P. v. Mathews

Filed 8/27/08 P. v. Mathews CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

A jury convicted defendant Tye (aka Tina) Mathews of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1))^[1]and possession of narcotics paraphernalia (Health & Saf. Code, 11364). Mathews admitted that she had six prior felony convictions, including a conviction for robbery, in violation of section 211. The court sentenced Mathews to prison for seven years.

On appeal, Mathews contends that (1) the evidence was insufficient to sustain her conviction for possession of the firearm, and (2) the trial court erred when it denied her mistrial motion because prospective jurors may have seen her in restraints before trial. We conclude that the record contains substantial evidence to support Mathews's conviction for possession of a firearm by a felon, and that the court did not abuse its discretion in denying Mathews's motion for mistrial. We therefore affirm the judgment.

FACTS

On the morning of May 10, 2007, San Diego Police Officers Wesley Mangum and Robert Stinson, along with several drug enforcement officers, went to an apartment building where they believed Mathews lived to arrest her for a parole violation. Mathews had failed to report to her probation officer for almost two years. The officers showed a picture of Mathews to the apartment manager, who identified Mathews under the name of Brenda White McKinney. Mathews also had used this alias to register her 1986 BMW automobile, which police observed parked at the apartment building. According to the apartment manager, Mathews lived alone in unit No. 5.

Mathews's apartment had two doorsan inner wooden door, and an outer security screen that was locked. Because of the location of her apartment and because Mathews was wanted for a parole violation, and was thus considered a "parolee at large," police proceeded with extreme caution. Mangum began to knock on the security screen, while Stinson stood nearby. As he knocked, Mangum asked the occupant or occupants of unit No. 5 to open the door, using a ruse that someone inside had called 911 and officers were there to investigate. A few minutes later, Mangum and Stinson heard a voice yell from inside the apartment that there was no emergency and that the officers should go away. Both officers testified that the yelling from inside grew louder as the officers continued to insist that the occupant or occupants open the front door.

At some point during the commotion, the inner door was opened. Mangum identified the individual behind the security screen as Mathews, who quickly shut the door. Mathews continued to yell at the officers that she was not going to unlock the door, and that they should go away. She also yelled that she intended to complain to the officers' supervisors if they did not leave.

As Mangum continued to knock on the door, another officer located the apartment manager and obtained a key to Mathews's apartment. When Mangum entered the apartment, he found Mathews in the doorway to her bedroom, approximately 15 feet from the front door. Mathews now had green face cream on her face, and was wrapped in a towel. Mangum immediately put handcuffs on Mathews. Stinson entered the apartment to help with the arrest and to determine whether there was anyone else inside. As he did so, Stinson saw in plain view a loaded magazine clip on the bed. Mangum asked Mathews where she kept the gun. Mathews initially denied having a gun in her apartment, but as Stinson continued to search her apartment, she admitted that the gun was in the left dresser drawer.

After handcuffing Mathews, Mangum assisted Stinson in searching Mathews's apartment. Mangum found two glass pipes used for narcotics, and a wallet that included identification for Brenda White McKinney, with Mathews's picture on it. The officers found no other person inside the apartment, and no one came to the apartment claiming to live there while the officers were there.

At trial, Mathews said that when the officers began knocking on her front door, she was giving herself a "facial and scrub." She went to the window and saw three officers outside. When she asked what they wanted, the officers told her that someone had placed a 911 call from inside the apartment, and said that they wanted her to open the door. Mathews testified that because she had not placed a 911 call, she ignored the officers' request and "continued doing what I was doing with my skin and my face."

Mathews testified that she went back to the front door because the officers were "getting on [her] nerves." She opened the wood door only, and yelled at the officers to leave her alone or she would complain to their supervisors. Because she had not made the 911 call, Mathews closed the door and went back to the bathroom to continue her facial, which included putting a "mask" on her face.

Mathews testified that on the day she was arrested, her boyfriend, Angelo Levon Taylor, was staying in her apartment. Mathews claimed that Taylor began staying with her about five days before her arrest, that they had been dating for about eight months, and that when he moved in, he had brought a garment bag and two duffel bags. Inside one of the duffel bags were the gun and magazine clip which belonged to Taylor's father, who had recently passed away. Mathews told Taylor that she did not like guns and that she did not want a gun in her house. According to Mathews, Taylor said he would take the gun to his mother's house.

Mathews testified that at some point while police were knocking on her front door that morning, she realized that they were there to arrest her because she was a parolee at large. She said that she quickly checked Taylor's duffel bag, which was in her closet, and found his gun and magazine clip. She "took the magazine and put it on the bed and threw the gun in the drawer" of her nightstand. When police came into the apartment, Mathews testified she told them where they could find the gun. Mathews said that she did not tell the officers that the gun belonged to her boyfriend because they did not ask. She also said Taylor was not in the apartment when police arrived because he had left for work that morning at about 4:30 a.m.

On cross-examination, Mathews testified that she did not know the whereabouts of her boyfriend, and denied having made the statement to police while in custody, "[T]hat's what I get for letting someone keep a gun in my house." She testified that what she in fact said was, "That's what I get for having someone stay with me." She further testified that she used one of the glass pipes to smoke "weed," although she admitted that glass pipes like the ones police found in her apartment are used for smoking narcotics.

On redirect, Stinson testified that when Mangum asked Mathews if she had a gun, she responded, "What gun? I don't have a gun." She then changed her story and told officers where to find the gun. Stinson testified that while he was driving Mathews to the jail, she asked the officer what charges she would face. After he told her, she spontaneously stated, among other things, that she "would never carry a gun," and that is what she "get[s] for letting someone keep it there."

DISCUSSION

I.

There Is Substantial Evidence To Support Mathews's Conviction for Possession of a Firearm by a Felon.

Mathews contends that the record is devoid of substantial evidence to support her conviction of possession of a firearm by a felon because she provided a "plausible explanation" regarding why the gun was in her apartment and why she did not know it was there before police arrived at the apartment. Mathews maintains that because the People neither rebutted that testimony nor provided any incriminating statement or circumstance in response, other than to show that the gun was in her apartment, her conviction must be reversed. We reject this contention.

A. Standard of Review.

To determine whether there is sufficient evidence to support a conviction, we review the record in the light most favorable to the judgment and determine whether the record contains evidence that is "reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolden (2002) 29 Cal.4th 515, 553; People v. Barnes (1986) 42 Cal.3d 284, 303.) The reviewing court must "draw all reasonable inferences in support of the judgment." (People v. Wader (1993) 5 Cal.4th610, 640.) Reversal on the ground of insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

" ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 933; see also People v. Redmond, supra, 71 Cal.2d at p. 755.) A reviewing court "must begin with the presumption that the evidence . . . was sufficient, and the defendant bears the burden of convincing [the court] otherwise." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

B. Possession of a Firearm by a Felon.

The elements of a felon in possession of a firearm are a prior conviction for a felony offense, and ownership, possession, custody or control of a firearm. ( 12021, subd. (a)(1);^[2]see also People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Mathews does not dispute that she is a convicted felon. The only issue is whether she was in "possession, custody or control of a firearm" for purposes of section 12021, subdivision (a)(1).

To establish the element of possession, it is sufficient to demonstrate that the defendant had either actual or constructive possession of the firearm. (People v. Cordova (1979) 97 Cal.App.3d 665, 670.) "Actual possession occurs when the defendant exercises direct physical dominion and control over the item. . . . Constructive possession does not require direct physical control over the item 'but does require that a person knowingly exercise control or right to control a thing, either directly or through another person or persons.' [Citation.]" (People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 861.) Constructive possession occurs when contraband is found in a place to which the defendant and others have access and over which none has exclusive control. (People v. Hutchinson (1969) 71 Cal.2d 342, 345.) However, mere presence at the place where contraband is found, or proof of opportunity of access to a place where contraband is found, without more, will not support a finding of possession. (Id. at p. 346; see also People v. Redrick (1961) 55 Cal.2d 282, 285.)

We conclude that there is sufficient evidence in the record to support the jury's finding that Mathews was a felon in possession of a firearm under section 12021, subdivision (a)(1). Mathews admitted that she knew of the presence of the gun in her apartment at least five days before her arrest. There is also evidence in the record to support the finding that she knew the gun was in her apartment when she placed it in her nightstand while police were outside her apartment asking her to open the door. The evidence in the record further supports the findings that Mathews had lived alone in the apartment for almost two years.

The fact that Mathews provided a "plausible explanation" as to why the gun was in her apartment, and professed a lack of knowledge of its presence, does not change the result. The jury was not required to accept Mathews's explanation that she had a boyfriend; that the gun belonged to her boyfriend; that he brought the gun when he came to stay with her five days before her arrest; or that Mathews believed that her boyfriend had removed the gun from the apartment. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206 ["it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends"]; see also People v. Llamas (1997) 51 Cal.App.4th 1729, 1743 [rejecting defendant's argument that the jury was required to accept wife's testimony that a gun found under the hood of a car belonged to her, and not defendant].)

The jury heard all the testimony, and considered the circumstances surrounding Mathews's arrest and her explanation as to how the gun came to be in her apartment. The jury was entitled to believe or disbelieve her testimony. (See People v. Llamas, supra, 51 Cal.4th at p. 1743.) The record contains substantial evidence to support the jury's findings that Mathews had knowledge of the presence of the gun in her apartment and that she exercised control over it.^[3]

II.

The Court Properly Denied Mathews's Motion for a Mistrial.

Mathews next contends that the trial court abused its discretion in denying her motion for a mistrial on the ground that prospective jurors may have seen her in restraints when deputies were bringing her into the courtroom before the start of the trial. We reject this contention.

As the People correctly note, there is no evidence in the record showing that any prospective juror actually saw Mathews in restraints as deputies escorted her to the courtroom from the holding tank. This lack of evidence, alone, defeats Mathews's claim of error. (See People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584 ["We have consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury"].)

Even assuming that jurors saw Mathews in restraints, as she contends, the result would be the same. "Prejudicial error does not occur simply because the defendant 'was seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors or veniremen.' " (People v. Tuilaepa, supra, 4 Cal.4th at p. 584, quoting People v. Duran (1976) 16 Cal.3d 282, 287, fn. 2.) Moreover, the jury knew that Mathews was a parolee at large and that she had previously been convicted of several felonies. Thus, even if prospective jurors briefly saw deputies escorting Mathews in shackles on a single occasion, there would be no prejudicial error.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

McDONALD, J.

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

^[2] Section 12021, subdivision (a)(1) provides in 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 his or her possession or under his or her custody or control any firearm is guilty of a felony."

^[3] Because the record contains sufficient evidence to support the jury's findings that Mathews had knowledge of the presence of the gun and exercised control over it, we conclude that the cases on which Mathews relies, which hold that the mere presence of contraband in a residence, without more, is insufficient to support a conviction, are inapposite. (See, e.g., People v. Savage (1954) 128 Cal.App.2d 123, 125 [defendant's conviction for possession of marijuana reversed because of the lack of evidence that defendant had any knowledge of the presence of the drugs found in his couch]; People v. Antista (1954) 129 Cal.App.2d 47 [reversal of defendant's conviction for marijuana because of the lack of evidence defendant knew of the drug's presence found in his home].)