P. v. Aguilar
Filed 10/18/13 P. v. Aguilar CA4/2
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opinion has not been certified for publication or ordered published for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.
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOSE AURELIO AGUILAR,
Defendant
and Appellant.
E056013
(Super.Ct.No.
FVI1000418)
OPINION
APPEAL from the Superior
Court of San Bernardino
County. John M.
Tomberlin, Judge. Affirmed.
Maureen M. Bodo,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy
Attorneys General, for Plaintiff and Respondent.
This is an appeal by Jose Aurelio Aguilar, defendant and appellant
(defendant), from the judgment entered after a jury found him guilty of being a
felon in possession of a firearm in violation of Penal Code section 12021,
subdivision (a)(1)[1] (count 1), and possession of ammunition in
violation of section 12316, subdivision (b)(1) (count 2), and the trial court
sentenced him to serve the middle term of two years in state prison on each count, to be served
concurrently.[2]
Defendant raises
two claims of error in this appeal—first, he contends the evidence is
insufficient to support the jury’s verdict finding him guilty on count 1 of
being a felon in possession of a firearm and, second, that the trial court
committed prejudicial error in responding to questions the jury asked during
their deliberations.
We conclude both
claims are meritless, as we explain below.
Therefore, we will affirm the judgment.
The
pertinent facts are undisputed. San
Bernardino County Deputy Sheriff Fernando Munoz obtained a search warrant for
defendant’s home based on information that illegal narcotics sales were taking
place at that location. On February 26, 2010, the deputy
executed that warrant. Defendant’s
teenage daughter was the only person in the house at the time of the
search. On the bed in the master
bedroom, Deputy Munoz found a shoebox that contained .45-caliber bullets. In the cabinet under a sink in the master
bathroom, the deputy found a locked safe that the deputy opened by picking the
lock. The safe contained a loaded .45-caliber
semiautomatic Ruger handgun, along with various receipts, and a letter
addressed to defendant.
Deputy
Munoz spoke with defendant over the phone while executing the search
warrant. During that conversation,
defendant acknowledged he and his three children lived in the house where the
search warrant was executed. Elizabeth
Cabral, the mother of defendant’s three children, arrived at the house while
Deputy Munoz was there. She asked if he
had found a gun and when he confirmed he had, she told him the gun was hers. She said she had moved out of the residence
three months earlier, but had given defendant the gun for safekeeping. According to Deputy Munoz, Ms. Cabral said
she did not know anything about the safe and did not have access to it.
Defendant
and Ms. Cabral both testified at trial.
Ms. Cabral said that although she moved out three years earlier, she is
at the house where defendant lives three days out of the week because her
children live there. She testified the
gun belonged to her, she had purchased it five or six years ago. She kept it in the safe, which also belonged
to her and only she had the combination.
She lost the box the gun came in so when she transported it she put it
and ammunition in a shoebox. Ms. Cabral
acknowledged she spoke with Deputy Munoz and another deputy at the house the
day the search warrant was executed. She
confirmed she told them she bought the gun, it was registered to her, and she
kept it at the house in the safe.
Defendant
testified, in pertinent part, that Ms. Cabral owned the gun, she kept it in the
safe when she was at the house, and he did not have access to the safe, nor did
he know the gun was at the house.
Defendant also testified he had previously been arrested for being a
felon in possession of a firearm. He
believed if the gun was secured and he did not have a key, he would not be in
violation of the law.
Defendant
first challenges the sufficiency of the evidence to support his conviction for
being a felon in possession of a firearm.
Defendant
contends the evidence was insufficient to show he possessed the gun Deputy
Munoz found in the safe because there was no uncontradicted evidence that
showed defendant had the ability to open the safe. We disagree.
“In
addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must 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. [Citation.] The appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from
the evidence. [Citations.] The same standard applies when the conviction
rests primarily on circumstantial evidence. [Citation.]”
(People v. Kraft (2000) 23
Cal.4th 978, 1053.)
As
the trial court instructed the jury, to find defendant guilty of being a felon
in possession of a firearm in violation of section 12021, subdivision (a), the
prosecutor must prove defendant possessed a firearm, defendant knew he
possessed a firearm, and defendant had previously been convicted of a felony. (See CALCRIM No. 2511.) The evidence in this case shows the gun was
found in a locked safe inside the house where defendant lived with his
children. No other adult was living in
the house at the time. Deputy Munoz
testified Ms. Cabral told him she had moved out three months earlier; however,
she testified at trial that she had not lived in the house for more than three
years. In addition to the gun, a letter
addressed to defendant was also in the safe.[3] Deputy Munoz testified that when he told Ms.
Cabral the gun had been found in a safe, she said she did not know anything
about the safe and did not have access to it.
Although Ms.
Cabral testified that the safe was hers and only she had the combination, the
jury was not obligated to believe that testimony. Instead the jury could believe Deputy Munoz’s
testimony that Ms. Cabral said she did not know about the safe and did not have
access to it.[4] Even without her statement, the evidence is
sufficient to support the jury’s implied finding that defendant possessed the
gun Deputy Munoz found in the safe. From
the fact the safe contained a letter addressed to defendant, the jury could
reasonably infer defendant could open the safe, and as a result he had
possession of the items in the safe.
Therefore, we reject defendant’s challenge to the sufficiency of the
evidence to support his conviction on count 1, the charge that he was a felon
in possession of a firearm in violation of section 12021, subdivision (a)(1).
2.
TRIAL COURT’S RESPONSE
TO JURY’S QUESTIONS DURING DELIBERATIONS
During their first
hour of deliberation, the jury sent three questions to the trial court. First, after less than 30 minutes of
deliberation, the jury asked, “What is the official law regarding a firearm in
the residence of a felon Are there
exceptions which would allow another occupant to have a firearm in the
house” The trial court responded,
“Please carefully review #2511 which is a complete statement of the law
applicable to count 1.”
Less than half an
hour after the first question, the jury sent the trial court two more
questions: “Can a convicted felon reside in a house where there is a firearm
that is locked away which he has no access to” and “What is the legal
definition of possession according to the law”
The trial court sent the jury home for the day without responding to
their questions. The next day, after
conferring with counsel, the trial court responded to both questions, “See
Instruction 2511.” The jurors resumed
deliberations.
Defendant contends
the trial court’s responses were inadequate, and the error was
prejudicial. We disagree.
“Section
1138 imposes upon the court a duty to provide the jury with information the
jury desires on points of law.”[5] (People
v. Smithey (1999) 20 Cal.4th 936, 985.)
“Where, as here, ‘the original instructions are themselves full and
complete, the court has discretion under . . . section 1138 to determine what
additional explanations are sufficient to satisfy the jury’s request for
information.’ [Citation.]” (People
v. Davis (1995) 10 Cal.4th 463, 522.)
Defendant’s
attorney only objected to the trial court’s response to the jury’s second
question. Because his attorney agreed to
the trial court’s responses to the jury’s first and third questions, defendant
cannot now complain about those responses on appeal. (People
v. Roldan (2005) 35 Cal.4th 646, 729, overruled on other grounds in
421, fn. 22.) Defense counsel urged the
trial court to answer “yes,” to the jury’s second question, “Can a convicted
felon reside in a house where there is a firearm that is locked away which he
has no access to” The trial court
declined, and as previously noted, again instructed the jury to look at the
pertinent jury instruction.
Defendant
contends the jury’s questions indicate they were having difficulty
understanding the legal concept of possession and control set out in CALCRIM
No. 2511. By responding the same
way to each question, defendant claims the trial court failed to give the jury
guidance. In other words, defendant
would have us infer from the fact the jury asked questions related to the issue
of possession and control three times within their first hour of deliberations,
that the jurors did not understand the concept and therefore the trial court
should have given them more instruction.[6]
Another inference
is equally plausible—the jury had not taken time to grapple with the law set
out in CALCRIM No. 2511. By referring
them to the pertinent jury instruction, the trial court made clear to the
jurors they needed to look there first for the answer to their questions. The jurors reached their verdicts after three
more hours of deliberations, a fact that
suggests they took time to consider the legal principles set out in the jury
instruction and thereby resolved their questions.
Because we do not
share defendant’s view, even after they consulted CALCRIM No. 2511, that the
jurors continued to have difficulty understanding the legal concept of
possession and control, we must reject his assertion that the trial court
should have told them “control” means “physical control.” We are persuaded from our review of the
record the jury did not understand that the jury instructions set out the
pertinent legal principles. Once they
reviewed and discussed the pertinent instruction, as the trial court directed
them to do, the jurors were able to resolve the questions they initially posed
to the trial court and thereby reach verdicts on all the charges. Therefore, we must reject defendant’s second
claim of error.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
[1] All further statutory references are to the
Penal Code.
[2] The jury found defendant not guilty of street
terrorism in violation of section 186.22, subdivision (a) and also returned not
true findings on so-called gang enhancements under section 186.22, subdivision
(b)(1)(A) alleged in connection with counts 1 and 2.
