telephone rang many times. One of the deputies answered four of the calls. Each time the caller asked, Is it clear to come through? After receiving a positive response, each caller hung up. Within about ten minutes of the calls, three people appeared at the house.

The deputies found methamphetamine in a cellophane bag in the living room and a box of shotgun shells in the room next to the master bedroom. The ammunition was the same as that found in a loaded 12-gauge shotgun propped up in a hallway closet. The shotgun was not registered.

The contraband, the shotgun, the ammunition, and the money were examined for possible latent prints but only one usable print was found on one of the shotgun shells. The print did not match defendant.

There were no beds in the two other bedrooms. There were no womens clothes in the master bedroom or anywhere else in the house. All the clothing in the house appeared to be male clothing of one size. The parties stipulated that the total quantities seized exceeded 63 grams of cocaine, 91 grams of methamphetamine, and 68 grams of marijuana.

Defendant married 21-year-old Robyn Byrnes after he was incarcerated. She testified she had lived with defendant for three years before he was arrested for the possession charges; the cash in his shirt pocket was tips she had earned and was saving for a cruise; defendants brother had lived in the bedroom where the deputies found the ammunition and would often come and go; a lot of people visited their house to see their pit bull puppies; she had never seen defendant either use or sell drugs and, in fact, had never seen drugs in the house; and when she left for work about 1:30 in the afternoon on October 27, 2005, defendant was in bed with a sore throat and friends were visiting.

DISCUSSION

I. INSTRUCTIONAL ERROR

Facilitative Nexus

Defendant contends the trial court committed reversible error by failing to instruct the jury sua sponte that there must be a facilitative nexus between being personally armed and the underlying crimes of narcotics possession for sale. Defendant misunderstands the meaning of facilitative nexus and ignores pivotal jury findings.

It is true, as defendant argues, that in reviewing an insufficiency of the evidence argument in People v. Bland (1995) 10 Cal.4th 991 (Bland), the California Supreme Court explained that weapon possession during the commission of a crime must have some facilitative nexus to that offense. (Id. at p. 1002, italics omitted.) And in Bland, evidence that weapons hidden under a bed in close proximity to a closet where officers found almost 18 grams of cocaine raised a reasonable inference of the requisite link between the two. (Id. at p. 1005.) But the court also explained that for a defendant to be subject to additional punishment for being armed with a firearm, California law requires the arming to be in the commission or attempted commission of the underlying felony. ([Pen. Code,] 12022, subd. (a)(1).) With respect to felony drug possession, a defendant is armed in the commission of that crime so long as the defendant had the firearm available for use in furtherance of the drug offense at some point during the defendants possession of the drugs. (Bland, supra, 10 Cal.4th at p. 1002.) In other words, according to the court, the presence of the weapon cannot be the result of accident or coincidence. (Ibid., italics omitted.)

Defendants case is much different from Blands. Like Bland, defendant was charged with and convicted of an arming enhancement. The jurors were instructed that if they found him guilty of each of the possession of narcotics counts, they had to determine whether the prosecution proved beyond a reasonable doubt that defendant was unlawfully armed with a firearm when he was arrested for that crime. The court further explained that a person is armed with a firearm when that person one, carries a firearm or has a firearm available for use in either offense or defense; and, two, knows that he has a firearm available. These instructions were similar to the instructions given in Bland.

But defendant, unlike Bland, was also charged with the substantive crime that he was a felon in unlawful possession of a firearm. As to this count, the court instructed the jury: For a further and separate cause of action, being a different offense from but connected in its commission with the charges set forth in Counts One through Three hereof, on or about October 27th, 2005, in the County of Sacramento, State of California, the defendant committed a crime, namely, a violation of section 12021(a) of the Penal Code, in that the said defendant did willfully and unlawfully own, possess or have custody and control of a firearm, to wit, a .12 gauge [sic] shotgun, the said defendant having heretofore been duly and legally convicted of a felony.

As to this separate count of weapon possession, the court told the jury the People must prove that one, the defendant possessed a firearm; two, the defendant knew that he possessed the firearm; and, three, the defendant had previously been convicted of a felony. Defendant and the People stipulated that defendant was previously convicted of a felony, and defendant does not challenge the adequacy of these instructions. The jury found defendant guilty of unlawfully possessing a firearm and also guilty of possessing large quantities of cocaine, methamphetamine, and marijuana.

For the first time on appeal, defendant now challenges the instructions on the arming enhancements, objecting to the absence of an instruction on a facilitative nexus between the firearm and the drug possession for sale. We will leave it to the California Supreme Court to decide whether the facilitative nexus principle must be overtly incorporated into the jury instructions.^[1] Here we conclude instructional error, if any, was harmless beyond a reasonable doubt. Defendant was armed within the meaning of a Penal Code section 12022 enhancement as long as the firearm was available for use at some point during his possession of the drugs. By finding defendant guilty of the unlawful firearm possession as a felon at the same time he possessed drugs for sale, the jury necessarily rejected the defense theory that the gun belonged to defendants brother and defendant did not know it remained in his hall closet. Moreover, the jury also found that defendant possessed the box of ammunition, the same ammunition found loaded in the shotgun in the hall closet.

As a result, we are convinced beyond a reasonable doubt that the failure to instruct on any facilitative nexus was harmless. This jury was convinced that defendant, a felon, possessed a firearm and, according to the unchallenged instruction, the possession was connected in its commission with his possession of narcotics for sale. The jurys finding that defendant was a felon in possession of a firearm and possession of drugs means, under the rationale of Bland, that the presence of the firearm was not the result of accident or coincidence. (Bland, supra, 10 Cal.4th at p. 1002.) Rather, according to the jury, defendant knew he possessed the firearm, and he knew he possessed the drugs. Since it found him guilty of possession of a firearm and possession of the drugs that, under the facts of this case, occurred simultaneously, the jury necessarily found the requisite connection between the two; the presence of the gun was neither accidental nor coincidental. It is not reasonably probable the jurors would have found the gun was not available for use at some point during the time he possessed the drugs. If, as defendant argues, trial courts have a sua sponte obligation to instruct on a facilitative nexus, the failure to do so in this case was clearly harmless beyond a reasonable doubt.

Reasonable Doubt

Defendant also complains about the reasonable doubt instruction embodied in Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 220. He raises the familiar refrain that an instruction impermissibly dilutes the prosecutions burden of proof. His recycled argument has been rejected before and we reject it here.

CALCRIM No. 220 provides, in pertinent part, as follows: A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime [and special allegation] beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt . . . .

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.

Minimizing the express language of the instruction wherein the jurors are told that a criminal defendant is presumed innocent and, as a corollary, the prosecution bears the burden of proof beyond a reasonable doubt, defendant contends that requiring the jury to impartially compare and consider all the evidence supplanted the presumption of innocence with a mere civil standard of impartiality. (Coffin v. United States (1895) 156 U.S. 432, 453 [39 L.Ed. 481].) In his view, the phrase impartially compare implies a weighing of two opposed sets of evidence when a defendant need not produce any evidence to be compared at all. He also objects to inclusion of language requiring a mere abiding conviction without explaining to the jury that such a conviction requires a subjective certitude that is both grave and abiding. In sum, defendant insists the instruction makes the reasonable doubt and presumption of innocence language a charade, indistinguishable from a mere comparative civil standard of proof. Construing the instruction as we believe a reasonable juror would, we can find no constitutional deficiency. (Boyde v. California (1990) 494 U.S. 370, 379-380 [108 L.Ed.2d 316].)

The issue presented is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385].) In other words, is there a reasonable likelihood the jurors understood the instructions to allow a conviction based on proof less than beyond a reasonable doubt? The United States Supreme Court rejected a similar argument to the analogous CALJIC No. 2.90 in Victor v. Nebraska (1994) 511 U.S. 1, 16 [127 L.Ed.2d 583] (Victor).

Where CALCRIM No. 220 uses the verbs compare and consider all the evidence, CALJIC No. 2.90 uses the nouns requiring the entire comparison and consideration of all the evidence by the jury. When read in the context of the entire instruction, the Supreme Court concluded in Victor that the sanctity of the presumption of innocence and the prosecutors elevated burden of proving guilt beyond a reasonable doubt remained intact. We too believe that defendant is placing undue emphasis on isolated language while ignoring the simple and direct language requiring the jury to presume defendant is innocent and put the prosecutor to the burden of proving his guilt beyond a reasonable doubt.

Nor are we concerned that a reasonable juror when instructed to reach an abiding conviction will fail to give it the grave consideration necessary. An abiding conviction connotes the weighty nature of the judgment and the importance of the decision. Again, we think that it is not reasonably likely that a juror would diminish the seriousness of the task and thereby dilute either the presumption of innocence or the reasonable doubt standard.

II. insufficiency of the evidence

Defendant requested the court to exclude evidence of his prior convictions and any mention of being sentenced to state prison. The court was willing to bifurcate the proceedings and prevent the jury from hearing the kind of prior conviction if you and your client are willing to stipulate that he was, in fact, convicted of a felony. Defendant and his counsel stipulated that he had been convicted of a felony, and the court granted the request that the jury not hear about your prior conviction and the prior conviction that makes it illegal to possess ammunition and a gun. Without challenging the validity of the stipulation or the truth of the underlying convictions, defendant now asserts that there is insufficient evidence to support the jury finding he was a felon in possession of a firearm because the prosecutor failed, through inadvertence or mistake, to introduce evidence of the stipulation.

We agree with the Attorney General that reversal is not justified on the record before us. The court acceded to defendants request not to introduce evidence of his prior convictions before the jury. During closing arguments, both the prosecution and the defense referred to the fact that defendant admitted by stipulation that he was a person with prior felonies. The jury was not asked to decide the truth of the allegation because defendant had admitted one of the elements of the crime; that is, that he was a felon. Moreover, the court instructed the jury that defendant had admitted his prior felony conviction. Based on his request, his admission, and his acquiescence, defendant cannot now be heard to challenge the sufficiency of the evidence that he was a felon.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

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^[1] The Supreme Court has granted review to determine how Bland, supra, 10 Cal.4th 991 affects the trial courts duty to instruct on a facilitative nexus. (People v. Pitto, review granted Feb. 8, 2006, S139609.)