Filed 9/6/18 P. v. Franklin CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Christopher M. Franklin guilty of first degree murder of Anna (count one), the attempted murder of Dennis (count three), an assault on Douglas by means of force likely to produce great bodily injury (count five), and three counts of carrying a concealed firearm on his person during the commission of each of these three offenses (counts two, four, and six—Pen. Code, § 25400, subd. (a)(2).)[1] The jury also found true that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death in the commission of counts one and three. (§ 12022.53, subd. (d).)

The trial court sentenced defendant to a total term of ten years, eight months, plus 75 years to life years in prison: 25 years to life on count one, plus a consecutive term of 25 years to life for the related firearm enhancement; a consecutive upper term of nine years on count three, plus a consecutive term of 25 years to life for the firearm enhancement; a consecutive term of one year (one-third the middle term) on count five; and a consecutive term of eight months (one-third the middle term) on count six. The court sentenced defendant to the upper term of three years on counts two and four but stayed those sentences pursuant to section 654.

On appeal, defendant contends: (1) there is insufficient evidence to support his convictions for carrying a concealed firearm on his person as to counts two and four, (2) the trial court erred by allowing him to be impeached with his misdemeanor conviction for carrying a concealed firearm within a vehicle (§ 25400, subd. (a)(1)), (3) the court erred in failing to instruct on circumstantial evidence with CALCRIM No. 224, and (4) remand is necessary to allow the trial court, in light of recent statutory changes, to consider striking the firearm enhancements imposed under section 12022.53, subdivision (d). We conclude there is insufficient evidence to support defendant’s conviction as to count two only. The People concede the instructional error and we conclude reversal is required as to counts one, three and four. In light of our reversal, we need not reach defendant’s contentions regarding his sentence enhancements because they relate solely to counts we reverse. We otherwise affirm the judgment.

I. BACKGROUND

A. Attempted Murder of Dennis

On July 10, 2015, Dennis, a homeless person, was sleeping inside a tunnel under railroad tracks in Sacramento County when he awoke to someone standing at the opening. The person was about six feet away, but the area was not well lit. Dennis could see a silhouette, but could not discern if it belonged to a man or a woman. The person was about six feet tall with an athletic build. Dennis rolled over and laid there for a few seconds. He asked, “what do you want,” and then a train went by. The person started shooting. Dennis heard five or six shots, and five bullet fragments were later removed from his body. The deputy sheriff who responded to the dispatch location at Elsie Avenue and Cottonwood Lane was unable to find the scene of the shooting that evening.

A few days later, a different deputy sheriff was supervising a work group in the area. They found shell casings in the tunnel.

B. Murder of Anna

In October 2015, Anna was homeless, living next to railroad tracks. Her brother, Lance, lived in a campsite nearby with his girlfriend and his other sister, Chris. Anna liked to stay apart from her siblings.

According to Lance, Anna brought them dinner and drinks before leaving their campsite at around 9:00 p.m. on October 11. It was dark. Approximately half an hour later, Lance heard an argument between a man and a woman that seemed to come from a nearby residence, then a shot, then someone say, “oh, my God,” then two more shots, and then silence. Similarly, Chris testified that she heard somebody scream, “what are you doing,” then gunfire, then someone said, “oh, my God,” and then two more shots. Neither Lance nor Chris recognized the voice of the person who screamed as Anna’s.

The next morning, Chris went to Anna’s camp and found her on the ground, dead.

A patrol deputy was dispatched to the railroad tracks just north of Calvine Road in Sacramento County. He drove between a quarter of a mile and a mile north on the service road to the location of Anna’s body. Two expended shell casings were found on a dirt road east of the body.

An autopsy determined that Anna died as a result of multiple gunshot wounds. She had also sustained fractured ribs caused by blunt force trauma impact around the time of her death.

C. Assault on Douglas

Douglas was a land surveyor for Sacramento County. At about 10:30 a.m. on the day after Anna was found dead, Douglas was working in a remote area near the intersection of Bradshaw and Gerber Roads, about a quarter of a mile away from some railroad tracks. He had a shovel and a metal detector, and was searching for a property corner. His coworker was a quarter of a mile away. Douglas was dressed in a t-shirt, jeans, and a yellow or orange vest. Defendant was walking westbound on Gerber Road, and stopped to ask Douglas for water. Douglas responded that he did not have any, but a truck would be back in a few minutes and defendant was welcome to have all the ice water he wanted. Douglas went back to work and entered a fenced yard.

Jason and his partner worked for a communications company. They were working at the “sub box” inside the fenced-in area. As Douglas was about to say hello to Jason and his partner, defendant grabbed Douglas from behind in a choke hold. Douglas began to lose consciousness. Jason turned and saw Douglas being strangled and foaming at the mouth. Jason yelled at defendant and Douglas to leave.

After a few seconds, defendant let go and apologized. He said he thought Douglas was someone else, and then walked away. When Douglas asked him why, defendant muttered words to the effect of “you guys always coming on people’s property.” Jason called 911, and both Douglas and Jason followed defendant in their vehicles until law enforcement arrived.

When they arrived, sheriff’s deputies searched defendant and found a black, semiautomatic .40 caliber handgun in his waistband. The gun had one round in its chamber and a magazine containing ammunition. One of the deputies testified that Douglas “kinda looked almost like someone who might have been homeless; kind of had weathered skin, kind of a dark tan, like he had been out in the sun a lot, kind of straggly hair.”

Douglas testified he did not see a firearm during his encounter with defendant.

D. Ballistics Evidence

At the time of the charged offenses, defendant lived with his mother and sister. His sister testified that, in August 2015, she saw a black handle that looked like a firearm next to her brother in a blanket. After the deputies found the .40 caliber handgun on defendant, a search of the area of the garage where defendant’s sister said he kept his things yielded an empty handgun case. The case had the same serial number as the gun found on defendant. The firearm was purchased in December 2014 by Aaron in Olympia, Washington. Law enforcement interviewed Aaron, but the interview did not establish that Aaron sold defendant the gun or any other connection between the two men.

A criminalist for the Sacramento County District Attorney’s Office testified as an expert on firearm toolmark identification. He had test fired the gun found on defendant, compared the expended shell casings from the test firing with the eight empty shell casings recovered as evidence in this case, and opined that the same firearm had fired all of those cartridge cases. He also opined that a bullet recovered during the autopsy of Anna’s body was fired from the same gun.

E. Defense

Defendant testified that he did not shoot Dennis and was not in possession of a firearm on July 10, 2015.[2] He lived relatively close to the area where Dennis was shot. He used to skateboard there.

Defendant also denied shooting Anna or being in possession of a firearm on October 11, 2015. He did have a vague idea where the crime scene was in relationship to his home. He guessed it was a mile or a mile and a half away. He had previously gone for a run on the service road near where Anna was shot. Defendant might have gone for a run on October 11, but he did not go down the railroad tracks.

In 2012, appellant lived in Olympia and Fort Lewis, Washington while in the military. He was discharged from the military later that year and was back in Sacramento in 2014.

Sometime between 10 p.m. on October 12, 2015 and 3 a.m. the next morning, defendant heard his side gate rattling and someone outside digging through his garbage cans. He saw a man with a bike that had a trailer on it. The man appeared to be homeless and looked “strung out pretty bad.” There were problems with rummaging and robberies in the area, and defendant thought the man was “casing” his house. Defendant began going through the man’s things. Defendant found a case that looked like the one that held his sister’s rock polishing tool. Instead, there was a gun inside. When defendant asked the man where he got the gun, the man said he found it. Defendant asked if the man had called the police, and the man said he did not have a phone. Defendant took the gun and case inside to get his cell phone. When he came back outside, the man was gone. Defendant tried to call the police, but his phone was not working. Defendant hid the box in the garage to prevent his sister from getting mad at him, and went back to sleep. When he awoke, there were more noises at the side gate, and he found a person wearing a reflective vest who looked like Douglas. The man ran off. At around 10:30 a.m., defendant went for a walk to look for him. Defendant took the gun with him because he did not want to leave it at the house. Defendant said he grabbed Douglas, but did not choke him. “I wasn’t thinking right. There’s a bunch of weird stuff going on, had been going on. I was stressed out, I was tired, it was hot, and I just made a bad decision, so I just let him go.”

Defendant testified that he did not know Aaron, the original purchaser of the gun. Defendant denied possessing any gun in August 2015. The gun his sister may have seen may have been a BB gun.

Defendant testified that he did not mind homeless people, but stated he did not like “people coming and breaking into my house or breaking into my neighbor’s houses or screaming at 2:00 o’clock in the morning at the top of their lungs threatening to kill imaginary people. It gets pretty annoying, it’s scary, and it’s annoying.”

II. DISCUSSION

A. Substantial Evidence

Defendant asserts there was insufficient evidence to support his conviction in counts two and four for carrying a concealed firearm on his person. An individual commits this offense when he or she “[c]arries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person.” (§ 25400, subd. (a)(2).) Specifically, defendant contends there was no evidence to establish the concealment element of the offense.

“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ ” (People v. Nelson (2011) 51 Cal.4th 198, 210.) Here, the jury could have reasonably deduced from the testimony of Dennis regarding what he saw before he was shot, and the fact that the handgun was capable of concealment in defendant’s waistband because it was ultimately found in that state, that defendant concealed his handgun before attempting to murder Dennis. Conversely, there were no eye witnesses to the murder of Anna. The People assert defendant “traveled through public areas, including where homeless people lived, to get to each crime scene. Given the nature of the crimes and his intent to use the weapon, [defendant] would not have risked being seen carrying a loaded weapon to or from each crime scene.” As to Anna’s murder, this is no more than a guess. The evidence suggests Anna and her shooter argued, but there was no evidence regarding how defendant encountered her or to suggest that he risked being seen on his way there. It was nighttime, and apparently no one saw him. “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) Because the evidence raised no more than a suspicion of defendant’s guilt as to count two, we will reverse this count and direct the trial court to dismiss it on remand.

B. Failure to Instruct on the Sufficiency of Circumstantial Evidence

Defendant contends, and the People concede, that the trial court erred in failing to instruct the jury with CALCRIM No. 224[3] on how to consider circumstantial evidence introduced to prove an issue other than intent or mental state. We agree that the court erred.

An instruction on the principles contained in CALCRIM No. 224 “ ‘must be given sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt. [Citations.]’ [Citation.] ‘The instruction should not be given “when the problem of inferring guilt from a pattern of incriminating circumstances is not present.” ’ ” (People v. Rogers (2006) 39 Cal.4th 826, 885.) Here, the instruction was necessary because the evidence connecting defendant to the commission of counts one through four was entirely circumstantial.

In light of this error, we must determine whether there is a reasonable probability that a properly instructed jury would have returned a verdict more favorable to defendant. (People v. Rogers, supra, 39 Cal.4th at p. 886; People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Sandoval (2015) 62 Cal.4th 394, 421-422 [trial court erroneously failed to give instruction on finding special circumstances based on circumstantial evidence].) “ ‘ “ ‘ “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” ’ ” ’ ” (People v. Sandoval, supra, at p. 422.)

The People argue it is not reasonably probable defendant would have received a more favorable result if the jury was properly instructed “because the evidence supporting the jury’s determination that [defendant] shot both Anna . . . and Dennis . . . , while circumstantial, was strong.” The People also contend defendant’s defense was weak. As to counts one through four,[4] the People assert defendant’s testimony regarding how he came into possession of the gun after the first two crimes were committed was not believable. But that was a question for the jury to decide. Moreover, the People had the burden of proof at trial. Whether or not the circumstantial evidence was sufficient to meet the burden of proof was the critical question for the jury with respect to counts one through four. For example, while defendant was in possession of the gun shortly after Anna’s murder, the jury had to decide whether he possessed it as early as July 2015. Defendant’s sister testified that she saw him with what appeared to be the handle of a gun in August 2015. Aaron, the registered owner of the gun used in the charged crimes, did not admit to selling it to defendant, defendant testified that he did not know Aaron, and defendant apparently left the state of Washington two years before the gun was purchased. Additionally, the shooting of the first two victims at night was not particularly similar to the strangling of the third victim during the day. Failure to instruct the jury on the use of circumstantial evidence deprived them of arguably the most important instruction for assessing the majority of the People’s case—and the entire case on the more serious counts. It appears that, during deliberations, the jury focused on the circumstantial evidence relevant to proving how defendant came into possession of the gun. The jury asked for testimony regarding the interview with the original owner of the gun, including a date and location. Later, they asked to see the gun and unspent ammunition, they asked whether the gun and case were cleaned after they were collected, and they asked for a readback of defendant’s testimony. There is more than a reasonable chance that a properly instructed jury would have returned a verdict more favorable to the defendant. We shall therefore reverse defendant’s convictions as to counts one, three and four. If the People so elect, they may retry defendant on these counts.

C. Impeachment

We turn now to defendant’s contention that the trial court erred by allowing the prosecution to impeach him with a 2013 misdemeanor conviction for carrying a concealed firearm within a vehicle under section 25400, subdivision (a)(1).[5] An individual commits this offense when he or she “[c]arries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.” (§ 25400, subd. (a)(1).)

Prior to trial, the prosecution filed a written motion in limine seeking to impeach defendant with his 2013 misdemeanor conviction. The prosecution cited People v. Aguilar (2016) 245 Cal.App.4th 1010, which concluded that a felony conviction under section 25400, subdivision (a)(1), is a crime of moral turpitude that may be used for impeachment, and determined the trial court did not abuse its discretion under Evidence Code section 352 in admitting the evidence. (People v. Aguilar, supra. at pp. 1019-1020.)

Here, the trial court ruled as follows: “The Court is going to allow the People to impeach the defendant with the act of moral turpitude, of carrying a concealed firearm in a vehicle. [¶] The Court finds that the conviction or the crime was not—is not unduly remote, having been two-and-a-half years and maybe a year-and-a half prior to the acts in question and the acts for which the defendant is charged. [¶] The Court finds that the probative value is not substantially outweighed by the prejudice or any of the other factors under Evidence Code section 352. [¶] So the Court will allow the People to impeach the defendant with that bad act.”

The prosecutor began cross-examination of the defendant by asking, “isn’t it true that on January 10th, 2013, you were convicted of a misdemeanor violation of carrying a firearm loaded and concealed in a vehicle?” Defendant replied affirmatively.

Conduct underlying a misdemeanor conviction may be admissible to impeach a witness. (People v. Wheeler, supra, 4 Cal.4th at pp. 295-296.) “Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.” (Id. at p. 296.) Moreover, “[a]dmission of such evidence . . . is subject to the trial court’s discretion to exclude it under Evidence Code section 352. . . . [A] trial court’s broad latitude in this respect will not be upset on appeal absent a showing of abuse of discretion.” (People v. Robinson (2005) 37 Cal.4th 592, 626.) “A trial court’s ruling to admit or exclude evidence offered for impeachment . . . will be upheld unless the trial court ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 705.)

“When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area.” (People v. Wheeler, supra, 4 Cal.4th at p. 296.) Those factors are: “whether it reflects on the witness’s honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant’s decision to testify.” (People v. Clark (2011) 52 Cal.4th 856, 931.) “But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (People v. Wheeler, supra, at pp. 296-297.)

Defendant contends “the [slight] probative value on the only theory of relevance militated against the use of the impeachment.” He does not challenge the trial court’s conclusion that his prior misdemeanor involved moral turpitude and he concedes his conduct was not remote. The testimony plainly did not involve an undue consumption of time. “Misconduct involving moral turpitude may suggest a willingness to lie.” (People v. Wheeler, supra, 4 Cal.4th at p. 295.) The similarity of the misconduct to a charged crime does not compel its exclusion; it is just one factor to consider. (People v. Clark, supra, 52 Cal.4th at p. 932; People v. Tamborrino (1989) 215 Cal.App.3d 575, 590 [“ ‘No . . . defendant who elects to testify in his own behalf is entitled to a false aura of veracity’ ”].) People v. Robinson, supra, 37 Cal.4th 592, on which defendant relies, is distinguishable. In that case, the court addressed whether the trial court abused its discretion by excluding evidence of a prior misdemeanor conviction for possessing a concealed handgun to impeach a prosecution witness. (Id. at pp. 624-626.) Our Supreme Court agreed that the slight relevance and probative value of the evidence was “outweighed by the prospect of confusing the issues—in particular, the jury might use that evidence not only with regard to veracity, but also (despite the trial court’s possible limiting instructions concerning third-party culpability evidence) for a purpose that the court had determined would be improper under the circumstances.” (Id. at p. 626.) That the Supreme Court found no abuse of discretion in excluding the evidence in that case is not dispositive of the question of whether the trial court in this case abused its discretion in admitting the evidence to impeach defendant’s credibility. Here, we conclude defendant has not demonstrated an abuse of discretion in admitting the impeachment evidence.

Defendant also contends “the trial court failed to engage in a meaningful analysis under Evidence Code section 352. The court failed to identify the theory of probative value applicable, and failed to identify the potential prejudicial impact.” The court reviewed the prosecutor’s written motion before taking it under submission at the request of defendant’s trial counsel. When it ultimately ruled on the issue, the trial court explained that the prior conduct was an “act of moral turpitude,” which is what renders the evidence probative. (People v. Wheeler, supra, 4 Cal.4th at p. 295.) The prosecution argued the conduct was a crime of moral turpitude based on People v. Aguilar, supra, 245 Cal.App.4th 1010, which also discussed the balancing of relevant factors in assessing the admissibility of the prior conviction. (Id. at p. 1020.) Here, the trial court explained on the record that “that the probative value is not substantially outweighed by the prejudice or any of the other factors under Evidence Code section 352.” Defendant cites no authority that supports his assertion that this ruling fails for lack of additional detail.

To the extent defendant contends the trial court’s ruling violated his rights under the United State Constitution to due process and a fair trial, “ ‘[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.’ ” (People v. Robinson, supra, 37 Cal.4th at pp. 626-627.)[6]

Thus defendant’s arguments that the trial court abused its discretion regarding defendant’s impeachment lack merit.

III. DISPOSITION

Defendant’s conviction as to count two is reversed with direction to dismiss the count. Defendant’s convictions as to counts one, three and four are reversed and remanded for retrial if the People so elect within 30 days of the issuance of our remittitur. If the People choose not to retry any of these counts, the trial court shall resentence defendant. The judgment is otherwise affirmed.

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

DUARTE, J.