P. v. Boult



















Filed 7/2/12
P. v. Boult CA3









NOT TO BE PUBLISHED







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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Sacramento)

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>

THE PEOPLE, Plaintiff and Respondent, v. DAVID CORNELIUS BOULT, Defendant and Appellant.

C068324 (Super. Ct. No. 10F07876)

A
jury found defendant David Cornelius Boult guilty of two counts of href="http://www.fearnotlaw.com/">possession of a firearm by a convicted
felon. In a bifurcated proceeding, he
admitted that he had suffered two strike convictions and had served three prior
prison terms. The trial court dismissed
one strike pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497.
Defendant was sentenced to state prison for 10 years 4 months,
consisting of six years on one count; one year four months on another count;
and three years for the prior prison terms.
He was awarded 393 days’ custody credit and 196 days’ conduct credit.href="#_ftn1" name="_ftnref1" title="">[1]

On
appeal, defendant contends: (1) the
trial court erred by failing to instruct the jury href="http://www.mcmillanlaw.com/">sua sponte on the accomplice
corroboration rule; and (2) his convictions are not supported by substantial
evidence. We affirm.

FACTS

While
on duty on the evening of April 23, 2010, Sacramento
County Sheriff’s Deputy Steve LeCouve observed a car roll through a stop sign
about 15 miles per hour. LeCouve pursued
the car as it travelled at 40 miles per hour in a 25-miles-per-hour zone and
rolled through two more stop signs. Then
LeCouve effected a traffic stop of the car.


Deputy
LeCouve approached the stopped car and asked the driver for his license. LeCouve noted that five people were in the
car: the driver, a male; in the front seat,
an adult female (later identified as Brianne Knight); in the rear left seat, a
male (identified as defendant); in the rear center seat, a female juvenile
(later identified as 15-year-old Kattie O.); and in the rear right seat,
another male.

Deputy
LeCouve immediately noticed that defendant was very fidgety. Defendant initially claimed that he had no
identification. Then he kneeled on the
backseat and spun around in order to face LeCouve. This behavior made LeCouve nervous so he
unholstered his gun and told defendant to display his hands. Defendant reached down the front of his
pants, which alarmed LeCouve. After
LeCouve again demanded to see defendant’s hands, defendant raised his hands and
produced his identification.

Deputy
LeCouve walked backwards to his patrol car while closely watching
defendant. In LeCouve’s experience,
furtive movements and actions of the sort displayed by defendant generally mean
that a suspect is trying to conceal or retrieve an object. LeCouve requested backup units and indicated
that he intended to search the stopped car.
At that point, defendant was still “ducking,” “dipping,” “bouncing
around, twisting around, looking in both directions,” which made LeCouve “quite
nervous.” Because other sheriff’s units
were still some distance away, LeCouve requested assistance from Elk Grove
Police Department officers who were closer to his location.

At
this point, defendant got out of the car despite Deputy LeCouve’s shouted
command to remain inside. LeCouve
pointed his gun at defendant and ordered him to get back in the car while
keeping his hands in view. Defendant did
not comply; he looked at LeCouve, said, “I got to go,” and then ran across the
five traffic lanes of Calvine Road and headed toward Vintage Park Drive where
LeCouve lost sight of him.

Deputy
LeCouve remained at the scene of the traffic stop, holding the remaining
occupants of the car at gunpoint while awaiting the arrival of other law
enforcement units. A Sacramento Police
Department helicopter joined the search for defendant. After other units arrived, the people in the
car were ordered out at gunpoint.
LeCouve immediately entered the rear passenger compartment, examined the
area where defendant had been sitting, found ammunition on the floor, and saw
the butt of a revolver protruding from under the driver’s seat. When examined, the revolver was found to be
fully loaded. The construction of the
car is such that the gun could not have slid back from the driver’s position to
where it was found.

A
flight officer from the Sacramento Police Department helicopter testified that
the aircraft had been called to the scene of a traffic stop to conduct an
aerial search for defendant. Soon after
the crew received a description, they spotted defendant running through the
area and saw him climb a fence and enter the rear yard of a residence. Defendant was then taken into custody.

Kattie,
age 16 at the time of trial, testified about the evening’s events. Kattie had been riding in the rear seat of
the car. Defendant, whom she had not met
before, was seated to her left. They
were on their way to a restaurant to purchase dinner. After the traffic stop, an officer approached
the car and defendant began moving around, “[t]rying to figure out what to do with the guns.” Kattie saw two guns in the car: one was silver, and the other was “black,
brown” in color. The driver attempted to
convince defendant to get out of the car and run away with one of the guns,
because it was “dirty.” The black gun, a
revolver, was in a pocket on the rear of the driver’s seat immediately in front
of defendant. The driver handed
defendant the other weapon, which was silver with black grips. Defendant stated, “‘I’m going to take one and
I’m going to leave one.’” He tried to
hide the silver gun under the driver’s seat and then took off running.

Knight
reluctantly testified under a grant of use immunity. Knight has a 2005 felony conviction for
possession of rock cocaine for sale.

Knight
confirmed that the five people in the car were on their way to purchase
something to eat. She claimed she knew
the driver only as “Anthony” and did not know defendant at all. Knight denied knowing anything about any
firearms in the car, and she did not remember telling Deputy LeCouve anything
about the presence of such firearms.

Deputy
LeCouve was recalled to the witness stand to impeach Knight’s just-completed
testimony. LeCouve had interviewed
Knight after the traffic stop, and she had said that she had been aware of the
firearms in the car just before the traffic stop. Knight further told LeCouve that, when he
initiated the traffic stop, defendant “started freaking out and getting real
nervous because he was holding a gun.”

After
speaking to Knight, Deputy LeCouve spoke to Kattie. Kattie told LeCouve that, after he obtained
everyone’s identification, defendant had pulled a .38-caliber revolver from his
waistband and placed it on the floorboard along with a sock full of bullets,
which he also retrieved from his pants. Kattie told LeCouve
that, immediately before getting out of the car, defendant had stated, “‘I’m
going to take one and I’m going to leave one.’”


Sacramento
County Sheriff’s Deputy Richard Kemp testified that a police dog, which had
been specially trained to locate firearms, searched for a semiautomatic pistol
along the route defendant had used to flee the scene of the traffic stop. Following a search of less than 20 minutes,
the dog located the silver firearm.

The
defense rested without presenting evidence or testimony.

DISCUSSION

I

>Corroboration Of
Accomplices

Defendant
contends the trial court violated his due process rights by allowing the jury
to find him guilty based solely on the “uncorroborated testimony of accomplices
who had a motive to lie.” He claims “the
parties recognized that both Knight and Kattie could be deemed accomplices to
the crimes,” but “the trial court never instructed the jury that before it
could consider Knight and Kattie’s statements and testimony inculpating [him],
it had to decide whether they were accomplices”; nor did the court instruct
that, if it found they were
accomplices, it could not rely on their testimony alone to convict
defendant. None of these claims has
merit.

Prior
to trial, the court appointed counsel for Knight and Kattie “so that counsel
can confer with those witnesses regarding any potential href="http://www.fearnotlaw.com/">Fifth Amendment issues pertaining to
their testimony that they may give in this matter.” Counsel for Kattie indicated he had advised
her of her rights and indicated he had no issue with respect to her
testifying. Counsel for Knight advised
her to invoke her Fifth Amendment right.
Ultimately, Knight testified under a grant of use immunity.

Following
the close of evidence, the parties met out of the presence of the jurors to
settle the issue of the jury instructions.
Defense counsel did not request any instructions concerning accomplice
corroboration. In the trial court’s
charge to the jurors, there were no instructions on the subject of accomplice
corroboration.

“[Penal
Code s]ection 1111^[href="#_ftn2" name="_ftnref2" title="">[2]^]
provides: ‘A conviction can not be had
upon the testimony of an accomplice unless it be corroborated by such other
evidence as shall tend to connect the defendant with the commission of the
offense . . . .’
Under section 1111, an accomplice is ‘one who is liable to prosecution
for the identical offense charged against the defendant on trial in the cause
in which the testimony of the accomplice is given.’ An accomplice must have ‘“guilty knowledge
and intent with regard to the commission of the crime.”’ [Citations.]
‘If there is evidence from which the jury could find that a witness is
an accomplice to the crime charged, the court must instruct the jury on
accomplice testimony. [Citation.] But if the evidence is insufficient as a
matter of law to support a finding that a witness is an accomplice, the trial
court may make that determination and, in that situation, need not instruct the
jury on accomplice testimony.’
[Citation.]” (>People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 302.)

Here,
the trial court made no determination that Knight was not an accomplice as a
matter of law, nor did the court give the accomplice instructions.

“Section
1111 codifies common law concerns about the reliability of accomplice
testimony. [Citation.] ‘[S]uch testimony has been legislatively
determined never to be sufficiently trustworthy to establish guilt beyond a
reasonable doubt unless corroborated.’
[Citation.] Our analysis of
harmless error in the omission of accomplice instructions reflects the idea
that sufficient corroboration allays the concerns regarding unreliability
embodied in section 1111. Thus, even in
cases where the full complement of accomplice instructions (including CALJIC
No. 3.18) was erroneously omitted, we have found that sufficient corroborating
evidence of the accomplice testimony rendered the omission harmless. [Citations.]
[T]he evidence of corroboration is ‘sufficient if it tends to connect
the defendant with the crime in such a way as to satisfy the jury that the
accomplice is telling the truth.’
[Citation.]” (People v.
Gonzales and Soliz,
supra, 52 Cal.4th at pp. 303-304.)

Defendant’s
claim that “both Knight and Kattie could be deemed
accomplices” is based, not upon statutory analysis, but upon the trial court’s
appointment of counsel for both witnesses prior to trial. However, section 1111 makes plain that Kattie
was not an accomplice. An accomplice is
defined as “one who is liable to prosecution for >the identical offense charged against
the defendant,” i.e., possession of a firearm by a felon. (§ 1111;
italics added.) Nothing in the record
suggested that 16-year-old Kattie was a felon. Thus,
even if she were liable to prosecution for some
firearm-related offense that warranted the appointment of counsel in an
abundance of caution, she was not
liable for the identical offense charged
against defendant and could not have been his accomplice.

In
this case, there was sufficient corroboration regardless of whether Knight was
in fact an accomplice.

Apart from Kattie’s testimony, Deputy LeCouve found one of the
firearms and bullets evidently within inches of where defendant had been
sitting in the car while engaging in a variety of furtive activity that, the
officer suspected, involved secreting something unlawful in the car. And after LeCouve observed defendant’s flight
from the scene of the traffic stop, another officer and his police dog located
a firearm that, in light of its proximity in time and distance, defendant
obviously had discarded while attempting to evade capture.

Thus,
because Knight’s testimony was abundantly and sufficiently corroborated, there
was no danger of defendant being convicted on the basis of uncorroborated
testimony. Defendant’s section 1111 and
related due process claims necessarily fail.

II

>Substantial Evidence

In
a separate but related argument, defendant contends both his convictions must
be reversed because there was no “substantial and credible evidence” that he
possessed either firearm. He reasons
that, because he did not have general dominion and control over either location
where a firearm was found, his convictions cannot rest upon his mere presence
in the car or along the path of his flight.
Thus, he argues, further evidence was required, but the only additional
evidence on the point was “the uncorroborated statements and testimony of
accomplices Knight and Kattie.” We are
not persuaded.

“On
appeal, the test of legal sufficiency is whether there is substantial evidence,
i.e., evidence from which a reasonable trier of fact could conclude that the
prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.]
Evidence meeting this standard satisfies constitutional due process and
reliability concerns. [Citations.] [¶]
While the appellate court must determine that the supporting evidence is
reasonable, inherently credible, and of solid value, the court must review the
evidence in the light most favorable to the [judgment], and must presume every
fact the jury could reasonably have deduced from the evidence. [Citations.]
Issues of witness credibility are for the jury. [Citations.]”
(People v. Boyer (2006)
38 Cal.4th 412, 479-480.)

Section
29800, subdivision (a)(1), provides in relevant part: “Any person who has been convicted of a
felony under the laws of . . . the State of California
. . . and who owns, purchases, receives, or has in possession or
under custody or control any firearm is guilty of a felony.”

“The
elements of the offense proscribed by section [29800, subdivision (a)(1)] are
conviction of a felony and ownership, possession, custody or control of a
firearm. [Citations.] Knowledge is also an element of the offense. [Citation.]
[¶]

As with any crime or public offense, in order to prove a violation of section
[29800, subdivision (a)(1)], the prosecution must prove, beyond a reasonable
doubt, a union, or joint operation of act and intent. [Citation.]
No specific criminal intent is required for this crime; general intent
to commit the proscribed act is sufficient to sustain a conviction. [Citations.]
[W]hether possession is actual or constructive, it must be
intentional.” (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.)

Thus,
a convicted felon who owns, possesses, or has custody or control of a firearm
commits a felony. “Implicitly, the crime
is committed the instant the felon in any way has a firearm within his
control.” (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410; italics
omitted.)

Kattie
testified that she saw two different firearms in the car: one was a revolver in a pocket on the back of
the driver’s seat inches in front of defendant.
She witnessed a discussion between defendant and the driver concerning
two pistols, one of which was described as “dirty.” Following this discussion, the driver handed
defendant a second, silver gun. At that
point, defendant said, “‘I’m going to take one [gun] and I’m going to leave
one.’” After trying to hide one gun
under the driver’s seat, defendant took off running with the other gun. The revolver was later found by law
enforcement officers, partially concealed on the floorboard beneath the
driver’s seat. The other gun was found
on the path of defendant’s flight from the car.


The
jury impliedly credited this evidence and testimony when it found defendant
guilty on both counts. Both convictions
are supported by substantial evidence. (>People v. Boyer, supra, 38 Cal.4th
at pp. 479-480.)

DISPOSITION

The
judgment is affirmed. The trial court is
directed to correct the abstract of judgment and to forward a certified copy to
the Department of Corrections and
Rehabilitation.







ROBIE , Acting P. J.







We concur:







BUTZ , J.







MURRAY , J.