Filed 6/7/18 P. v. Hamilton CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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In case No. 13F6723, a jury found defendant Brian Keith Hamilton guilty in December 2015 of the unlawful possession of firearms and ammunition. In case No. 15F3598, another jury found defendant guilty in February 2016 of second degree robbery, criminal threats, false imprisonment by violence, and misdemeanor battery; it also sustained allegations that defendant committed these offenses while on bail pending trial in case No. 13F6723. The trial court initially sentenced defendant to state prison in the two cases. After filing his notice of appeal in May 2016, defendant filed a petition to recall the sentence. The trial court granted the petition, suspended imposition of sentence, and placed him on probation. Briefing was completed in October 2017.

Defendant contends the evidence is insufficient to support his convictions for unlawful possession of firearms and ammunition, robbery, and making criminal threats. He asserts the prosecutor committed misconduct during closing arguments in case No. 13F6723 when he commented on the failure of the defense to call an available witness and offered a flawed example of unlawful possession. Finally, defendant argues the trial court should have granted his request to instruct on “citizen’s arrest” in connection with the charge of false imprisonment, or to include the optional phrase “unlawfully” in the pattern instruction on false imprisonment (which is used when evidence is present that a defendant’s conduct was lawful). We shall reverse the convictions for robbery and false imprisonment, and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Case No. 13F6723

In 2013, a state agent was cross-referencing firearm records and records of people prohibited from possessing firearms. He concluded defendant, his brother, and his father could be illegally in possession of firearms, and obtained warrants to search property and vehicles belonging to them. (In 2010, defendant had been convicted of making misdemeanor criminal threats, and was prohibited from owning firearms for 10 years.)

Agents followed the brothers as they left property on Plateau Pines Road in Shingletown, and detained them at their destination. The truck the brothers were driving was registered to defendant. The agents found a box of ammunition behind the front seat, clearly visible through the driver’s window, and more ammunition in the glove box. There was correspondence addressed to both brothers. Defendant’s brother, aware that defendant was prohibited from owning any firearms, said the ammunition belonged to him; he had left the items in the truck, which he had used when he went shooting the previous day. Defendant’s brother also told the agents that their father had taken possession of all firearms on the Plateau Pines property.

Their father owned the Plateau Pines property, where defendant lived with him. The brother used a trailer there; defendant shared a bedroom with his father, for whom he was caretaker. (At least at the time of the second trial, the brother also had a residence nearby.)

The agents searched the property later that day. There was a gun safe in the bedroom that contained multiple firearms, along with defendant’s prescription bottles. Shotguns were leaning against the safe. A hand gun was in a nightstand drawer with a receipt in defendant’s name. There were multiple firearms in the living room. A search of trailers on the property yielded additional firearms. All together, the agents found 3,200 rounds of ammunition on the property.

Case No. 15F3598

In June 2015, defendant was still awaiting trial on the charges arising out of the 2013 search of the Plateau Pines property. His father left the gate open and defendant’s six-month-old puppy ran out into the street. Defendant went to retrieve her. A van driving slowly down the road struck the puppy, which rolled underneath the van. The van did not stop. The puppy was able to get up and run back to the gate. Defendant shut her inside the gate and got into a vehicle in pursuit of the van. The trial record does not indicate what injuries the puppy incurred,[1] but she presumably survived because defendant testified that she “sleeps with me all the time.”

The driver of the van was taking her young granddaughter to Redding to shop, driving down Plateau Pines Road toward Highway 44. She felt a big bump. Her granddaughter told her to stop because they had hit something, but the driver kept driving; the driver testified she may have paused for about 30 seconds. She looked in the rear view mirror and could see a dog running off. About a tenth of a mile further down the road, another vehicle cut her off. Defendant got out of the vehicle and approached the driver’s window, which she had rolled down. Defendant was angry, yelling curses at her about hitting his dog and saying something about snapping her neck. She could not recall if he said he intended to do so or should do so. She was certain, however, from the circumstances that he was threatening to do so. He also made a statement about breaking her arm, accompanied by a gesture that mimed the snapping of a stick. He reached in through the window to grab her forearm to prevent her from rolling up the window, leaving bruises. She threatened to call 911; he grabbed the phone out of her hand. He reached for the keys in the ignition; they struggled briefly before he overpowered her. Her finger also got a cut at some point in the fracas. Defendant then drove off after saying he would see her later about the items. She never saw him again.

Two people approached the driver from a truck parked behind her. They told her defendant’s name. The granddaughter was crying. The driver was scared that defendant would return. After about 10 minutes, another man drove up in the same vehicle and returned her keys and phone, saying that they should call this incident a misunderstanding. The other people told her this was defendant’s brother. She drove to Redding; unable to locate anyone at the sheriff’s substation, she drove to Wal-Mart and phoned the police. She still felt distraught about the incident, which had taken place an hour earlier. She could not recall if her granddaughter was still upset.

A deputy spoke with defendant afterward at his brother’s home. Defendant explained that the driver had hit his puppy and continued without stopping, for which reason he chased after her. Although the deputy anticipated that defendant would say he took the phone to prevent the driver from calling 911, defendant never intimated that purpose; he did not have any explanation other than it seemed the “smart thing” to do, and said that he had given the keys and cell phone to his brother. He asserted that if the driver could not see that she had hit his puppy, she should not be driving. Defendant was still upset about the matter during this interview. The brother mentioned that he was familiar with the driver and her family from church, and therefore thought he should return the items.

Defendant testified that he was not angry when he confronted the driver. When she said she had not seen any dog, he told her if that was the case she should not be driving. The driver offered him her cell phone, which defendant told her he did not know how to use. The granddaughter told him she saw the puppy get hit and roll under the car. He took the keys to detain the driver, although he did not explain this to her or the deputy. He never threatened to harm her. He went to his brother’s house to ask him to check on the puppy’s injuries, because defendant was afraid she was dying. When he gave the items to his brother, he told him where the woman was parked. He did ask his brother to return them, even if he did not tell the deputy that. He did not take them for his own use, or in retribution. Defendant’s brother did not mention in his own testimony that defendant had asked him to return the items when handing them to him.

DISCUSSION

1.0 There Is Sufficient Evidence of Unlawful Possession

Defendant concedes that he lived on property where he was aware that numerous firearms and ammunition were readily available without any evidence that his access to them was limited in any way, but contends this is insufficient evidence to establish that he had joint dominion and control over these items along with his father.

Possession is properly imputed where contraband is located in a place immediately accessible and subject to the dominion and control of a defendant, or of a defendant and others jointly. (People v. Williams (1971) 5 Cal.3d 211, 215.) The inference of dominion and control over the contraband is “easily made” when it is located in an area over which the defendant has general dominion and control, such as a residence or a vehicle. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) However, mere presence at a location over which a defendant does not have general dominion and control is insufficient to establish possession. (Ibid. [evidence of presence in garage of brother’s residence insufficient to establish possession of contraband]; People v. Land (1994) 30 Cal.App.4th 220, 224, 228 [mere presence as passenger in stolen car of itself insufficient to establish dominion and control, but potential dominion and control established on facts of case].)

Defendant relies on a case in the latter category: People v. Sifuentes (2011) 195 Cal.App.4th 1410 involved a defendant lying on one motel bed when police entered with another man kneeling on the floor on the far side of the second bed, who delayed in raising both hands at the demand of the officers. The police recovered a gun under the mattress where the other man had been kneeling. (Id. at pp. 1413-1414.) Putting aside whether the evidence showed that the defendant even had knowledge of the presence of the gun, and assuming this gun was one that members of the defendant’s gang generally shared, the court pointed out limits on joint use to which an expert testified, which included a gun in a compatriot’s possession “where no offensive or defensive actions are [being] undertaken.” (Id. at pp. 1417-1418.) The difference from the present case is apparent: the absence of any evidence that the father (who is profoundly deaf and unable to look after himself) or defendant’s brother acted to restrict defendant’s ready access to the contraband (other than perhaps by means of the safe, but a multitude of contraband was outside the safe as well). We are left otherwise only with self-imposed limits which are hardly in keeping with the protection that the prohibition on possession is supposed to afford. We therefore reject this claim.

2.0 Any Prosecutorial Misconduct Was Cured

The prosecutor argued, “[Defendant’s] lawyer also said that I should have called [defendant’s father] to clear all these different things up such as that. If all the doors to every trailer and every house residence was locked, perhaps [Mr.] Hamilton could have testified to that. If all the guns and ammunition were kept away from [defendant], perhaps [Mr.] Hamilton could have testified to that. If [defendant] had no access to any of the guns, maybe [Mr.] Hamilton could have testified to that. If [Mr.] Hamilton did in fact pull all those guns out, he could have testified to that. If he changed the combination to the safe, again [defendant’s] lawyer said, maybe the safe code was changed. No evidence. But [Mr.] Hamilton has been sitting in this courtroom every day of this trial—and I do not mean to say that they have a burden; they do not. That is, [defendant’s]—but a failure to call a logical witness—” at which point the trial court sustained a defense objection. The prosecutor started again: “There is somebody who could have told us that [defendant] didn’t have access to those guns, that he locked them up—” whereupon the trial court sustained its own objection to the prosecutor’s argument.

In another line of argument, the prosecutor was attempting to distinguish the concepts of ownership and possession. He posited having access to a coffee machine that dispensed methamphetamine. “Now what? When you go get your coffee, do you not exert control over that meth? You do, don’t you? And if you go and walk away with that gram of meth and they can connect you to whatever’s left in that coffee machine, aren’t you on the hub for that? Didn’t you just exert possession, control over that coffee machine?”

At a conference out of the presence of the jury, the court noted defense counsel wanted the jury admonished about the prosecutor’s remarks regarding defendant’s failure to call his father as a witness, and would seek a mistrial on that basis as well. The court agreed to admonish. It then stated, “I also wasn’t following your methamphetamine scenario,” expressing concern whether this communicated the criteria for proof of possession properly. It decided also to admonish the jury to disregard the example.

When the jury returned to the courtroom, the court instructed them, “ want to just remind you . . . that the burden of proof in a criminal case is on the Prosecution. . . . The defendants do not have to testify . . . . They don’t have to get up and do anything. The [defense] attorneys don’t have to ask a single question. They don’t have to call a witness . . . .” It then explained the flaws in the prosecutor’s methamphetamine example with respect to proof of possession (emphasizing also that methamphetamine was not involved in the case in any respect). Defendant does not address either admonition in his briefing.

We do not need to belabor whether the challenged argument was misconduct. We presume juries heed admonitions. This is an essential premise of the system of trial by jury—otherwise there would not be any point in giving instructions. ([i]Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9 [85 L.Ed.2d 344]; Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6 [74 L.Ed.2d 646]; People v. Ervine (2009) 47 Cal.4th 745, 776.) The trial court specifically admonished the jury on these two points, and we presume the jury heeded them. Defendant does not identify any shortcoming in the admonishments, and we do not discern any. We therefore reject this argument.

3.0 The Court Erred in Failing to Instruct on Citizen’s Arrest as a Defense to False Imprisonment

At the outset of trial, defense counsel filed a request for a special instruction on the right of an individual to make a citizen’s arrest for the commission of a misdemeanor (specifically, hit and run) as a defense. The trial court denied the request for a special instruction for want of sufficient evidence without elaborating on its reasoning; it also denied a request to employ the optional language in the pattern instruction that false imprisonment must be “unlawful.” Defendant contends these ruling were erroneous.

An individual may lawfully make an arrest for a witnessed public offense. (Pen. Code, §§ 834, 835.) This is a defense to false imprisonment. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 83, p. 699.) Striking a dog with a car and failing to stop is a violation of Vehicle Code section 20002. (See Devincenzi v. Faulkner (1959) 174 Cal.App.2d 250, 254 [predecessor statute, see former Veh. Code, § 481 (Stats. 1957, ch. 477, § 1, p. 1510)].) The People do not provide any authority for their claim that defendant’s failure first to verify that the puppy was indeed injured precludes the driver’s liability for hit and run.

The People contend this was not a valid citizen’s arrest, because a person who makes a citizen’s arrest “must inform the [arrestee] of the intention to arrest . . . , [its] cause . . . , and the authority to make it . . . .” (Pen. Code, § 841.) They ignore the body of substantial precedent (annotated under this statute) holding that the legality of a citizen’s arrest is premised on the substance of a defendant’s actions and not the use of any particular “magic words.” (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1217; Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1031; Gomez v. Garcia (1980) 112 Cal.App.3d 392, 397-398; People v. Harris (1967) 256 Cal.App.2d 455, 459.) Moreover, the statute does not apply to those who pursue a person immediately after the commission of the public offense. (Johanson, supra, at p. 1218; Harris, supra, at p. 459.)

It may be that a jury might not credit defendant’s claim that he was detaining the driver until his brother determined the fate of the puppy and defendant could decide the proper way to proceed, a process that was then aborted either on defendant’s request or his brother’s initiative. But there was not a want of evidence in support of a defense of lawful citizen’s arrest. It was therefore error either to fail to give the special instruction or include the optional language in the pattern instruction. We shall therefore reverse the conviction for false imprisonment. If the People so elect, they may retry defendant on this count.

4.0 The Evidence Is Insufficient to Support the Robbery Conviction

Defendant’s argument on this point focuses on the element of robbery that requires proof of an intent to deprive an owner permanently of property. In order for a temporary taking to be equated with an intent to deprive permanently, the duration of the taking must be an unreasonable amount of time that deprives the owner of a major portion of the value or enjoyment of the property. (People v. Bacon (2010) 50 Cal.4th 1082, 1117.) Among the examples that the Supreme Court has posited are cases that involve property that is dated, perishable, or seasonal (such as retaining cut flowers for a week, or a lawn mower for the duration of the growing season). (People v. Avery (2002) 27 Cal.4th 49, 55-56.) The trial court believed there was sufficient evidence for the jury to consider the issue.

We agree with defendant that the evidence in the present case did not establish a temporary taking of this sort. The keys themselves do not have any inherent value, nor was the driver substantially deprived of the overall value of the van during the 10-minute detention. (Indeed, at oral argument the People did not seek to uphold this conviction on the basis of the keys or the van.) Regarding the cell phone, the brief deprivation of its use also does not eviscerate its overall value to its owner. It is true that in People v. Aguilera (2016) 244 Cal.App.4th 489, 501-502, one spouse taking a community-owned cell phone temporarily during an episode of domestic violence was found to be a robbery because this deprived the co-owner of its substantial value as a means for summoning aid. The present case, however, is factually distinct. The evidence does not show that defendant wanted to prevent the summoning of authorities; instead, he would have welcomed intervention to help detain the driver but did not think it would be forthcoming, and was instead evaluating what to do about her commission of hit and run while he was under the stress of the possible death of the puppy. Moreover, when he seized the phone, he left the scene of the dispute while others were available to offer assistance to the driver, rather than using the seizure of the phone to isolate the driver. The People otherwise do not provide any authority that a temporary taking constitutes a robbery if it simply prevents a particular use of the property at a particular moment, as opposed to a major deprivation of the overall value of the property.[2] We thus will reverse the robbery count and direct the trial court to dismiss it on remand.

5.0 There Is Sufficient Evidence of Criminal Threat

Defendant contends the evidence is insufficient to prove that he intended to convey an unequivocal and immediate threat of violence, or that the driver of the van reasonably suffered sustained fear, necessary elements of criminal threat. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605.) The circumstances as a whole must be taken into account and not just the words themselves in deciding whether the words conveyed a gravity of purpose and imminent execution to the driver. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342; People v. Stanfield (1995) 32 Cal.App.4th 1152, 1158.)

Defendant essentially argues that whatever his conduct, he left the scene almost immediately and never returned, and his brother defused any lingering fear by returning to the scene with the items within 10 minutes and telling the driver that there had been a misunderstanding. In defendant’s view, this is inconsistent with an intent to convey a threat, or actually to convey a threat because the driver was not sure if defendant said he would inflict injury on her or ought to inflict injury on her. It also is inconsistent with the driver’s subjective sustained fear being reasonable.

It is immaterial whether the driver could recall the exact wording of the threat. Defendant’s conduct manifested a gravity of purpose and intent to execute his talk of breaking her neck or arm, as he raved at the driver at close range, made a frightening gesture, violently grabbed at her arm, and seized her belongings. The driver therefore rationally perceived a threat. The driver’s fear for 10 minutes until she was free to go was both reasonable and sufficiently sustained, as she did not have any way of knowing what might be in store until defendant’s brother finally returned. We therefore reject the claim that the evidence is insufficient to support this conviction.

DISPOSITION

In case No. 13F6723, the convictions are affirmed. In case No. 15F3598, the conviction for robbery is reversed with direction to dismiss the count; the conviction for false imprisonment is reversed and remanded for retrial if the People so elect within 30 days of the issuance of our remittitur. As the trial court has suspended imposition of sentence on the convictions, the judgment is otherwise affirmed.

BUTZ , Acting P. J.

We concur:

HOCH , J.

RENNER , J.