P. v. Galvan

Filed 7/12/07 P. v. Galvan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler, Judge. Affirmed.

Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant Juan Galvan of possessing a billy club. (Pen. Code,[1]  12020, subd. (a)(1).) On appeal, he alleges several errors: there was insufficient evidence to support the charge, the jury was not instructed on all the elements of the crime, defense counsel rendered ineffective assistance, the prosecutions expert unfairly expressed an opinion that defendant was guilty, and an expert witness instruction should not have been given to the jury. We reject all of defendants claims and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Around 12:30 in the morning on December 11, 2005, Sergio Tejeda-Ponce was working as a bar back when he observed a fight move from outside the bars parking lot into the interior of the bar. He saw defendantwho was wearing a shirtand several other people fighting. Defendant left the bar and returned a few minutes later, shirtless, with a machete. Tejeda-Ponce saw defendant drop the machete onto the ground and leave the bar. Tejeda-Ponce called police and gave them a description of the suspect.

Several officers responded, among them Officers Reed and Scutella. Officer Reed interviewed Tejeda-Ponce and recovered a rusty machete.

While en route to the bar in his patrol vehicle, Officer Scutella saw a man matching the description of the machete-wielding suspect. Defendant, shirtless, was walking along the side of a flatbed truck. He walked toward the front of the truck and rounded the front of the trailer. In one hand, defendant was gripping a breaker bar, weighing five pounds and 32 inches in length. Defendant raised the breaker bar, spinning and rotating it while waiving it above his head. Officer Scutella ordered defendant to drop the weapon. Defendant angrily approached him, yelling expletives, still waiving the breaker bar above his head. Officer Scutella drew his firearm and repeatedly ordered defendant to drop the object. When he reached within 25 feet of the officer, defendant dropped the breaker bar and lay prone on the ground. Officer Scutella then arrested defendant. Officer Reed retrieved the breaker bar, which he described as a billy.

DISCUSSION

A. There was sufficient evidence showing defendant possessed the breaker bar as a weapon.

Defendant contends there was insufficient evidence to prove he possessed a billy club because the prosecution failed to establish he used the breaker bar as a weapon.

Section 12020, subdivision (a)(1) criminalizes the possession of a billy club. The Legislature passed this section of the Dangerous Weapons Control Law[2] to include both traditionally dangerous weapons and ordinarily harmless objects used for criminal purposes. (People v. Grubb (1965) 63 Cal.2d 614, 620-621 (Grubb).) These ordinarily harmless objects are illegal when the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicate[] that the possessor would use the object for a dangerous, not harmless, purpose. [Citation.] (Ibid.) For example, a shortened baseball bat can be an illegal billy club (Id. at p. 621) and a padlock fastened onto a bicycle chain can be an unlawful slungshot. (People v. Fannin (2001) 91 Cal.App.4th 1399, 1405).

If the object is not a weapon per se, but a device with an innocent use, the evidence must show the defendant carried it as a weapon, and would use it for a dangerous, not harmless, purpose. (People v. Fannin, supra, 91 Cal.App.4th at p. 1403.) Circumstantial evidence is admissible to show its nefarious use and it may be rebutted by evidence of innocent use. (Id. at p. 1404.) Intent to use a weapon is not an element of the crime of weapon possession. (Ibid.)

The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

We conclude there is substantial evidence that a jury could find defendant possessed a billy beyond a reasonable doubt.

At 12:30 a.m., defendant was fighting with a man and a woman inside a bar. Defendant left the bar and a few minutes later he returned to the bar, shirtless, with a machete in his hand. He dropped the machete onto the ground and left. An employee at the bar called the police to report the incident and gave a description of defendant. Police dispatch logged the call in at 12:36 a.m.. Officer Scutella, hearing the call, responded to the scene.

Seven to 10 minutes after the fight, Officer Scutella, while en route, saw the shirtless defendant approximately 300 to 400 yards away from the bar.

He observed defendant walk alongside a flatbed truck, round the front of the truck trailer, and head back in the direction of the bar. In his hand, he held the bottom of a heavy breaker bar, which he spun, rotated, and waived above his head.

Officer Scutella exited his patrol vehicle and ordered defendant to drop the object. Defendant failed to initially stop as commanded. He stood 35 feet away, angrily yelled and cursed the officer, while still holding onto the breaker bar. He advanced 10 feet towards the officer, stopped 25 feet away from the officer, threw down the breaker bar, and lay prone on the ground.

The circumstances reveal defendant was angry after the bar fight and retrieved the breaker bar with the motive of returning to finish the fight. Defendants reason for getting the breaker bar was to use it as a weapon to strike someone, and not for the innocent purpose of cinching down the straps on the truck to secure it against slipping.

Even if we were to disregard all the evidence prior to Officer Scutellas encounter with defendant, we would still find evidence of reasonable, credible, and solid value that defendant possessed the breaker bar to use as a billy. The officer testified that defendant was spinning and rotating the breaker bar while waiving it above his head. He was angry and advanced towards the officer while cursing at him.

The jurys verdict implies that the jurors rejected the defenses version that defendant was securing down the trucks straps with the breaker bar to prevent the load from moving, and instead found the officers testimony that defendant used the breaker bar as an impact weapon more credible. As an appellate court, our role begins and ends with a determination as to whether there is any substantial evidence to support [the factual findings]; [we have] no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. [Citation.] [Citation.] (People v. Orange County Charitable Servs. (1999) 73 Cal.App.4th 1054, 1071-1072.)

We conclude there was overwhelming evidence that defendant used the breaker bar for a dangerous purpose, as a weapon, and not for the harmless, utilitarian function of cinching down cargo.

B. The trial court included the definition of deadly or dangerous weapon in its jury instructions.

Defendant contends that the trial court did not fulfill its sua sponte duty to instruct the jury on the elements of section 12020, subdivision (a)(1), because the instruction did not define the term dangerous or deadly weapon. In response, the prosecution asserts that the issue is waived on appeal by failing to object below. We disagree. Where an instructionerroneously defines the elements of an offense, the error is not waived by trial counsels failure to object, because the trial court has a sua sponte duty to instruct the jury properly on that subject. (See People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Frazer (2003) 106 Cal.App.4th 1105, 1116, fn. 5.)

The trial court gave a modified version of CALCRIM No. 2500, which reads in part:

The defendant is charged with unlawfully possessing a weapon, specifically a billy. [] To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant possessed a billy[;]

2. The defendant knew that he possessed the billy[;]

AND [] . . . []

3. The defendant possessed the object as a weapon. When deciding if the defendant possessed the object as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was possessed and where the defendant was going, and whether the object was changed from its standard form, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.

A billy is a club, stick, or similar object suitable for use as a striking weapon. (Italics in original; original internal brackets & parenthesis omitted.)

Prior to the adoption of CALCRIM No. 2500, CALJIC No. 12.42 defined the term deadly weapon. (CALJIC No. 12.42 (2006 ed.) p. 812.) The use note stated it was essential to give CALJIC No. 12.42 when the questioned object is an innocent-appearing utensil capable of use as a dangerous object. (Ibid.; People v. Gonzales (1995) 32 Cal.App.4th 229, 235.)

CALJIC No. 12.42, in part, stated: A deadly [or dangerous] weapon is any weapon, instrument or object that is capable of being used to inflict death or great bodily injury[.] [, and it can be inferred from the evidence, including the attendant circumstances, the time, place, destination of the possessor, [the alteration, if any, of the object from its standard form,] and any other relevant facts, that the possessor intended on that [or those] occasion[s] to use it as a weapon should the circumstances require.] (Italics added.)

That instruction stemmed from Grubb, supra, which construed section 12020. (People v. Savedra (1993) 15 Cal.App.4th 738, 743.) As discussed previously, Grubb found that the state Legislature outlawed possession of a class of innocent objects when the circumstances of possession demonstrate an immediate atmosphere of danger. (Grubb, supra, 63 Cal.2d at p. 621.) Grubb said possession of utilitarian objects were prohibited when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose.[3] (Id at pp. 620-621, fn. omitted.) This language was incorporated into CALJIC No. 12.42, which defined dangerous and deadly weapon.

When we compare CALJIC No. 12.42 with CALCRIM No. 2500, we observe the two instructions similarly define what a deadly and dangerous weapon is by using different words. CALJIC No. 12.42 tracked the language of Grubb by stating that an object is dangerous when the attendant circumstances, time, place, and possessors destination show the possessor intended to use it as a weapon. CALCRIM No. 2500 says exactly the same thing in plain English: the defendant [possessed] the object as a weapon. When deciding if the defendant [possessed] the object as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was [possessed] [and] [where the defendant was going] . . . .

Because CALCRIM No. 2500 includes the definition of the term deadly or dangerous weapon, we find the trial court met its sua sponte duty to instruct the jury on all of the crimes elements.

C. The expert witnesses did not render an opinion as to the defendants guilt.

Defendant argues that the jurys role was usurped when the officers testified a breaker bar could be used as a billy club . . . [] . . . [] . . . by grabbing one end of it and swinging . . . [] . . . [] [l]ike a baseball bat, and [i]t was used as a clubbing device . . . what we refer to in the field as a billy. He claims their testimony was tantamount to expressing an expert opinion on the crimes elementsthat the breaker bar met the statutory definition of a billy and defendant used the breaker bar for a dangerous and not a harmless purpose. Finally, he claims rendering an expert opinion on the ultimate issue of his guilt of the charged crime (possessing a billy) denied him the right to a fair trial.

Expert testimony is admissible to describe whether a particular object meets the definition of an illegal weapon. (People v. Deane (1968) 259 Cal.App.2d 82, 89.) An expert may also give evidence tending to show that, at the time and place of the alleged illegal possession, the possessor contemplated the unlawful and not the lawful use. (Ibid.)

The record does not support defendants assertion that the officers told the jury that the defendant was guilty. Instead, their testimony reflected their opinion about the nature of the object, and their belief that defendant used it as a weapon. Based on the circumstantial evidence, Officer Reed could properly testify that the breaker bar fit the definition of a billy club. It was also reasonable for Officer Scutella to testify regarding the circumstances surrounding defendants actions: swinging a heavy breaker bar above ones head, while angrily advancing towards the officer, is evidence that defendant possessed the breaker bar as a weapon.

As the officers testimonies were proper, no objection was necessary. Because we find no error, we reject defendants claim that his counsel rendered ineffective assistance.

D. The trial court correctly gave CALCRIM No. 332.

Defendant maintains that Officer Scutella never qualified as an expert witness, thus the trial court erred in giving CALCRIM No. 332, the expert witness instruction. He submits the trial courts furnishing the instruction created an aura of false and undeserved imprimatur of reliability around Officer Scutella.

Officer Scutella testified he is an advanced tactics and weapons instructor who trains other officers throughout the state how to use available objects as striking weapons. He has received 120 hours of specialized training, has achieved the rank of corporal, and is responsible for training and field supervision.

Prior to becoming an officer, Officer Scutella worked for five years on a trucking lot where he loaded and unloaded cargo shipments. He described his experience in loading freight: forklifts would lift a pallet onto a truck bed, straps would be pulled across the loaded pallets, and the straps ends would be secured to the opposite side of the truck bed. Each strap is wrapped through a metal wheel that has teeth which face inwards towards the trailer. Each wheel has holes in it that a breaker bar can slip into. Once a breaker bar is slipped into a wheels holes, a person can grab the breaker bar and use it as leverage to pull back on the wheel, tightening the strap until it is taut. Repeating this tightening action for each wheel cinches down the load to prevent its shifting during travel. To use a breaker bar as a lever, a person will use one hand to grab the bottom of the breaker bar and the other hand on the top of the bar.

A person is qualified to testify as an expert witness if he has special knowledge, skill, experience, training, or education on a subject outside the common experience that would assist the trier of fact to understand the evidence. (Evid. Code, 720 & 801, subd. (a).) A trial court has a great deal of discretion in deciding if a witness qualifies as an expert. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) Absent manifest abuse, the courts determination will not be disturbed on appeal. (Ibid.)

The trial court did not abuse its discretion in admitting the officers testimony. Although an expert is not required to have personal experience in his area of specialization (Jeffersons Evidence Benchbook, 3rd edition, Vol. 1, 29.28, at p. 616), Officer Scutella had specialized knowledge both as an impact weapons trainer and as a truck loader.

The trial court gave CALCRIM No. 332, which states in part:

[Witnesses were] allowed to testify as [] experts and to give [] opinions. You must consider the opinions, but you are not required to accept [them] as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the experts knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.

This instruction does not give Officer Scutella a false and undeserved imprimatur of reliability. It tells the jurors that they are the ultimate arbiters of the experts qualifications, credibility, and accuracy. Jurors are not required to accept any witnesss testimony. They must consider the opinion, but may reject it if they do not find it to be true or correct. Clearly, this instruction did not tell the jurors that they must find Officer Scutella was reliable.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ KING

J.

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[1] All further statutory references will be to the Penal Code unless otherwise indicated.

[2] Section 12000 et seq.

[3] See also People v. Aguilar (1997) 16 Cal.4th 1023, 1029, citing In re Jose R. (1982) 137 Cal.App.3d 269, 276, fn. 3 (listing objects such as a pillow, an automobile, a large rock, a razor blade and a fingernail file, which were not deadly per se but were found to be deadly or dangerous weapons under the circumstances).