P. v. Gochez

Filed 8/29/07 P. v. Gochez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

After a jury trial, appellant was convicted of one of two counts in the charging information, namely, being a felon in possession of a firearm. (Pen. Code,  12021, subd. (a)(1).)^[1] On appeal he contends that the trial court erred in refusing to instruct the jury with CALCRIM No. 3406 regarding mistake of factin this case regarding whether appellant, at the time he possessed the firearm, was under the mistaken belief that it was inoperable. We agree with the trial court that this instruction was not required and hence affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Early in the morning of May 5, 2004, San Francisco police officer Lynch was dispatched to the corner of Third and Newcombe Streets in the Bayview District. When he arrived there, he saw appellant on that corner holding in his hands an object that resembled a firearm. The officer exited his vehicle, drew his firearm, and ordered appellant to drop his gun and put his hands up.

Appellant, however, did not do that; rather, he walked over to a garbage can, put both hands inside it, and then stepped back to where he was hidden from Officer Lynchs view by a pole. He came out shortly thereafter, claiming: I dont have a gun. I wasnt shooting anybody. Im just going home.

A loaded gun, namely a 1906 Savage .380 pistol, was subsequently recovered from the garbage can; one bullet casing was found nearby and two others across the street from appellants residence.

Another officer interviewed appellant at the Bayview police station about 30 to 45 minutes after his arrest; the interview was tape-recorded. Appellant told that officer that he was walking to his apartment nearby when he was confronted by a black person. When the latter reached towards his belt, appellant grabbed his arms and wrist, because he believed the man was going for a weapon. During the subsequent struggle a gun came out and then appellant heard three or four shots fired. The assailant got up, pointed his gun at appellant, but then left the scene without firing it again.

Appellant then went to his nearby apartment, got the Savage pistol, and went after the man. He told the interviewing officer that, although there was ammunition in the gun, it didnt work, but I was going to threaten him. The officer testified that when he looked at the gun appellant had, it appeared to be jammed because of a round of ammunition stuck in the slide of the gun. A firearms identification expert then testified that appellants gun in fact functioned normally. When he tested it, it fired a cartridge, extracted and ejected the casing, and fed a new cartridge to be fired. That technician also did an examination of the spent 9 mm. casings recovered from the scene and determined that they were ejected from the same gun, but not the Savage pistol, because they were of a different caliber.

On September 8, 2005, the San Francisco District Attorneys office filed a two count information against appellant charging him, in count one, with being a felon in possession of a firearm ( 12021, subd. (a)(1)) and, in count two, with discharging that firearm in a grossly negligent manner. ( 246.3.)

Appellant was tried before a jury starting on April 27, 2006. The following day, his counsel filed a motion requesting that the jury be instructed on the mistake of fact defense via CALCRIM No. 3406.

The prosecutions case consisted mainly of the testimony of the two officers and the firearm expert summarized above. The defense consisted of the testimony of one Reginald Barnes, a neighbor of appellant, and appellant himself. The former testified that, at the time of the incident, he saw appellant being stopped by a Black man while on his way home. The man, Barnes continued, tried to rob appellant whereupon shots were going off. Barnes testified that he heard appellant tell the officers at the scene that: I have a gun too.

On his own behalf, appellant testified that he had bought the pistol in question a week prior to the incident, and that at that time and thereafter believed it to be inoperable, because it was an antique; he conceded, however, that he knew it had bullets in it. He testified that he went outside with the gun to protect his family.

On May 1, 2006, before the jury was given the case, appellant filed a second supplemental motion again requesting that the court give CALCRIM No. 3406; the prosecution filed opposition to this motion. The court denied this motion.

On May 2, 2006, the jury found appellant guilty as charged on count one, but hung regarding count two.

On July 13, 2006, the trial court dismissed count two and suspended imposition of sentence on count one, placing appellant on probation for a term of three years. Appellant filed a timely notice of appeal.

III. DISCUSSION

As noted above, appellants sole contention is that the trial court erred in declining to instruct the jury regarding his mistake of fact under CALCRIM No. 3406; the mistake he is relying upon is that, at least per his theory and testimony, he thought the 1906 Savage pistol he retrieved from his apartment was inoperable and hence he could and should not have been convicted under section 12021, subdivision (a)(1). That statute provides: Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country. . . and who owns, purchases, receives or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

Appellants arguments to the contrary notwithstanding, the fact that the firearm a felon possesses is in fact, or may be thought to be, inoperable does not make any legal difference whatsoever according to numerous authorities, including those of our Supreme Court.

The key case on this entire subject is People v. Nelums (1982) 31 Cal.3d 355 (Nelums). There, a unanimous court agreed with authoring Justice Richardson that, for purposes of a companion section in the Dangerous Weapons Control Law ( 12000 et seq.), a violation could be found even if the weapon were inoperable. Justice Richardson wrote: The Dangerous Weapons Control Law ( 12000 et seq.) specifies the penalties or sentence enhancements which are to be imposed for the unlawful possession or use of firearms within several contexts. Section 12021, subdivision (a), proscribes the possession of a concealable firearm by an ex-felon; section 12022, subdivision (a), enhances the penalty for a person who is armed with a firearm during the commission, or attempted commission, of a felony; and section 12022.5 enhances the penalty for one who uses a firearm during a felony or attempted felony. Prior cases have examined the operable firearm issue within the meaning of each of these statutes and although there is some decisional conflict, we discern a general consensus that none of these statutes requires proof that the firearm is operable.^[2] (Nelums at p 358, italics omitted.)

Later in 1982, in another opinion authored by Justice Richardson, the court held that the appellants mistaken belief that the prior crime of which she had been convicted was only a misdemeanor, and not a felony, simply did not work under section 12021, subdivision (a)(1). In People v. Snyder (1982) 32 Cal.3d 590, 592-593, the court held: Does section 12021 also require knowledge of ones legal status as a convicted felon? No case has so held. Penal Code section 26 provides that a person is incapable of committing a crime if he acted under a mistake of fact which disproves criminal intent. In this regard, the cases have distinguished between mistakes of fact and mistakes of law. As we stated in an early case: It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit any one to gainsay . . . . The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result. [Citations.] Accordingly, lack of actual knowledge of the provisions of Penal Code section 12021 is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section. [Citations.] [] In the present case, defendant was presumed to know that it is unlawful for a convicted felon to possess a concealable firearm. (Pen. Code, 12021.) She was also charged with knowledge that the offense of which she was convicted (former Health & Saf. Code, 11531) was, as a matter of law, a felony. That section had prescribed a state prison term of from five years to life, and the express statutory definition of a felony is a crime which is punishable with death or by imprisonment in the state prison. [Citation.] [] Thus, regardless of what she reasonably believed, or what her attorney may have told her, defendant was deemed to know underthe law that she was a convicted felon forbidden to possess concealable firearms. Her asserted mistake regarding her correct legal status was a mistake of law, not fact. It does not constitute a defense to section 12021.

In the 1990s, two cases combined to make it crystal clear that inoperability is no defense to a section 12021, subdivision (a)(1) charge, no matter whether categorized as a mistake of law or mistake of fact. Thus, in People v. Bland (1995) 10 Cal.4th 991, 1004-1005 (Bland), the court cited Nelums in holding that, under the language of section 12022, subdivision (a)(2), an enhancement could be imposed because of the proximity of a semi-automatic rifle to a cocaine supply: Defendant further contends that the evidence supporting the jurys finding was insufficient because the assault rifle was unloaded and no ammunition was found in defendant's house. Although juries faced with deciding whether a defendant had a firearm available for use in the commission of a felony may consider the fact that the firearm was unloaded, the absence of ammunition does not preclude a finding that the defendant was armed with a firearm. This court has held that the additional penalties for armed offenders are applicable even when a firearm is not operable. [Citing Nelums.] As Nelums explains, an inoperable gun still creates a risk of harm because its passive display may stimulate resistance. (Id. at p. 360.) The same is true of an unloaded gun. (See also, to the same effect, People v. Arnold (2006) 145 Cal.App.4th 1408, 1415-1416.)

But the most comprehensive decision on the relevanceor lack thereofof inoperability of a gun for purposes of all of the sections of the Dangerous Weapons Control Law is a decision by our colleagues in Division Four of this court in In re Arturo H. (1996) 42 Cal.App.4th 1694. In that case, the juvenile appellant argued that he was not guilty of violating the Penal Code section prohibiting the possession of a weapon on school grounds because the pellet gun he had was inoperable. Citing no fewer than eight cases, starting of course with Nelums, the court rejected this argument, stating: Many cases have interpreted the laws prohibiting possession and use of firearms to apply even if the gun in question is inoperable. [Citing Nelums and seven other cases, each applying this principle to a different provision of the Dangerous Weapons Control Law.] []  These cases identify what has been called an important common thread of perceived fear in their discussion of the underlying purpose of The Dangerous Weapons Control Law [ 12000 et seq.] [Citation.] As one case observed, . . . the statute seeks to deter both physical harm and conduct which produces fear of harm. The fear may arise either from a gun that really shoots or from one which is designed to shoot and gives the appearance of shooting capability. Persons held at gunpoint have no stomach for inquiry. Danger radiates not only from the weapon, but from the defensive reactions of others. In response to the lawbreakers weapon, operable or not, a victim or law officer may himself resort to a firearm. Further, a demand for affirmative proof of operability would allow the defendant to frustrate the statute by getting rid of the gun or concealing it. . . . [I]t is enough that the prosecution produce evidence of a gun designed to shoot and which gives the appearance of shooting capability. [Citation.] (In re Arturo H., supra, at pp. 1697-1698.)

Appellant argues that our Supreme Courts recent decision in People v. King (2006) 38 Cal.4th 617 (King) is controlling here and effectively supersedes the authority cited above. It plainly does not. There, the defendant had been convicted of illegally possessing a short-barreled rifle in violation of section 12020, subdivision (a)(1). The Supreme Court held that the trial court erredalbeit harmlesslyin not giving an instruction to the effect that the prosecution had to prove that the defendant knew or reasonably should have known that the weapon had been illegally shortened and was thus possessed in violation of that statute. The error was harmless, the court ruled, because the evidence was clear that the defendant had seen it and handled it before the police found it in the defendants house while executing a search warrant.

Nothing in King alters in the slightest the holding of Nelums and the cases cited above following it. Indeed, none of those cases, much less their rationalethat an inoperable gun still creates a risk of harm because its passive display may stimulate resistance (Bland, supra, 10 Cal.4th at p. 1005, quoting Nelums, supra, 31 Cal.3d at p. 360)is even alluded to in King.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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^[1]All further statutory references are to the Penal Code, unless otherwise noted.

^[2]Remarkably, Nelums is mentioned only in passing in appellants opening brief and not at all in his reply brief.