P. v. Fisher
Filed 8/15/13 P. v. Fisher CA5
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IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHAEL JASON FISHER,
Defendant and
Appellant.
F064811
(Super.
Ct. No. CRF36959)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
County. James A.
Boscoe, Judge.
Christian
Koster, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
A jury
convicted defendant Michael Jason Fisher of being a felon in
(§ 667.5, subd. (b)), and was sentenced to three years in prison. On appeal, he claims the trial court erred by
denying his motion for acquittal and
by overruling his objections to purportedly argumentative questions by the
prosecutor. We affirm.
FACTS
I
Evidence
As of October 26, 2011, John Daley, Jr.,
lived in a residence on Jupiter Road,
in Tuolumne County,
with Shannon Fisher (Fisher) and their children. Daley was growing and processing marijuana at
the time.
About 3:30 that afternoon, Tuolumne County Sheriff’s
Detective Eric Erhardt and other investigators arrived at the residence and
were met outside by Daley. Erhardt
walked with Daley around the back of the house.
About 10 or 15 minutes later, Erhardt returned to the front and saw
defendant on the porch with the other investigators. A young child was also on the premises.
Erhardt
entered the house through the front door.
To the right was an unlocked, glass-doored gun cabinet that contained a
rifle. The rifle was not loaded, but
there was ammunition for it in the drawers in the bottom portion of the
cabinet.
All of the
doors inside the house were “open and unlocked.†On the first floor were two bedrooms
containing beds. Defendant’s wallet,
mail or documents bearing defendant’s name, some adult male clothing, a beer
can, a disposable razor, and deodorant were among the items found in one of
these bedrooms.
title="">[2] A third bedroom contained drying
marijuana.
Upstairs
were a child’s play area and the master bedroom and bath. A number of items of interest were located in
the master bedroom. An unloaded rifle
was found underneath the bed. Several
pounds of marijuana were found in various locations in the room. Daley’s wallet was in the dresser, and there
were documents in the room bearing his name.
Female clothing was also found.
Directly behind the dresser, which had been pulled four or five inches
away from the wall, were two shotguns.
One was loaded and had a shell in the chamber. There was shotgun ammunition in the
dresser. Six more unloaded firearms —
both rifles and shotguns — were in the closet.
There was an assortment of ammunition for these guns in a desk and
closet downstairs.
At trial,
Daley testified the shotguns had been behind the dresser for at least a
week. The house was in a wilderness area
and they had had problems with bears and coyotes. The rifle in the gun cabinet was his; he had
put it there a night or two earlier when he went to check on why the dogs were
barking. Daley normally kept the guns
locked in the upstairs bedroom, to which he and Fisher had keys. Although he kept the bedroom locked 90
percent of the time, it was unlocked the day investigators arrived because
Daley was home.
Daley was
away at work from July until October
13, 2011. Fisher was also
working at the time. At some point,
defendant took over as fulltime babysitter for Daley and Fisher’s younger
child. Although defendant stayed at the
house sometimes, Daley did not believe he lived there. Daley admitted, however, that he did not
really know what went on during the week, because he left every Sunday
afternoon for work and did not return until the following Friday night or
Saturday morning.
Daley and
defendant did not talk about guns being in the house. Daley knew defendant could not shoot or own a
gun, but did not think being around guns was an issue. Defendant never asked to use Daley’s
guns.
II
Evidence
Fisher, defendant’s
sister, lived at the residence on Jupiter, together with Daley and their two
children, at the time of the incident.
In October 2011, defendant was at the house from one to five times a
week, depending on whether he was babysitting.
If babysitting, defendant usually would watch the younger child from
around 5:00 a.m. until afternoon or evening.
Although he was not actually living at the house, he stayed overnight
perhaps one to three times a week. He
used the spare bedroom downstairs.
The gun
cabinet just inside the front door belonged to Fisher. She owned four of the guns investigators
found; Daley owned the rest, including the rifle in the gun cabinet. None of the firearms belonged to
defendant. Fisher never gave defendant
permission to use any of her weapons.
The master
bedroom had a key lock. The gun cabinet
also had a lock. Fisher was not aware
the gun cabinet was unlocked. There was
no gun in it when she left for work the morning of the incident. Fisher was not concerned about having
firearms in the house with her brother, a convicted felon, because the weapons
were locked up. She did not know how
they came to be unlocked when law enforcement arrived. She did not lock her bedroom door when she
left for work at 5:00 that morning, but Daley was asleep in the room when she
left. She could not speak for Daley as
to whether his presence would have stopped defendant from getting a gun if he
wanted to do so. Fisher and Daley had an
understanding that the bedroom was to be locked when Fisher was not there.
DISCUSSION
I
of Motion for Acquittal
At the
close of evidence, defendant moved for acquittal, pursuant to
section 1118.1, on the ground the People failed to present sufficient
evidence to show defendant had possession of the firearms or that he took any
steps to actually exercise control over them, either directly or indirectly.
motion, finding sufficient evidence from which the jury reasonably could infer
defendant had control over the weapons, either directly or through Fisher or
Daley. Defendant now says the court
erred.
“A trial
court should deny a motion for acquittal under section 1118.1 when there is any
substantial evidence, including all reasonable inferences to be drawn from the
evidence, of the existence of each element of the offense charged. [Citations.]â€
(People v. Mendoza (2000) 24
Cal.4th 130, 175.) In other words, “the
trial court applies the same standard as an appellate court reviewing the
sufficiency of the evidence.†(
1286.) Under this standard, the test of
sufficiency of the evidence is whether, reviewing the whole record in the light
most favorable to the judgment below, substantial evidence is disclosed such that
a reasonable trier of fact could find the essential elements of the crime
beyond a reasonable doubt. (
578; accord, Jackson v. Virginia (1979)
443 U.S. 307, 319.) Substantial evidence
is that evidence which is “reasonable, credible, and of solid value.†(People
v. Johnson, supra, at p. 578.)
We
independently review a ruling on a motion under section 1118.1 (
p. 1286), keeping in mind that where the trial court has denied the
motion, “we must … assume in favor of its order the existence of every fact
from which the jury could have reasonably deduced from the evidence whether the
offense charged was committed and if it was perpetrated by the person or
persons accused of the offense.
[Citations.] Accordingly, we may
not set aside the trial court’s denial of the motion on the ground of the
insufficiency of the evidence unless it clearly appears that upon no hypothesis
whatsoever is there sufficient substantial evidence to support the conclusion
reached by the court below.
[Citations.]†(
828; accord, People v. Cuevas (1995)
12 Cal.4th 252, 261; People v. Allen (2001)
86 Cal.App.4th 909, 913-914.) However,
“[e]vidence 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. [Citations.]â€
(People v. Redmond (1969) 71
Cal.2d 745, 755.)
“The
elements of the offense proscribed by section 12021 are conviction of a felony
and ownership, possession, custody or control of a firearm. [Citations.]
Knowledge is also an element of the offense. [Citation.]â€
(People v. Jeffers (1996) 41
Cal.App.4th 917, 922; accord, People v.
Snyder (1982) 32 Cal.3d 590, 592.)
“Implicit in the crime of possession of a firearm is that a person is
aware both that the item is in his or her possession and that it is a
firearm.†(People v. Kim (2011) 193 Cal.App.4th 836, 846.) “The elements of unlawful possession may be
established by circumstantial evidence and any reasonable inferences drawn from
such evidence. [Citations.]†(People
v. Williams (1971) 5 Cal.3d 211, 215.)
No evidence
was presented at trial that defendant actually physically possessed a firearm
at any time.
title="">[4] Unlawful possession may be physical or
constructive, however. (
p. 215.) “Constructive possession
occurs when the accused maintains control or a right to control the contraband;
possession may be imputed when the contraband is found in a place which is
immediately and exclusively accessible to the accused and subject to his
dominion and control, or to the joint dominion and control of the accused and
another. [Citation.]†(Ibid.) “The accused also has constructive possession
of [contraband] that [is] in the physical possession of his agent or of any
other person when the defendant has an immediate right to exercise dominion and
control over the [contraband].
[Citations.]†(
71.) “The inference of dominion and
control is easily made when the contraband is discovered in a place over which
the defendant has general dominion and control:
his residence [citation], his automobile [citation], or his personal
effects [citation]. However, when the
contraband is located at premises other than those of the defendant, dominion
and control may not be inferred solely from the fact of defendant’s presence,
even where the evidence shows knowledge of the presence of the
[contraband] .…†(
579, 584.)
“[W]hether
possession is actual or constructive, it must be intentional.†(People
v. Jeffers, supra, 41 Cal.App.4th at p. 922.) Although “a general intent to commit the
proscribed act is sufficient†(People v.
Snyder, supra, 32 Cal.3d at p. 592), “[w]rongful intent must be shown
with regard to the possession and custody elements of the crime of being a
felon in possession of a firearm.
[Citation.] A person who commits
a prohibited act ‘through misfortune or by accident, when it appears that there
was no evil design, intention or culpable negligence’ has not committed a
crime. (§ 26.) Thus, a felon who acquires possession of a
firearm through misfortune or accident, but who has no intent to exercise
control or to have custody, commits the prohibited act without the required
wrongful intent.†(People v. Jeffers, supra, 41 Cal.App.4th at p. 922.)
In
the present case, the rifle defendant was specifically convicted of possessing
was in plain view in an unlocked cabinet in the common area of a house in which
defendant stayed on an almost daily basis and frequently overnight.
with Daley, the gun’s owner, and Daley considered defendant free to “come over
[to the house] and hang out†even when not babysitting. In light of these circumstances and the fact
defendant was in the kitchen, cooking, when investigators arrived, jurors
reasonably could have concluded he had unfettered access to common areas of the
residence regardless of whether Daley and Fisher were home. Moreover, defendant alone was in charge of
the house when babysitting, and was left alone as the only adult inside the
house when Daley went outside to speak to investigators upon their
arrival. Under the circumstances, jurors
reasonably could have concluded the prosecutor proved all elements of the
charged offense. (Compare
pp. 213-214, 215 [sufficient circumstantial evidence supported inference
defendant had dominion and control over, and knowledge of presence of, single
Benzedrine tablet found in plain sight on floor in front of car’s passenger
seat where defendant was sitting]; People
v. Clark (1996) 45 Cal.App.4th 1147, 1151, 1156 [evidence sufficiently
proved defendant had knowledge he possessed firearm where shotgun was found in
motor home in which defendant was living with girlfriend, defendant told
girlfriend he “did not want to deal with it†and girlfriend agreed to ask owner
to remove weapon] with People v. Stanford
(1959) 176 Cal.App.2d 388, 391 [insufficient evidence Coleman, a visitor to
Stanford’s house, constructively possessed drugs found in bathroom where
Coleman was present when Stanford sold heroin to another, as Coleman did not
have possession or control of premises].)
Accordingly, the trial court correctly denied defendant’s motion for
acquittal.
Cal.App.4th 1410 does not compel a different conclusion. In that case, police found convicted felons
Sifuentes and Lopez in a motel room.
Sifuentes was lying on top of the bed nearest the door, while Lopez was
kneeling on the floor on the far side of the second bed. A loaded handgun was found under the mattress
next to where Lopez knelt. (
and Lopez were active participants in a particular criminal street gang; guns
play a prominent role in the gang subculture and a “gang gun†is a gun passed
freely among gang members for use in their criminal endeavors; aside from
certain restrictions, a “gang gun†is accessible to all gang members at most
times; and a gang member possessing a gun will inform other gang members that
he has a firearm. (Id. at pp. 1414-1416.)
Sifuentes
was convicted, inter alia, of possession of a firearm by a felon, based on the
v. Sifuentes, supra, 195 Cal.App.4th at pp. 1413, 1417.) On appeal, he claimed the evidence was
insufficient to support a finding he had the right to control the firearm
discovered near Lopez. (
expert any substantial evidence Sifuentes had the right to control the
firearm. The expert did not testify all
gang members had the right to control communal gang guns, assuming this firearm
fell into that category. Rather, … he
testified certain restrictions applied concerning ‘access’ to a gang gun and
did not explain these restrictions or whether he equated access with a right to
control. Nor did the expert link
Sifuentes to the particular firearm found next to Lopez.†(Id.
at p. 1419, fn. omitted.)
In the
present case, by contrast, the rifle in the gun cabinet was in plain view in a
common area of the premises, and defendant recently had been in physical
control of the premises. Moreover, this
was not a case that depended on expert opinion.
(Compare People v. Sifuentes,
supra, 195 Cal.App.4th at p. 1419 [law does not accord to expert’s
opinion same degree of credence as it does data underlying opinion].)
II
Questions
During
Fisher’s testimony, both counsel explored at length the circumstances under
which Fisher obtained a doctor’s marijuana recommendation. Fisher testified, in essence, that she lied
to get the recommendation, but was coerced into doing so by Daley. This led to several rounds of questioning
designed to attack or bolster Fisher’s credibility, particularly concerning her
alleged fear of Daley. When defense
counsel questioned Fisher on how long Daley had been growing marijuana at the
house, the prosecutor followed up by questioning Fisher concerning her
knowledge of how much marijuana was at the house, to which Fisher replied she
was “not aware.†This ensued:
“Q. [by Mr. Hovatter, prosecutor] Now, it’s your testimony today … that you
were glad to see John Daley go.
“A. [by Shannon Fisher] Correct.
“Q. You could finally be honest with the police
and about the coercion and the bogus marijuana recommendation.
“A. That’s correct.
“Q. Yet any time before that, before October --
so September, August, July, June, and the months before, you could have, at any
time, called the police, told them that someone was growing marijuana out at
your house, and they could have come out, and the police would have been there
and you could have been honest with them, but you never did?
“MS.
WOODALL [defense counsel]: Your Honor,
I’m going to object. Argumentative, and
asked and answered.
“THE
COURT: Overruled. [¶] … [¶]
“Q. You knew there was marijuana growing outside,
something going on with marijuana inside your house, right?
“A. Correct.
“Q. Long before October 26th, 2011?
“A. That’s correct.
“Q. You never called law enforcement to report
it?
“A. That’s correct.
“Q. And yet had you done that, the police would
have come and you could have come clean and all that?
“A. I didn’t know what the outcome would be had I
done that.
“Q. You’re bright enough to figure that out,
aren’t you?
“MS.
WOODALL: Objection, argumentative.
“THE
COURT: I’m going to sustain that.
“MR.
HOVATTER: Q. Did you ever think about it? Did you ever lie awake at night thinking
about your 13-year-old daughter and your two-year-old son being in a house with
guns and marijuana? Did you ever think
about, ‘Maybe I could do this and things would happen’?
“MS.
WOODALL: Your Honor, I’m going to
object. Again, argumentative. And at this point, he is just harassing the
witness.
“THE
COURT: I’m going to allow this question
to be asked, and let’s move off to another subject, Mr. Hovatter. [¶] … [¶]
“THE
WITNESS: There is nothing illegal about
owning weapons as long as you are safe with them. I do own weapons, and I keep them safe from
my kids.
“And as
far as marijuana is concerned, I was trying to leave. I was looking for a place to go and a way out
at the time, but I would -- I’m a single mom and I’m not rich.
“MR.
HOVATTER: Q. You’re talking about being safe with weapons,
and yet there is testimony there is a loaded shotgun in your bedroom. Did that gun become loaded after you left
that morning?
“A. I was unaware there was a loaded shotgun in
my room.
“Q. It’s right behind the dresser not feet from
where you are sleeping. Can you explain
to this jury how something so obvious could just be completely unknown to you?
“MS.
WOODALL: Objection, argumentative.
“THE
COURT: I’ll overrule that.
“THE
WITNESS: Do you look behind your dresser
on a daily basis?â€
Defendant
now contends the trial court erred by overruling his objections to the
prosecutor’s allegedly argumentative cross-examination. He says the questions suggested the
prosecutor had superior knowledge regarding safety precautions taken to keep
guns inaccessible to third parties, and that due process was violated because
his trial was rendered fundamentally unfair as a result.
Although a
trial court is required to “exercise reasonable control over the mode of
interrogation of a witness so as to make interrogation as rapid, as distinct,
and as effective for the ascertainment of the truth, as may be, and to protect
the witness from undue harassment or
embarrassment†(Evid. Code, § 765, subd. (a)), the court has “broad
discretion … to keep cross-examination within reasonable bounds. [Citations.]â€
(People v. Jones (1962) 207
Cal.App.2d 415, 421-422.) This
discretion includes the power to exclude argumentative questioning (
747), and a prosecutor should refrain from asking questions “‘designed to
engage a witness in argument rather than elicit facts within the witness’s
knowledge.’ [Citation.]†(People
v. Pearson (2013) 56 Cal.4th 393, 435-436; see also People v. Johnson (2003) 109 Cal.App.4th 1230, 1236.)
Assuming
the trial court erred by overruling defense objections to questions that were
truly argumentative, as opposed to merely being “barbed and accusatory at
times†(People v. Pearson, supra, 56
Cal.4th at p. 436), we discern no prejudice.
reversal only if the evidence should have been excluded on the ground stated
and it is reasonably probable a result more favorable to the defendant would
have been reached in the absence of the error.
(People v. Earp (1999) 20
Cal.4th 826, 878; People v. Watson
(1956) 46 Cal.2d 818, 836.) We conclude
it is not reasonably probable defendant would have obtained a more favorable
result had the trial court sustained the defense objections to the challenged
questions, particularly since the jury focused on the rifle downstairs and not
the firearms in the master bedroom.
Defendant
says, however, that he was deprived of due process. He claims the challenged questions implied
the guns were being stored unsafely, “which was not derived from any testimony
given by the witness but by an assumption that [the prosecutor] himself
made. Therefore, the prosecutor implied
that he ha[d] superior knowledge over Ms. Fisher as to the circumstances within
the household.†Defendant further
asserts the questions implied the prosecutor was aware of facts not before the
jury.
We
disagree. There was evidence apart from
Fisher’s testimony from which a rational inference could be drawn that multiple
firearms — at least one of which was loaded and most or all of which had
ammunition readily at hand — were left unlocked and accessible despite the
presence of children in the house. We
find no implication of supposed superior knowledge or awareness of facts not
before the jury. Rather, it is apparent
from the record that the prosecutor was attempting to challenge Fisher’s
credibility. “[A]lways relevant for impeachment
purposes are the witness’s capacity to observe and the existence or nonexistence
of any fact testified to by the witness.
[Citations.]†(
9; see also Evid. Code, § 780.) The
challenged questions and resultant admission of evidence, even if error, simply
did not render defendant’s trial fundamentally unfair. Accordingly, there was no due process
violation. (People v. Hunt (2011) 196 Cal.App.4th 811, 817.)
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Gomes, Acting P.J., Kane, J. and Detjen, J.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code unless otherwise stated.
Former
section 12021, subdivision (a)(1) was repealed as of January 1, 2012, and its
provisions reenacted without substantive change as section 29800,
subdivision (a)(1). (Stats. 2010,
ch. 711, §§ 4 & 6; see People v.
Correa (2012) 54 Cal.4th 331, 334, fn. 1.)
Because defendant was convicted under the repealed statute, we refer to
former section 12021 — without the word “former†— throughout this opinion
for clarity and convenience.
