P. v. Steward

Filed 1/30/07 P. v. Steward CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed.

Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

________________________________________

Defendant Brian Steward was charged with being a felon in possession of a firearm in violation of Penal Code, section 12021, subdivision (a)(1),^[1]and illegal possession of ammunition in violation of section 12316, subdivision (b)(1). As to both counts, it was alleged that defendant suffered one serious or violent felony conviction under the three strikes law ( 1170.12, 667, subds. (b)-(i)), and that he served six prior prison terms ( 667.5, subd. (b)). The jury acquitted defendant of the firearm count, but found him guilty of the ammunition count. In the bifurcated proceeding on the prior conviction allegations, defendant waived his constitutional trial rights and admitted the convictions. The trial court imposed a nine-year prison term comprised of the two-year middle term for the ammunition possession offense, doubled under the three strikes law, plus five years for the prison term enhancements.^[2]

In his timely appeal, defendant contends there was constitutionally insufficient evidence to support his conviction and the trial court prejudicially erred in failing to instruct the jury sua sponte that it must unanimously agree on the conduct that supported the convictionpossession of either the shotgun shells or the handgun rounds found in the trailer defendant shared with his father. We reject the first contention. As to the second, we find the unanimity instruction was warranted, but the error was harmless under the circumstances.

STATEMENT OF FACTS

Prosecution Case

Defendant was released from custody and paroled on January 16, 2003.^[3] He listed a specific trailer space in a Lancaster mobile home park as his residence for parole purposes. By June 2005, defendant had violated the conditions of his parole by failing to maintain contact with parole authorities. James Gaupel was a parole agent charged with apprehending such parolees. On the evening of June 21, 2005,^[4]Agent Gaupel, along with members of the Los Angeles County Sheriffs Department, including Deputy Jeffrey Knittel and his partner Deputy Izzo, attempted to contact defendant at the trailer park. When they knocked on the door of the trailer, there was no answerbut the lights and television were on inside.

The deputies entered the trailer and found it unoccupied. An unloaded 12-gauge shotgun was recovered by the door inside the back bedroom. A disassembled, double-barreled 12-gauge shotgun was found nearby, between a bookcase and an aquarium containing snakes. The deputies also found numerous 12-gauge shotgun shells on the floor by the shotguns and additional shotgun shells in a blue pouch. Inside an old fishing tackle box on the bookshelf, the deputies found fifty-five .38 special caliber rounds of handgun ammunition loose in a tray and inside plastic prescription bottles. As a parolee, defendant would have been advised that he was not to own or possess any firearms or ammunition.

A Nazi flag was hanging on the back bedroom wall. The deputies found letters addressed to defendant on the same bookshelf as the tackle box. Two of the letters had prison addresses and one was addressed to the trailer space. The postmarks indicated the letters had been sent in 1997 and 1998. The deputies also found a plastic bag containing a substance that appeared to be narcotics. Testing revealed, however, that it was merely a substance called M.S.M, which is used to cut methamphetamine for the purpose of sale. In another room of the trailer, the deputies found a small tin containing 3.73 grams of methamphetamine and an identification card in the name of defendants father, Gene Steward. Mr. Steward, who had approached the deputies at some point prior to the trailer search, was arrested at the scene.

Deputies Knittel and Izzo returned to the trailer two days later to arrest defendant. Deputy Izzo knocked on the trailers front door. A voice from inside responded, Who is it? Deputy Izzo said, Open the door. Its the sheriffs department. There was no response. The deputies called for backup assistance. When supporting deputies arrived approximately 30 to 45 minutes later, Deputy Knittel forced open the door and entered along with Deputy Izzo and Sergeant Sylvies. They discovered defendant in the bathroom, hiding in the bathtub with the shower curtain closed; his two-year-old son was with him. Defendant was wearing swim trunks. He had numerous tattoos on his body indicating membership in a white supremacist gang.

After his arrest, the deputies placed defendant in a squad car. Defendant waived his constitutional rights under Miranda^[5]and told Deputy Knittel that the shotguns and the shotgun shells were not histhey belonged to defendants friend Shawn, who had put them in the back bedroom approximately two weeks earlier with defendants permission. As to the handgun ammunition, defendant acknowledged that he knew it was in the room, but said, Thats just a bunch of junk. He did not assert that it belonged to anyone else. When questioned regarding the back bedroom, defendant said it was his. Defendant, who was still wearing only swim trunks, asked Deputy Knittel to retrieve his clothes, directing the deputy to a black duffel bag on the floor of the trailers back bedroom. The clothes fit defendant.

Defense Case

Mr. Steward testified that he was a 20-year resident of the trailer where the guns and ammunition were found. Defendant moved away in December 2004, but would check in approximately once a month to see how his father was doing. Defendant occasionally spent the night in the trailer. According to Mr. Steward, defendant always stayed in the front bedroom, which defendant kept locked. Mr. Steward did not have the key to the front bedroom. Defendant did not use the back bedroom, which Mr. Steward said was his own. Mr. Steward, however, did not sleep there because it had no bed. Instead, Mr. Steward slept on the living room couch, using the back bedroom for storage.

Mr. Steward was visiting his next door neighbor when the deputies searched his trailer on June 21. He came outside and told the deputies there was no one inside. Mr. Steward never told the deputies that the back bedroom was defendants. Mr. Steward did not know about the shotguns in the back bedroom; he had never seen them before the search uncovered them. The deputies did not ask him about the ammunition. Mr. Steward testified that the bullets were his, which he kept as memorabilia, claiming that some of the ammunition was vintage, date-stamped 1940 lead bullets. Mr. Steward did not keep any guns, and he had forgotten about the bullets.

Mr. Stewards neighbors had a son named Shawn Donaldson, who came into town from Arizona in the early morning hours of June 21. Mr. Steward was visiting the Donaldsons in the trailer next to his own when Shawn arrived. Just before Mr. Steward left the Donaldsons trailer, Shawn asked to store a few things in Mr. Stewards trailer. Mr. Steward agreed and asked Shawn to take them in through the trailers back door, while Mr. Steward went to sleep in the front room. He did not know Shawns things included guns or he would not have consented.

On cross-examination, Mr. Steward admitted he was arrested on June 21, and pled guilty to possession of methamphetamine and a related narcotics offense. Although Mr. Steward knew defendant was wanted by the parole department, he did not hide defendant in his trailer, nor did he admit to a deputy that he was guilty of harboring defendant there.

Mr. Donaldson testified that he and his family had lived in the trailer next to Mr. Stewards for 20 years, but Shawn moved to Arizona in the fall of 2004. Shawn drove back home to the Lancaster trailer park on June 20, arriving at 2:30 a.m. the following day. Among the items he brought back from Arizona were the two shotguns the deputies found in the back bedroom of Mr. Stewards trailer. Shawn had a receipt for the double-barreled shotgun, which he had purchased at an Arizona gun shop on April 6. He bought the other shotgun a month later at an Arizona yard sale. Shawn recognized the shotgun shells recovered by the deputies as the ones he bought at that same yard sale.

When Shawn returned to Lancaster on June 21, he asked Mr. Steward if he could store some of his belongings in the latters trailer. Mr. Steward agreed and left the trailers back door open for Shawn, who stored the shotguns, shells, and a small bag of clothes in the back bedroom. He placed the shotguns next to the bookshelf, the shells on a shelf, and the duffel bag on the floor. Some of the shells were in a box; the others were in a bag. When Shawn returned to the trailer park that evening, he saw the sheriffs deputies removing the shotguns from Mr. Stewards trailer. Shawn told them, Those are my firearms. The deputies ignored his statement and did not question Shawn about the shotguns. The next day, Shawn went to the sheriffs station in an unsuccessful attempt to retrieve his shotguns.

Rebuttal and Surrebuttal

Deputy Knittel testified that at the time of Mr. Stewards arrest, he admitted to the deputy that he knew defendant was wanted by the parole authorities and he should not have hidden defendant in his trailer. Mr. Steward also told the deputy the trailers back room was defendants.

Deputy Steven Lehrman spoke to Mr. Steward at the time of the June 21 trailer search. Mr. Steward told the deputy that defendant lived in the trailer and defendants room was [a]ll the way down the hallway at the very end.

In surrebuttal, Mr. Steward testified that he told the deputy that defendants room was the locked room down the hall, and the back room was Mr. Stewards.

DISCUSSION

Sufficiency of Evidence

In essence, defendant contends insufficient evidence supported his ammunition possession conviction because the prosecutions case was speculative as to the possession and knowledge elements of the offense. We reject the contention because our review of the record shows the evidence of both elements was reasonable, credible, and solid.

The standard of review is well settled. In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] We apply an identical standard under the California Constitution. [Citation.] In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1175.)

We therefore review the record in the light most favorable to the prosecution to determine whether the challenged convictions are supported by substantial evidence, meaning evidence which is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In contrast, mere speculation cannot support a conviction. [Citations.] (People v. Marshall (1997) 15 Cal.4th 1, 35.) In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citations.] (People v. Young, supra, 34 Cal.4th at p. 1181.)

The trial court properly instructed the jury as to the elements of the charged offensethat defendant knowingly had the ammunition under his custody or control. ( 12316, subd. (b)(1); CALCRIM No. 2591.) As the trial court also instructed the jury, the parties had stipulated to the remaining elementdefendants prior felony conviction. A defendant has constructive possession of a firearm (or, analogously, ammunition) that is not in his physical possession, but over which he knowingly exercises control or the right to control. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083.) It is not necessary to prove exclusive possession of the prohibited item or of the place where it is found. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Dominion and control may be shown by circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Williams (1971) 5 Cal.3d 211, 215; People v. Neese (1969) 272 Cal.App.2d 235, 245-246.)

The evidence that defendant constructively possessed the ammunition was strong. Defendant admitted to Deputy Knittel that the back bedroom was his. That evidence was corroborated by Mr. Stewards statements to Deputies Knittel and Lehrman, along with the fact that defendant kept his clothes there, which also tended to prove the other personal possessions in that room were his. The white supremacist tattoos on defendants body further tied him to the back bedroom, which displayed a Nazi flag. Most significantly, defendant admitted to Deputy Knittel that he knew the handgun rounds and shotgun shells were in the back bedroom. When asked about the shotguns and shells, defendant said that they were Shawns, thereby admitting his knowledge of their presence. When asked about the handgun rounds, he referred to them as a bunch of junk, but he did not claim they were anyone elses. Similarly, defendant admitted that he knew about the M.S.M. on the same back bedroom shelf, demonstrating his intimate familiarity with the personal property in the room. Indeed, when the deputies suggested it was methamphetamine, defendant accurately represented that it was the non-narcotic substance, M.S.M.

None of the prosecution testimony was physically impossible or inherently improbable. Rather, it supported the reasonable, nonspeculative inference that defendant knowingly possessed the ammunition found in the back bedroom. Contrary to defendants assertion, the fact that Deputy Knittel did not expressly testify that the handgun rounds were live ammunition did not render the prosecutions case speculative. Section 12316, subdivision (b)(2) defines ammunition to include any bullet . . . or projectile capable of being fired from a firearm with a deadly consequence. Not only was it implicit in the deputys testimony that the ammunition did not consist of expended, unusable rounds, but the handgun rounds were shown to the jury and admitted into evidence for their examination. Defendants insufficiency of evidence contention fails.

Unanimity Instruction

Defendant contends the trial court erroneously failed to give the pattern unanimity instruction (CALCRIM No. 3500; see also CALJIC No. 17.01) because his ammunition possession conviction could have been based either on the shotgun shells or the handgun rounds, both found in the trailers back bedroom. As we explain, even if the evidence warranted a unanimity instruction, any error was harmless in light of the particular facts of this case and the defense verdict on the shotgun possession count.

In a criminal case, a jury verdict must be unanimous. (People v. Collins (1976) 17 Cal.3d 687, 693; see Cal. Const., art. I, 16 [expressly stating that in a civil cause three-fourths of the jury may render a verdict and thereby implying that in a criminal cause, only a unanimous jury may render a verdict].) (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases 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. (Ibid.) This requirement of unanimity as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.] (Ibid; People v. Deletto (1983) 147 Cal.App.3d 458, 472 [The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.]).

On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendants precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the theory whereby the defendant is guilty. [Citation.] (People v. Russo, supra, 25 Cal.4th at p. 1132; People v. Wolfe (2003) 114 Cal.App.4th 177, 184.) The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The continuous conduct rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)

Here, count two of the information charged defendant with illegally possessing ammunition on or about June 21, without specifying the type of ammunition. The jury instruction defining the elements of that offense (CALCRIM No. 2591) similarly referred to possession of ammunition, which it described generally in accordance with the statutory definition in section 12316, subdivision (b)(2). Defendant did not request a unanimity instruction.

The Attorney General argues that no unanimity instruction was required because possession of both the shotgun shells and the handgun rounds amounted to a single, discrete crime, which was chargeable only as a single offense. However, our courts have required the giving of a unanimity instruction sua sponte even though the defendants simultaneous possession of multiple firearms constituted only a single crime.^[6] (People v. Wolfe, supra, 114 Cal.App.4th at pp. 184-185, citing People v. Crawford (1982) 131 Cal.App.3d 591, 596; People v. King (1991) 231 Cal.App.3d 493, 501-502 [in a prosecution for possession of narcotics for sale, where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant, absent an election by the People CALJIC No. 17.01 must be given to assure jury unanimity], fn. omitted.)

The Crawford decision is highly instructive. There, officers found the defendant and his girlfriend in his bedroom. They also found a .357 magnum in a holster at the foot of the bed and a .22 Luger in the bedroom closet. Both the defendant and his girlfriend denied ever seeing the gun in the holster. The girlfriend testified that the gun in the closet belonged to her. On rebuttal, the prosecution introduced evidence that two more firearms, a .38 derringer and another .357 magnum, had been found in an upstairs bedroom in which a third person was sleeping. [Citation.] The defendant was convicted of possession of a firearm following a felony conviction. (People v. Wolfe, supra, 114 Cal.App.4th at p. 184, citing, People v. Crawford, supra, 131 Cal.App.3d at pp. 593-595.)

Crawford held it error not to instruct on unanimity even as to the two handguns found in the same room because the evidence presented at trial, if believed, suggested the circumstances surrounding the .22 luger were different than those surrounding either of the .357 magnums, nor were the relevant indicia of possession as to each .357 magnum similar. Certain jurors might quite easily have been persuaded beyond a reasonable doubt that appellant possessed one gun, but not another. (People v. Crawford, supra, 131 Cal.App.3d at p. 598.) Similarly, as to constructive possession, the evidence showed unique facts surrounding the possessory aspect of each weapon. (Id. at p. 599.) That is, although the possession of each was contemporaneous, the possession was fragmented as to space because the [g]uns were in different parts of the house. (Ibid.)

Here, the circumstances concerning the possession of the shotgun shells and the handgun rounds were distinguishable and supported different defenses. Jurors who found Shawns testimony credible could reasonably infer that defendant did not constructively possess the shotguns and shells, but that inference would not logically entail a particular finding as to the handgun rounds. All of the handgun rounds were discovered within a closed container that did not hold any shotgun shells; there were no handgun rounds on the floor. Mr. Steward testified that the handgun rounds had been stored in the back bedroom for so long that he had forgotten about them. Consistent with that testimony, Deputy Knittel referred to the tackle box as being old. Moreover, while Shawns testimony was corroborated to some degree by the shotgun receipt, there was virtually no defense to defendants possession of the handgun rounds, save the extremely dubious and biased testimony by Mr. Steward that defendant did not use the back bedroom.^[7]

In sum, as the evidence of the two acts of possession supported a reasonable inference that they were factually distinct and independent, we find a unanimity instruction was required. (See People v. Wolfe, supra, 114 Cal.App.4th at p. 185; People v. King, supra, 231 Cal.App.3d at p. 501; People v. Crawford, supra, 131 Cal.App.3d at pp. 599-600.)

Nevertheless, we find the error harmless. We recognize [t]here is a split of authority regarding the legal standard to be used to determine the effect of an erroneous failure to give a specific acts unanimity instruction. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545; People v. Wolfe, supra, 114 Cal.App.4th at pp. 185-186.) On the one hand, People v. Vargas (2001) 91 Cal.App.4th 506, 561-562 is representative of cases holding that the state law standard of People v. Watson (1956) 46 Cal.2d 818 (Watson ) applies. Vargas reasoned that the right to a unanimity instruction derives from the state constitutional right to a unanimous jury verdict, while there is no federal constitutional right to a unanimous jury verdict.^[8] (People v. Wolfe, supra, 114 Cal.App.4th at p. 186; People v. Smith, supra, 32 Cal.App.4th at p. 1545.) On the other hand, the line of cases favored by the Smith and Wolfe courts reasons that the Chapman v. California (1967) 386 U.S. 18 standard for federal constitutional error applies because the failure to give a unanimity instruction has the effect of lowering the prosecutions burden of proof, and an instruction that lowers the prosecutions burden of proof violates due process. (People v. Wolfe, supra, 114 Cal.App.4th at p. 186; People v. Smith, supra, 32 Cal.App.4th at p. 1545.)

We need not resolve that conflict since the instructional error in this case was harmless under either standard. Here, the jury unanimously found that defendant did not possess the shotguns. The undisputed evidence demonstrated that the shotgun shells were inextricably linked to the shotguns. Not only did Shawn offer unchallenged testimony to that effect, but Deputy Knittel testified that defendants admissions as to the shotguns applied equally to the shells: The shotgun shell conversation was kind of encompassed in the conversation about the guns, and it was all one and the same. That was also how the trial court understood the evidence. In the context of ruling on defendants Romero motion, it recognize[d] the jury acquitted the defendant of the shotgun offense, but the jury did convict him of possession, even if it was constructive possession, of those [.38 caliber] bullets.

In short, there could have been no rational basis for a juror to find that defendant possessed the shotgun shells once it found he did not possess the shotguns. As such, decisions like People v. Wolfe, supra, 114 Cal.App.4th at page 188 and People v. Smith, supra, 32 Cal.App.4th at page 1547 are plainly distinguishable. Nor was this a case like Crawford in which the reviewing court found an acquittal on a drugs charge provided nothing more than a basis for speculation as to the jurys resolution of a firearm possession offense that lacked the unanimity instruction. (People v. Crawford, supra, 131 Cal.App.3d at p. 600.) The instructional error was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] All further statutory citations are to the Penal Code.

^[2] Although the information alleged six prior convictions in support of the prison term enhancements, two of them resulted in a single prison term.

^[3] The parties stipulated that defendant had been convicted of a felony.

^[4] All dates are in 2005, unless otherwise stated.

^[5]Miranda v. Arizona (1966) 384 U.S. 436.

^[6] As the Attorney General points out, the rationale of In re Carleisha P. (2006) 144 Cal.App.4th 912, 923 supports the conclusion that defendants possession of both types of ammunition constituted a single offense. That decision, however, did not involve the issue of whether a unanimity instruction was required. Defendants appeal does not involve a single crime where guilt could have been premised on different theories (e.g., where defendant could be found guilty for the same offense either a principal or aider and abettor, or where his possession could be actual or constructive). Rather, his ammunition possession conviction was supportable by alternative actsthe constructive possession of either the shotgun shells and/or the handgun roundsnot alternative theories.

^[7] Among other things, Mr. Steward, who testified that he did not like snakes, admitted the two snakes in the aquarium were probably defendants.

^[8] The Vargas court based its holding on Johnson v. Louisiana (1972) 406 U.S. 356, 359, which held that a states criminal verdicts rendered by nine out of twelve jurors are valid. There being no right to a unanimous verdict under the United States Constitution, the question of whether defendant was entitled to a unanimity instruction is a state, not a federal, issue. (People v. Vargas, supra, 91 Cal.App.4th at p. 562; see also People v. Jenkins (2000) 22 Cal.4th 900, 1025 [The United States Supreme Court also has explained that the jury need not agree on the means by which a crime has been committed, stating that it is appropriate that different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict. ], citing Schad v. Arizona (1991) 501 U.S. 624, 631-632.)