Filed 7/28/26 P. v. McClure CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085060
Plaintiff and Respondent,
v. (Super. Ct. No. SCD302775)
TERRY MCCLURE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Jeffrey F. Fraser, Judge. Affirmed.
Eric Multhaup, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A.
Swenson and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
Terry McClure appeals the order suspending imposition of sentence
and placing him on probation after a jury found him guilty of driving under
the influence of a drug and possession of a firearm by a felon. He claims the
trial court prejudicially erred by excluding as hearsay statements and related
conduct that he contends indicated surprise when a police officer told him a
firearm was found in the car he had just crashed. We affirm the order.
I.
A.
Clara Phillips was at home in bed when she heard a car crash on her
lawn. She called 911.
Police officers Carlo Dumaplin and Philippe Montayre responded to the
call. Dumaplin saw McClure standing unsteadily alongside the car and
suspected he was under the influence of alcohol or a drug. He asked McClure
for his driver’s license, vehicle registration, and proof of insurance. McClure
said they were in the car. Montayre tried to get the items from the glove box
but found it was locked. He asked where the key was, and McClure
responded it was on top of the car. After getting the key, Montayre unlocked
the glove box and found a handgun. McClure was arrested. The firearm was
not submitted for DNA or fingerprint tests.
Juan Perez, a police officer assigned to investigate DUI-related
collisions, was summoned to the scene. Perez found McClure sitting in the
back of a police patrol car with bloodshot and watery eyes, smelling of
alcohol, and unable to follow instructions for a field sobriety test. McClure
admitted he had been drinking alcoholic beverages and consented to a blood
test. When the blood was drawn at the police station, he admitted he had
consumed phencyclidine that day. The blood tested positive for that drug.
McClure agreed to talk to Perez about the crash. When Perez said he
had some questions about the gun found in the car, McClure interrupted and
asked, “‘A firearm?’” Perez then said, “‘Yeah. There was a gun inside your
car.’” McClure asked, “‘There was?’” Perez answered, “‘Yes.’” McClure said,
“‘Huh.’”
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B.
The People charged McClure with possession of a firearm by a felon
(Pen. Code, § 29800, subd. (a)(1)), possession of an assault weapon
(§ 30605(a)), and driving under the influence of a drug (Veh. Code,
§ 23152(f)). He pled not guilty to all charges. The case proceeded to a jury
trial.
McClure filed a motion in limine to admit his statements in response to
Perez’s report that a firearm had been found in the car. He argued the
statements were admissible as spontaneous statements (Evid. Code, § 1240)
and to show their effect on the hearer, namely, the negligent failure of law
enforcement to submit the firearm for DNA or fingerprint tests, which he
says should have been done based on his denial of knowledge of the gun. The
trial court ruled the statements were inadmissible hearsay and denied the
motion.
During cross-examination of Perez at trial, defense counsel broached
the topic of McClure’s response to being “confronted with the firearm.” When
the prosecutor made a hearsay objection, defense counsel responded, “I’m
only going to ask about his actions.” The court directed defense counsel to
ask her question. She asked whether McClure “was surprised when [Perez]
mentioned a firearm.” The court sustained the People’s objections that the
question called for hearsay and speculation.
McClure stipulated he had a prior felony conviction.
In closing argument, the prosecutor urged the jury to find McClure
guilty of possession of a firearm by a felon and argued:
So what evidence do you have? There’s no one else there. It’s
just him. He had the keys to the car. The wallet was in the
driver’s side; he told the officers where it was. He was the driver
of the car. It’s his car. It’s his glove box; his locked, broken glove
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box. He gets out of the passenger side of the car. Everything in
this case, and what the officers concluded on the scene that night,
everything points to one simple, reasonable conclusion: it’s his
gun. There’s nothing to suggest otherwise. Everything points to
the fact that it’s his and that he knew it was there.
McClure argued there was reasonable doubt he knew the gun was in the car
because: (1) he admitted to consuming alcohol and phencyclidine and allowed
police to access the glove box, but never admitted knowing the gun was there;
and (2) police failed to test the gun for DNA or fingerprints. In rebuttal, the
prosecutor argued the evidence sufficed to prove guilt beyond a reasonable
doubt, but if jurors were not convinced without DNA or fingerprints they
should vote not guilty.
During deliberations the jury sent a note requesting clarification on the
knowledge element of the charge of possession of an assault weapon. The
trial court responded that to find McClure guilty of that charge, the jury had
to find he knew or reasonably should have known “the characteristics [of the
firearm] make it an assault weapon, not just that he knew the weapon
possessed those characteristics.”
The jury found McClure guilty of possession of a firearm by a felon and
of driving under the influence of a drug but not guilty of possession of an
assault weapon. The court suspended imposition of sentence and placed him
on probation for two years.
II.
McClure seeks reversal of the firearm conviction. He complains the
trial court’s exclusion of evidence of his surprised reaction to being told a
handgun had been found in his car violated both California evidence law and
his federal constitutional right to present a defense. He contends the
evidence was admissible and its exclusion was prejudicial. We need not
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decide whether the evidence was admissible, because even if it were, its
exclusion was harmless.
When a trial court erroneously applies the rules of evidence to exclude
some evidence that a defendant seeks to present but does not entirely refuse
to allow the defendant to present a defense, prejudice is evaluated under the
miscarriage-of-justice standard for state law error prescribed by People v.
Watson (1956) 46 Cal.2d 818, 836, not under the beyond-a-reasonable-doubt
standard for federal constitutional error prescribed by Chapman v. California
(1967) 386 U.S. 18, 24. (People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103.)
Under the miscarriage-of-justice standard, erroneous exclusion of evidence
warrants reversal of a judgment only when the reviewing court concludes,
based on an examination of the entire cause, including the evidence, that it is
reasonably probable the appellant would have obtained a more favorable
result absent the error. (Cal. Const., art. VI, § 13; Watson, at p. 836.)
McClure contends the exclusion of evidence of his surprise at being told
a gun was found in his car was prejudicial because “this was a close case as to
the element of knowledge of the presence of the firearm” and the exclusion
deprived him of the “strongest argument against the jury finding beyond a
reasonable doubt that [he] had [such] knowledge.” We disagree.
The case was not close as to whether McClure knew the firearm was in
his car. Knowledge of possession is an essential element of the offense of
possession of a firearm by a felon (People v. Kim (2011) 193 Cal.App.4th 836,
846) and may be proved by circumstantial evidence (People v. Cordova (1979)
97 Cal.App.3d 665, 669–670). Strong circumstantial evidence that McClure
had the requisite knowledge was presented at trial. Montayre found the
firearm inside the locked glove box of McClure’s car. McClure had just been
driving the car, had the key to the glove box, and had no passengers. No
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evidence was presented that anybody else had recently driven or been in the
car or had a key to the glove box. On this record, the inference that McClure
knew about the firearm was compelling.
The strength of the evidence supporting that inference would not have
been substantially diminished by admission of the evidence of McClure’s
surprised reaction to being told a firearm had been discovered in his car.
McClure never clearly denied the firearm was his or that he knew it was in
the car. On this record, absent any evidence that the handgun belonged to
someone else, a reasonable jury likely would have viewed McClure’s
ambiguous and self-serving responses (“‘A firearm?’” and “‘There was?’”) as
feigned. Considering the weakness of the excluded evidence, we conclude it is
not reasonably probable the jury would not have found McClure guilty of
possession of a firearm by a felon had the evidence been admitted. (Watson,
46 Cal.2d at p. 836.)
We are not persuaded to conclude otherwise based on the jury’s
question and acquittal on the charge of possession of an assault weapon.
Questions from the jury or acquittal on some charges may indicate a case was
close. (See, e.g., People v. Diaz (2014) 227 Cal.App.4th 362, 384–385 [jury
asked two questions, requested readback of testimony and arguments,
deliberated for a long time, and reported multiple deadlocks]; People v.
Pearch (1991) 229 Cal.App.3d 1282, 1295 [jury asked multiple questions and
requested readback of multiple witnesses’ testimony]; People v. Perry (1985)
166 Cal.App.3d 924, 933 [jury acquitted defendant on some counts after
deliberating for four days].) Such circumstances do not always indicate a
close case, however, and each case must be evaluated on its own facts. The
clarification the jury requested does not suggest uncertainty about the issue
to which the excluded evidence related, namely, whether McClure knew the
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firearm was in his car. Rather, the request suggests uncertainty about what
knowledge of the characteristics of the firearm was required for conviction of
possession of an assault weapon. The jury would have had no need to
consider that additional knowledge had it determined McClure did not know
the firearm was in his car. The acquittal on the count for possession of an
assault weapon suggests the jury was not convinced beyond a reasonable
doubt that he had the specific knowledge required for conviction of that
offense. It suggests no uncertainty about whether McClure knew the firearm
was in his car, the knowledge required for conviction of possession of a
firearm by a felon.
Finally, we reject McClure’s claim that prejudice is strongly indicated
by the prosecutor’s “exploitation” in closing argument of the trial court’s
erroneous exclusion of evidence of his surprised reaction to being told of the
discovery of the gun in his car. After summarizing evidence tending to show
the firearm belonged to McClure, the prosecutor argued, “There’s nothing to
suggest otherwise.” Under the cases McClure cites, such an argument would
indicate prejudice if “the excluded evidence would have strengthened the
defense considerably” and was “critical to the jury’s proper understanding of
the case” (People v. Minifie (1996) 13 Cal.4th 1055, 1071, 1072) or if the
prosecutor had gone “beyond the bounds of any acceptable conduct” by falsely
arguing there was no evidence of a “very significant” fact that would have
supported the defense even though the prosecutor had seen official
documents that clearly established the fact (People v. Varona (1983)
143 Cal.App.3d 566, 568, 570). No such misconduct occurred at McClure’s
trial, and the excluded evidence was ambiguous and weak. Neither Minifie
nor Varona supports a finding of prejudice.
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III.
We affirm the order suspending imposition of sentence and granting
probation.
CASTILLO, J.
WE CONCUR:
BUCHANAN, Acting P. J.
RUBIN, J.
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