P. v. Lewis

Filed 9/18/07 P. v. Lewis CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant Ronald Harold Lewis was convicted of possessing a sawed-off rifle (count 2) and ammunition (count 3) as a convicted felon. (Pen. Code,^[1] 12021, subd. (a)(1), 12316, subd. (b)(1).) In a bifurcated proceeding, the trial court found true six prior prison term allegations and one strike allegation. ( 667.5, subd. (b), 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) Defendant was sentenced to a total term of 12 years in state prison. He appeals, contending (1) the trial court erred in admitting evidence of uncharged acts pursuant to Evidence Code section 1101, subdivision (b); and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process when the trial court imposed the upper term. We reject these contentions and affirm.

I. PROCEDURAL BACKGROUND AND FACTS

On November 23, 2004, six officers conducted a parole search of defendants current residence^[2]on Colorado Avenue in Riverside. On that date, defendant was a convicted felon.

When the officers knocked and stated their purpose, defendants girlfriend opened the door. Responding to the officers order, defendant, dressed in a pair of boxer shorts, came into the living room. The only people present in the residence were defendant, his girlfriend, and her sleeping baby.

One officer asked defendants girlfriend if defendant kept any guns. She responded that she never saw him with a gun; however, she had heard from others that he had a gun. The girlfriend said a red bag kept on the upper shelf of her master bedroom closet disappeared shortly after she confronted defendant about having a gun. She believed the gun would be in that bag. At trial, defendants girlfriend denied telling the officers that she had seen a red nylon bag in her closet in which she believed defendant may have hidden a gun. Instead, she testified that she kept a red bag containing adult movies in the closet, and a different bag was ultimately found by the officers.

The officers found a loaded, sawed-off .22-caliber rifle inside a red bag, stuffed between golf clubs inside of a golf bag on the backyard patio of the residence. The stock had been sawed off the gun and replaced with a taped socket wrench pistol grip for easier concealment.

Defendants girlfriend became very upset when officers informed her they found the gun. She testified that it was not her gun. She screamed, I cant believe he would put a gun in my sons golf bag knowing that my son plays on the golf team at Ramona High School and he could have brought that bag to school not knowing he had a weapon in there. She said that her mother had given the golf bag and clubs to her son. The girlfriends son said that he never owned a gun and did not know the gun had been hidden inside the golf bag.

When officers confronted defendant about the gun, defendant agreed to waive his Miranda^[3]rights and denied ownership of the gun. He explained that a lot of riffraff had been hanging out at the residence. He said it was not a kids gun, but that he knew he would go down for it because felons cannot have guns and having a gun at his residence would violate his parole terms. When defendants girlfriend was shown the bag in which the gun was found and asked if she recognized it, she said it looked like it could be the bag she had described earlier. She referred to the bag that she claimed disappeared from the master bedroom closet after she confronted defendant about having a gun.

After his arrest, defendant told his girlfriend the gun was legal for an ordinary citizen to own.^[4] He told her that the rightful owner should claim the gun. They discussed a friend of defendant named Darrell Perry, who at one time owed money to defendant.

Over defendants objection, the trial court allowed the testimony of former Fontana Police Officer Michael Imel regarding his traffic stop of defendant on July 22, 1998. Officer Imel testified that he found a loaded .38-caliber handgun under the hood of defendants car next to the battery and wrapped in that days newspaper.

In his defense, defendant offered the testimony of Darrell Perry, a state prisoner and felon. Perry testified that he purchased the .22-caliber rifle at the Van Buren swap meet a few days before defendants arrest. Perry had known defendant for about four or five years and had known his girlfriend for about two or three years. Defendants girlfriends residence was closer to the swap meet than Perrys. Perry stated that the seller of the gun told Perry it was cut. Unsure whether or not it was legal, Perry decided to drive by defendants residence when no one was home and hide the gun in a golf bag in the backyard until he could run its serial numbers through the Internet to determine whether the gun was stolen. However, the police found and confiscated the gun before Perry had a chance to retrieve it. Perry explained that he waited months after the girlfriend told him about defendants arrest for possessing the gun before going to the police because he was scared and did not want to get in trouble.

On cross-examination, Perry testified he never owned a gun before that, and he did not go to the swap meet looking for a gun. Perry acknowledged that the defense investigator might have erroneously reported that Perry stated he spotted the gun in the back of the sellers booth. Perry testified that he spotted the gun in the back of the sellers van. Perry could not recall the name of the seller.

Perry acknowledged that he could have described the gun as having the tip cut off; however, he never described the stock being cut off, the stock being taped up, or that a pistol grip was added to the gun. Perry also acknowledged describing the bag as a rag type of thing at the same interview, and stating the color of the golf bag as gray or brown or something.

Perry admitted that he was not worried about children living in the house where he hid the gun because there were no bullets in the gun. However, when confronted with police testimony describing the 17 rounds they found in the gun, Perry could only say that he did not recall any bullets in it. Perry admitted that he did not write the serial number of the gun down in order to run it through the Internet.

Perry waited almost one year after defendants arrest before telling anyone about his ownership of the gun, even though he had hid it in the golf bag a few days before defendants arrest. Perry admitted telling his story to the defense investigator only after defendants girlfriend talked to him. Perry did not have a felony conviction at the time he came forward to claim ownership of the gun.

II. EVIDENCE CODE SECTION 1101, SUBDIVISION (b)

In an Evidence Code section 402 hearing, the prosecution sought to introduce evidence showing that a gun was found during a search of the car defendant was driving on July 22, 1998. The prosecution argued defendant knew the gun was present in the yard based on the similarities between the two incidents and since an element of section 12021 was knowledge. Defense counsel objected, arguing that the 1998 incident was remote in time, dissimilar to the current offense, and unduly prejudicial to defendant. Overruling defense counsels objections, the trial court found that the incident was not too remote and that the evidence was relevant as to the issue of knowledge and lack of mistake. Although the court found the evidence was prejudicial, it concluded that it was not overly prejudicial, and sanitized it to exclude a statement of defendant and the fact that narcotics were found as well. The jury was instructed pursuant to Judicial Council of California Criminal Jury Instructions, CALCRIM No. 375 (Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.).

On appeal, defendant contends there were insufficient similarities between his current offense and his prior offense for the court to admit evidence of the prior offense under Evidence Code section 1101, subdivision (b). We disagree.

Evidence of a defendants uncharged criminal acts is admissible when it is relevant to prove some fact at issue, such as knowledge, intent and common plan or scheme. (People v. Tapia (1994) 25 Cal.App.4th 984, 1020-1022; People v. Simon (1986) 184 Cal.App.3d 125, 129; Evid. Code,  1101, subd. (b).) We review the trial courts determination that the probative value of the other crime outweighed its prejudicial effect under the abuse of discretion standard. (People v. Tapia, supra, at p. 1021; People v. Cole (2004) 33 Cal.4th 1158, 1195.)

Here, we cannot say that the trial court abused its discretion by admitting the challenged evidence on the disputed material issues of knowledge or common plan and scheme and intent.^[5] (Evid. Code,  1101, subd. (b).) As respondent notes, neither the 1998 incident nor the charged crime was a spontaneous act. Instead, they were planned acts demonstrating a common scheme to hide known, illegally possessed guns from law enforcement. As such, the 1998 incident was relevant on the disputed issues of whether or not defendant knowingly and illegally possessed the gun found hidden in the golf bag in the backyard of his residence. The time period between the prior incident and the current one (six years, 1998 to 2004), the difference in the type of gun found (.38-caliber revolver versus a sawed-off .22-caliber rifle), and the fact that the prior incident involved a gun hidden in a car versus in a golf bag in the backyard, all go to the weight of the evidence rather than its admissibility. (People v. Ewoldt (1994) 7 Cal.4th 380, 393-403, superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.)

Courts have long recognized that if a person acts similarly in similar situations, he probably harbors the same intent in each instance [citations], and that such prior conduct may be relevant circumstantial evidence of the actors most recent intent. (People v. Robbins (1988) 45 Cal.3d 867, 879.) Thus, in order for evidence of uncharged misconduct to be admissible to prove intent or common design or plan, the uncharged misconduct must simply be sufficiently similar. (People v. Kipp (1998) 18 Cal.4th 349, 369-370; People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.)

Here, defendants prior conduct (in 1998) was sufficiently similar to the conduct in the current case to be admissible on the issue of defendants knowledge, common plan or scheme, and intent to illegally possess and hide weapons from law enforcement. Both in 1998 and currently, defendant illegally possessed a gun. In each case, the gun was hidden. In the 1998 offense, the gun was hidden in newspaper under the hood of the car he was driving. In this case, it was hidden in a bag between golf clubs in a golf bag. Thus, the evidence supports the trial courts determination that the two incidents were sufficiently similar, and that the evidence of the prior incident would be probative of defendants knowledge, lack of mistake, common plan or scheme, and intent to possess a weapon. (Evid. Code,  1101.)

Notwithstanding the above, defendant further contends that even if evidence of his prior offense were admissible under Evidence Code section 1101, the court should have excluded it as being unduly prejudicial under Evidence Code section 352. Again, we disagree.

For Evidence Code section 352 purposes, prejudice refers to evidence that uniquely tends to evoke an emotional bias against the defendant without regard to its relevance on material issues. [Citation.] (People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) Although defendant argues that the evidence was prejudicial, clearly, any evidence that supports a finding of guilt is prejudicial. Nonetheless, we cannot say that the evidence of the prior offense here uniquely tended to evoke an emotional bias against defendant. The evidence of the prior offense was no more inflammatory than the evidence of the current offense. Thus, we agree with the trial court that the probative nature of the evidence outweighed its prejudicial effect such that admission was proper.

III. IMPOSITION OF AGGRAVATED SENTENCE

After the jury found defendant guilty of being a convicted felon in possession of a sawed off rifle, the trial court sentenced him to the upper term of three years.^[6] In imposing this sentence, the trial court stated, Now, the question is, do the aggravating − what about the aggravating terms and mitigating terms? According to the probation officer, theres [sic] issues in aggravation such as the many, many prior convictions and no circumstances in mitigation, but theres a circumstance in aggravation which is not mentioned. And thats that either I dont believe for a minute the gun belonged to the kid, and was stored in the teenage kids golf bag; it was either his gun or he was hiding it for someone else, either of which are [sic] plenty enough to convict him, but he put the kid at risk. I dont know what − the kid testified, he seemed like an okay kid but, you know, if that kid had found it, hed gone out golfing and found it, would he have been tempted to use it and accidentally shot themselves [sic] in the foot or worse? He put temptation into a teenagers way. That was a bad thing. And I consider that very much a negative. Go dig a hole; dont put it in the kids golf bag. So you know, thats a thing − something that struck me that was in aggravation.

Relying on the courts finding that defendant put his girlfriends son at risk, and the Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) case, defendant contends the trial court violated his federal constitutional rights to the jurys beyond a reasonable doubt determination of facts used to impose the upper base term. Defendant therefore argues that his sentence on count 2 must be reversed and reduced to the midterm. We reject defendants claim for the following reasons.

To begin with, we note that while the trial court discussed the challenged factors cited by defendant, i.e., putting the son of defendants girlfriend at risk, as a preface to its ultimate upper base term sentence, it also relied upon defendants extensive criminal record. According to the probation report, defendant is a forty-eight year old man. He sustained a total of eight felony cases, since 1987. Based on the defendants prior criminal history and poor performance on parole, he has demonstrated his lack of respect for and ability to comply with the law, as well as the propensity for recidivism.

In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court overruled People v. Black (2005) 35 Cal.4th 1238 (Black I), and held that the middle term in Californias determinate sentencing law was the relevant statutory maximum for the purpose of applying Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Blakely v. Washington(2004) 542 U.S. 296 (Blakely). (Cunningham, supra, at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres) and affirmed in Apprendi: [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] (Cunningham, supra, at p. 860, italics added; see also Apprendi, supra, at pp. 488, 490.) The court explained Californias determinate sentencing law violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.] (Cunningham, supra, at p. 868.)

Defendants assertion that the sentence violates Cunningham is without merit. The rule of Cunningham does not apply to the use of prior convictions to increase the penalty for a crime. (Cunningham, supra, 127 S.Ct. at p. 868; see also Apprendi, supra, 530 U.S. at pp. 488, 490; Blakely, supra, 542 U.S. at p. 301.) The Almendarez-Torres/Apprendi exception is sufficiently broad to encompass all matters ascertainable from the face of the prior judgment of conviction. (People v. McGee (2006) 38 Cal.4th 682, 707-709; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) As the record of sentencing would show whether probation was granted and whether defendant was on probation or parole when the current offense was committed or whether defendants performance on probation or parole was unsatisfactory, we conclude that the exception extends to these facts as well. Defendants sentencing report shows that he has an extensive criminal history as well as a history of repeatedly violating probation and/or parole. It also shows that defendant had served numerous prior prison terms. Hence, imposition of the upper term based on defendants criminal recidivism was proper. (People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 Cal. LEXIS 7604, p. *3] (Black II) [presence of a single proper aggravating factor makes a defendant statutorily eligible for the upper term].)

It is settled that only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Earley (2004) 122 Cal.App.4th 542, 550.) Here, the trial court was free to rely on defendants prior convictions, prior prison terms, prior performance on probation and parole, and recidivism to impose the upper term, as permitted by Cunningham and Blakely. Even if we were to assume error under Cunningham based on the trial courts reference to other aggravating factors, the error was harmless beyond a reasonable doubt (see Chapman v. California (1967) 386 U.S. 18, 24). (Washington v. Recuenco (2006) ___U.S.___, [126 S.Ct. 2546, 2553, 165 L.Ed.2d 466] [[f]ailure to submit a sentencing factor to the jury . . . is not structural error and is subject to harmless error rule]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) As respondent aptly notes, [t]he trial court would have imposed the same term with or without the challenged extraneous discussion.

We therefore reject defendants contention that Cunningham, supra, 127 S.Ct. 856, requires that his sentence be reversed or remanded.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Defendant was living with his girlfriend in her home.

^[3]Miranda v. Arizona (1966) 384 U.S. 436.

^[4] A police sergeant also testified that to the best of his knowledge, a nonfelon could legally possess the gun.

^[5] In his reply brief, defendant argues, knowledge and intent [were] irrelevant to the charge under . . . section 12316, subdivision (b), subsection (1). We disagree. Pursuant to CALCRIM No. 2591, the jury was instructed that in order to prove a violation of section 12316, subdivision (b), subsection (1), the prosecution had to prove that defendant possessed ammunition, knew he possessed the ammunition, and he had previously been convicted of a felony.

^[6] This term was subsequently doubled to six years because of defendants prior strike.