P. v. Moore

Filed 12/4/07 P. v. Moore CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County, William R. Chidsey, Jr., Judge. Affirmed in part; reversed in part and remanded with directions.

Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

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Although charged with four serious felonies that included attempted murder,^[1] appellant was convicted of a sole count of possession of ammunition in violation of Penal Code section 12316, subdivision (b)(1).^[2] The jury also found true the allegation that this offense was committed for the benefit of a criminal gang with the intent to promote and assist criminal conduct by gang members (hereafter referred to as the gang enhancement). The trial court found as an additional enhancement that appellant was on bail when he committed the offense of which he was found guilty (bail enhancement). Appellant admitted that he was convicted of grand theft in 1996.

Appellant was sentenced to the middle term of two years, an additional three years for the gang enhancement, two years on the bail enhancement and one additional year for the prior felony conviction for grand theft, for a total of eight years.

Appellant contends that there is insufficient evidence that he possessed ammunition and to support the jurys finding on the gang enhancement. He also contends that the trial court did not obtain a valid waiver of appellants rights to a trial on the prior felony conviction and that he did not receive the correct number of presentence credits. We agree with appellant that there is no evidence to support the jurys finding on the gang enhancement but disagree with the balance of his contentions, save the matter of presentence credit. We affirm the judgment and remand with directions to correct the abstract of judgment to reflect our decision on the gang enhancement and with further directions to recalculate the presentence credit.

FACTS

The charges of which appellant was exonerated arose out of an alleged request made to one Perry Smith to contribute funds toward appellants bail in a prior unrelated case. Smith refused and appellant then allegedly confronted Smith and fired several shots at him. Appellants defense was one of alibi, i.e., that at the time of the shooting he was at his own home, barbecuing for his daughters slumber party.

In the course of investigating Smiths claim that appellant had assaulted him, Los Angeles County Sheriffs Department Detective Jeff Pohl executed a search warrant that led to the discovery of the ammunition upon which appellants conviction is based.

Pohl described the locations of the search as follows: There were two locations. I dont recall right now offhand. It was on Loness, theyre both on Loness, one on the north side and on the south side, both locations the defendant lived at or was living at at the time. Pohl went on to state that one of these two locations was 14429 Loness Avenue and that he searched that location. The following transpired: Q [by the district attorney] What did you recover? [] A [Pohl] We recovered two live .40 caliber ammunition rounds. [] Q Where did you recover these rounds from? [] A That was in the defendants bedroom closet. [] Q How did you know it was his bedroom closet? [] A From talking to the defendants wife. [] MR. PETERS [defense counsel]: I move to strike that thats hearsay [sic]. [] THE COURT: Sustained. [] . . . [] Q [by the district attorney] Was the defendant present in the location when you served the warrant? [] A The defendant was present, yes . . . [] . . . [] Q Where in the bedroom exactly did you recover these two rounds? [] A It was in the bedroom closet on the floor. [] Q Were they just laying [sic] about? [] A Yes. A little later, while producing two rounds of ammunition, the district attorney posed this question: Are those the two rounds that you recovered from the closet floor in the defendants residence? [] A Yes. There was no objection to this question.

The only other testimony relevant to this charge came during the testimony of Smith when he was being questioned by the district attorney: Q And do you know the defendant lives on Loness? [] A He had two locations on Loness where â€‘‑ his house and then his familys house down the street. [] Q What do you mean his house and his familys house? [] A I guess his mother or his grandmother or somebody lives on Loness. [] Q Okay. [] A On the south side of the street, and he lives closer to the north end of the street, closer to 144th.

Although the trial transcript is nearly 200 pages long, the foregoing represents the totality of the evidence on which appellants conviction is based. We discuss the evidence relating to the gang enhancement when we take up appellants contention on this issue.

DISCUSSION

1. The Jury Could Reasonably Conclude That Appellant Knowingly Had Ammunition in His Custody

The test to be applied to determine whether the evidence is sufficient to support the conviction is well known and we set it forth in the margin.^[3] Two aspects of that rule are particularly applicable to this appeal. They are, first, that the appellate court presumes in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence; and, second, that if the evidence reasonably justifies the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (See fn. 3, ante.)

It is undisputed that appellant lived in one of two houses on Loness where the search warrants were executed. Beginning with this premise, there were two facts from which the jury could reasonably conclude that the ammunition was found in the house in which appellant lived. First, when Pohl was asked: Are those the two rounds that you recovered from the closet floor in the defendants residence? the answer was yes. Second, according to Pohl, appellant was present during this search. While the latter point is not self-evident since Pohl was asked whether appellant was present in the location when you served the warrant, the context of the question indicates that the reference was to the search that led to the ammunition.

It is not disputed that the ammunition was found in a bedroom closet,^[4]as opposed to appellants bedroom closet. In this connection, we reject respondents contention that the hearsay objection^[5]was not directed at the underlying fact that Detective Pohl found the ammunition in appellants closet. Instead, the only evidence that was stricken was the statement that appellants wife told the detective. Obviously, the extrajudicial statement that was excluded was the wifes statement that it was appellants closet; it was that statement that was the hearsay statement. Respondents theory that the statement that was excluded was the statement that appellants wife told the detective makes no sense at all; that the wife spoke to the detective is a fact, not a statement.

In sum, there was evidence from which the jury could conclude that the ammunition was found in a bedroom closet in appellants house.

Given these facts, it was reasonable for the jury to conclude that appellant knowingly had the ammunition in his constructive possession. 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. (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) 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]. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) It was reasonable to conclude that appellant had dominion and control over a bedroom closet and its contents, including the ammunition, in his own house. While a contrary finding may have been reasonable, it is not for us to overrule a factual determination by the jury when it rests on reasonable inferences drawn from the evidence. The same cannot be said of the jurys finding on the gang enhancement.

2. The Evidence Is Insufficient To Support the Finding on the Gang Enhancement

Appellant contends that the evidence is insufficient to show that he committed the offense with the specific intent to promote, further, or assist in any criminal conduct by gang members, as required by Penal Code section 186.22, subdivision (b)(1).^[6] Appellant points out that, while Detective Pohl testified that the alleged shooting benefited the gang, Pohl did not explain why appellants possession of ammunition was for the benefit of the gang or with the intent to promote the gang. . . . [] . . . [] . . . There was simply no evidence presented that appellant had any reason to expect to use the ammunition in a gang-related offense.

Respondent points to evidence that appellant was a member of the Campanella Piru gang and that he regularly carried a gun for protection against rivals. Specifically, Smith testified that it was not unusual for gang members to carry guns. When asked why, Smith answered: A Protection. [] Q [by the district attorney] Against rivals? [] A Rivals or in the neighborhood ‑‑ you might have people in the neighborhood you dont get along with.

The felony must have been committed with with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Pen. Code,  186.22, subd. (b)(1).) There are four components to this: first, specific intent; second, promoting, furthering or assisting; third, criminal conduct; and fourth, by gang members. The evidence in this case fails in every one of these components. There is no evidence that appellant specifically intended, by means of the ammunition, to promote criminal conduct by gang members. Evidence that appellant carried a gun to protect himself does not go to any one of these four elements.

This is not even a case where there are weak inferences and hypotheticals [that] show the minor had a gang-related purpose (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.).) for keeping the ammunition. This is one of those unusual cases when there is no evidence that supports the jurys finding.

Respondents reliance on the fact of gang membership is misplaced. As the court noted in Frank S., where the conviction was for carrying a concealed dirk or dagger, gang membership alone does not prove a specific intent to use the knife to promote, further, or assist in criminal conduct by gang members. (Frank S., supra, 141 Cal.App.4th at p. 1199.) And carrying a gun for self-protection, the other fact on which respondent relies, does not speak to any of the four elements that we have identified. Even if it could be said that appellant carried the gun for aggressive purposes, the evidence would still fall short in that this does not show that he intended to promote criminal conduct by gang members. To reiterate, there must be evidence on this score and in this case there is none.

Accordingly, we reverse the finding that appellant had custody and control of the ammunition with the specific intent to promote, further, or assist in criminal conduct by gang members.

3. Appellant Waived His Right to a Jury Trial on the Prior Conviction

Appellant contends that his waiver of a jury trial on the fact of his prior conviction was not valid. We agree with respondent that this contention is without merit.

Appellants prior conviction for grand theft in 1996 was the subject of two separate hearings outside the presence of the jury. The first hearing took place during the trial. The setting of the hearing was that the prosecution was required to prove that appellant was a felon in possession of a firearm, which was one of the charges of which appellant eventually was found not guilty. During this hearing, the trial court advised appellant that he had a right to have a jury decide whether he had been convicted of grand theft, a felony, and that he had a right to have the prosecution prove this fact beyond a reasonable doubt. Appellant indicated he understood his rights and he admitted the prior conviction.

The second hearing took place right after the jury returned its verdict, and before the jury was excused. This time the settling of the hearing was the allegation, made under Penal Code section 667.5, that appellant did not remain free of prison custody for five years after he completed his term for the grand theft prior conviction. The trial court again informed appellant that he had a right to a jury trial and that [you] have basically the same rights that you have during the course of a trial. You can require the People to prove their case beyond a reasonable doubt. After explaining how the prior conviction would be proven, the trial court went on to state that appellant had the right to cross-examine witnesses, the right to present evidence and to use the subpoena powers of the court. Appellant indicated that he understood his rights and he waived his right to a jury trial on the prior.

Appellant contends that his waiver was ineffective because the court failed to advise him of his right against self-incrimination. Appellant also contends that he never actually admitted that he served a prison term for the grand theft offense.

The observation of the court in People v. Mosby (2004) 33 Cal.4th 353, 364, applies to appellants contention about the right to self-incrimination: Here, defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. In this case, appellant did not take the stand; his alibi defense was made out by a friend and neighbor whose daughter attended the slumber party where appellant was also present as the chef. Thus, appellant, just as the defendant in Mosby, was well aware of his right against self-incrimination. As Mosby goes on to hold, we are to consider the totality of the circumstances in determining whether appellant understood his rights before he waived his right to a jury trial on the prior conviction. (Id. at p. 365.) We are satisfied that the circumstances show that appellant was well aware of his rights before he waived his right to a jury trial, being advised of them not once but on two separate occasions.

As respondent points out, there is no merit to the contention that appellant never admitted that he served a prison term since, during the first hearing we have described, the court asked counsel whether, for purposes of Penal Code section 667.5, appellant was going to admit that he was not free from custody for the statutory period. Counsel indicated that appellant would admit this fact, which is also shown by the probation report.

4. The Trial Court Should Recalculate Presentence Credit

Appellant received 183 days presentence credit; he claims he is entitled to 184 days. Although respondent claims that Penal Code section 1237.1 bars this claim because it was not presented in the trial court, respondent also concedes that this applies only if the only issue on appeal is presentence credit. (People v. Acosta (1996) 48 Cal.App.4th 411, 427.) We agree with the concession and note that respondent apparently concedes that 184 days is the correct number. In any event, since we remand the case for a correction of the abstract of judgment to reflect our decision that reversed the gang enhancement, we direct the trial court to recalculate the presentence credit awarded.

DISPOSITION

The case is reversed in part and remanded with directions to enter a new sentence of five years to be served in state prison and with further directions to recalculate the presentence credit. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] The other three felonies charged were shooting at an occupied vehicle, assault with a firearm and possession of a firearm by a felon.

^[2] Penal Code section 12316, subdivision (b)(1) provides: No person prohibited from owning or possessing a firearm under Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition.

^[3] 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 â€‘‑ evidence that is reasonable, credible and of solid value â€‘‑ 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.] Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)  If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]  (People v. Thomas (1992) 2 Cal.4th 489, 514.)

^[4] Q Where in the bedroom exactly did you recover these two rounds? [] A It was in the bedroom closet on the floor.

^[5] Q How did you know it was his bedroom closet? [] A From talking to the defendants wife. [] MR. PETERS [defense counsel]: I move to strike that thats hearsay [sic]. [] THE COURT: Sustained.

^[6] In relevant part, Penal Code section 186.22, subdivision (b)(1) provides that any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . .