P. v. Castro

Filed 8/18/09 P. v. Castro CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Rand S. Rubin, Judge. Affirmed as modified.

A. William Bartz, 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, Chung L. Mar and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

A jury convicted Tranquilino Castro (appellant) of possession for sale of a controlled substance (heroin) in violation of Health and Safety Code section 11351 (count 5); possession of a rifle by a felon with priors in violation of Penal Code section 12021, subdivision (a)(1)[1] (count 6); possession of a firearm by a felon with a prior in violation of section 12021, subdivision (a)(1) (count 7); and possession of ammunition in violation of section 12316, subdivision (b)(1) (count 8).[2]

The jury found that in the commission of count 5, appellant was personally armed with a firearm within the meaning of section 12022, subdivision (c) and that appellant possessed for sale 14.25 grams or more of a substance containing heroin within the meaning of section 1203.07, subdivision (a)(1). The jury found that all of the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). Appellant admitted the allegations that he had suffered a prior strike under sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and that, at the time of the commission of the offenses, he was released from custody on bail or on his own recognizance in case No. MA029817 within the meaning of section 12022.1.

The trial court struck the prior strike conviction and sentenced appellant to a total term of 11 years in prison. The sentence in count 5 consisted of the upper term of four years along with the low term of two years for the gang allegation, the low term of three years for the firearm allegation, and two years for the out-on-bail allegation. The trial court imposed concurrent midterms of two years along with three-year terms for the gang allegations in each of counts 6, 7, and 8.

Appellant appeals on the ground that the trial court committed prejudicial error by not allowing the defense to present evidence to refute the section 12022, subdivision (c) allegation that he was personally armed with a firearm in the commission of count 5.

FACTS

Prosecution Evidence

On June 20, 2007, at approximately 10:00 p.m., Deputy Robert McGaughey of the Los Angeles County Sheriffs Department was at a mobile home park on East Avenue R in Palmdale. He saw appellant, who lived in Unit No. 128 with his parents, sitting in a wheelchair. The wheelchair was located approximately 10 feet behind a car parked in the driveway. William Enriquez (Enriquez) was sitting in the drivers seat. Enriquez was a documented member of the Playboys gang and had the moniker Little Man. He had a tattoo of a Playboy bunny on the back of his head. Deputy McGaughey found a .357 Magnum revolver under the drivers seat where Enriquez was sitting.

Later that night, Deputy McGaughey, Deputy Wes Clark, and Deputy Chavarria returned to the park and entered appellants mobile home. There were well-worn wheel tracks leading to appellants bedroom, as if a wheelchair had gone in and out of the room many times. On a nightstand, Deputy Clark saw a bag containing five chunks that appeared to be heroin. He did not see any paraphernalia for ingesting the heroin. He found a loaded .22-caliber rifle standing up in appellants closet with a bullet in the chamber and eight bullets in the magazine. He found a .22-caliber revolver inside a clothes basket in the same closet. The guns were located at a distance of five to seven feet from the heroin.

Deputy Clark also saw gang paraphernalia in appellants bedroom. There was a birthday greeting bearing a picture of a Playboy bunny and a person who looked like a shark. Appellants moniker is Shark. There were pictures and messages that indicated appellant was a member of the gang. Police also found numerous 38-caliber live bullets. Subsequent testing showed that a sample taken from the bag on the nightstand contained heroin, and the quantity found weighed 52.3 grams.

Detective William Pickett of the Los Angeles County Sheriffs Department testified as a gang expert. He believed appellant was an active member of the Playboys gang based on the fact that appellant had gang-related tattoos, a gang moniker, and weapons in his home. Appellants Playboys gang tattoos were on his forearm, knuckle, finger, forehead, stomach, and upper back. Appellant associated with Enriquez, who was a documented member of Playboys, and who was found with a weapon. Detective Pickett testified regarding crimes committed by Playboys gang members.

Detective Pickett had training and experience in dealing with heroin. A usable amount is .02 to .05 grams, and 52 grams was a very large quantity. Each gram costs from $80 to $100. There were approximately 2,600 uses in the heroin found. Detective Pickett was of the opinion that appellant possessed the heroin for the purpose of selling it, based on the amount and the lack of paraphernalia for ingesting it. He believed the sales were for the benefit of the Playboys gang. The sales bring income to the gang, help further their criminal conduct, and enhance the status of a gang member. The seller needs weapons to protect the narcotics and to combat the gangs enemies. Detective Pickett had experience with the Playboys gang and knew that their primary activities included the sale of narcotics, possession and use of weapons, and spraying graffiti. The sole purpose of the gang was criminal activity and violence.

On the day he was arrested, appellant was 34 years old, and Enriquez was 23 years old.

Defense Evidence

Malcolm Klein is a retired professor from the University of Southern California who has conducted research on gangs for approximately 45 years. He said there are 80,000 gang members throughout Los Angeles County. Approximately 45,000 of them are Hispanic. The average age of an active gang member in Los Angeles is 19. Klein stated that most gang members just hang around with each other all day and live very boring lives. If two gang members 10 years apart in age are hanging around with each other, it is not an indication that the older one is still active. It is merely consistent with the fact that the older one has enduring neighborhood connections.

DISCUSSION

I. Penal Code Section 12022, Subdivision (c) Allegation

A. Appellants Argument

Appellant contends the trial court prejudicially erred in prohibiting the testimony of a doctor who might have raised a reasonable doubt as to whether appellant, who is a quadriplegic, was able to use the gun found in his room. He asserts that, in order for the jury to find that appellant had the firearm available for use, it had to find that he was able to use the firearm. Appellant was therefore entitled to present the doctors testimony to refute the inference he had the firearm close at hand and available for immediate use to aid in the drug offense.

B.Proceedings Below

The prosecutor filed a motion to exclude, inter alia, evidence regarding appellants ability as a quadriplegic to use the weapons he had on hand. In the motion, the prosecutor argued that the evidence was not relevant and was more prejudicial than probative under Evidence Code section 352.

Defense counsel told the court she had obtained the services of a neurologist, who would testify that appellant was incapable of picking up a gun and firing it. Defense counsel maintained that she was simply asserting it was an issue for the jury to find whether the gun was available for use under the circumstances of this case. The prosecution argued that the statute required only that the gun be available for use, and the ability to use the gun was not an issue in the charge.

The trial court believed it was an issue of law whether the gun was in fact available for use. The fact that a gun was sitting there was enough to intimidate, and it was not an issue of fact for the trier of fact. The court stated that appellants medical condition was irrelevant.

C. Relevant Authority

Only relevant evidence is admissible. (Evid. Code, 350.) Unless prohibited by statute, all relevant evidence is admissible. (Evid. Code, 351.) Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) The trial court has wide discretion in determining the relevance of evidence under the statutory standard. (People v. Kelly (1992) 1 Cal.4th 495, 523.) It is the judges duty to limit the evidence to that which is relevant and material. ( 1044.) Evidence presented on nondisputed issues is irrelevant and therefore inadmissible. (People v. Coleman (1979) 89 Cal.App.3d 312, 321.)

A trial courts discretion to exclude or admit relevant evidence under the criteria of Evidence Code section 352 must not be disturbed on appeal unless there is a showing that the court used its discretion in an arbitrary, capricious or patently absurd manner. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Abuse occurs when the trial court exceeds the bounds of reason, all of the circumstances being considered. (People v. Giminez (1975) 14 Cal.3d 68, 72.)

Section 12022, subdivision (c) provides in pertinent part that [n]otwithstanding the enhancement set forth in subdivision (a), any person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351 . . . of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.

As the jury was instructed, [a] person is armed with a firearm when that person: [] 1. Carries a firearm or has a firearm available for use in either offense or defense; [] AND [] 2. Knows that he or she is carrying the firearm or has it available. (CALCRIM No. 3131.)

D. Evidence Properly Excluded

We believe the expert testimony on appellants limitations as a quadriplegic and how they affected his ability to pick up and point a gun were not relevant to the issue of whether he had a firearm available for use within the meaning of section 12022, subdivision (c). Assuming the testimony to be relevant, we conclude it would have been more prejudicial than probative in this case.

[F]or a defendant to be armed for purposes of section 12022s additional penalties, the defendant need only have a weapon available for use to further the commission of the underlying felony. (People v. Bland (1995) 10 Cal.4th 991, 999 (Bland).) [W]hen the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer: (1) that the defendant knew of the firearms presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that, at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was armed with a firearm in the commission of a felony within the meaning of section 12022. (Id. at p. 995.)

In Bland, police officers searching the defendants house found 17.95 grams of rock cocaine in defendants bedroom closet. (Bland, supra, 10 Cal.4th at p. 995.) They also found a cache of unloaded firearms under the bed. (Ibid.) During the search, defendant was outside in a police car. (Ibid.) The Court of Appeal struck the defendants enhancement under section 12022 because there was no way the defendant could have reached the weapons inside the house. (Bland, supra, at p. 996.)

Contrasting arming with use of a firearm, Bland explained that, [a] defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively. [Citations.] (Bland, supra, 10 Cal.4th at p. 997.) Moreover, [d]rug possession is . . . a continuing offense, one that extends through time. Thus, throughout the entire time the defendant asserts dominion and control over illegal drugs, the defendant is criminally liable for the drug possession. [Citations.] And when, at any time during the commission of the felony drug possession, the defendant can resort to a firearm to further that offense, the defendant satisfies the statutory language of being armed with a firearm in the commission . . . of a felony. [Citation.] (Id. at p. 999, italics added.)

In this case, as in Bland, the evidence showed that appellant kept the guns in his bedroom. They were within five to seven feet of the heroin. Therefore, during commission of the drug possession, he was physically present with both the drugs and the weapon, giving him ready access to the [firearm] to aid his commission of the drug offense. (Bland, supra, 10 Cal.4th at p. 1000.) The Bland court pointed out that the Court of Appeal had focused wrongly on defendants distant physical relationship to the firearm at the time the police entered the house. (Id. at p. 1001.) In appellants case, the rifles location when the police entered the house does not mean that the gun, which was fully loaded, was not more accessible at times during appellants continuing offense of drug sales. Appellant may have kept the gun in a more visible spot during his drug transactions. There was also a handgun, which appellant does not mention, inside a clothes basket in the same closet. The Legislature enacted section 12022 to deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime. (Bland, supra, at p. 996; see also People v. Garcia (1986) 183 Cal.App.3d 335, 350.) In People v. Searle (1989) 213 Cal.App.3d 1091, 1095, 1099, for example, the defendants gun was deemed to be available for use when he sold drugs from his car and kept a gun in a compartment in the back of the car. (Id. at pp. 1095, 1099.)

[A] true finding under section 12022, subdivision (c), requires proof the defendant personally had a firearm at the ready. (People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663.) Under the circumstances of this case, the firearms appellant had in his room were at the ready to further the commission of the underlying felony, whether or not he could pick up the rifle and point and fire it. Therefore, the evidence appellant sought to introduce was not relevant to the issue of whether the guns were available for use, and the trial court did not abuse its discretion.

Moreover, we believe the prejudicial effect of the proposed testimony was far greater than any probative value appellant might seek to extract from it. Evidence Code section 352 provides an exception to the admission of relevant evidence, stating that [t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. A defendanthas a due process right to present evidence material to his defense as long as the evidence is of significant probative value. (People v. Reeder (1978) 82 Cal.App.3d 543, 553.) However, a defendant has no constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be . . . . (Ibid.) In addition, the prosecution is accorded the same protection that the defense enjoys from the use of prejudicial evidence having little probative value. (Id. at p. 552; People v. Love (1977) 75 Cal.App.3d 928, 939.) The proposed evidence would have gone a long way toward creating an emotional bias in favor of appellant, in addition to confusing the issues the jury was to decide.

The evidence appellant sought to introduce was not relevant to determining whether the guns in his bedroom were present and available for his use during the commission of his ongoing crime of drug sales and was unduly prejudicial. The trial court did not abuse its discretion.

II. Court Security Fees

Respondent points out that in the oral pronouncement of judgment, the trial court imposed a court security fee of $20. This fee does not appear in the minute order or the abstract of judgment. Moreover, the trial court should have imposed a court security fee of $20 for each of appellants four convictions.

Section 1465.8, subdivision (a)(1) provides, To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. Section 1465.8 unambiguously requires a trial court to impose a $20 court security fee for each criminal conviction a defendant suffers. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.)

Accordingly, we must modify the judgment to impose four security fees and order the minute order and abstract of judgment to be amended to reflect such fees.

DISPOSITION

The judgment is modified to impose four security fees pursuant to section 1465.8 of the Penal Code. The judgment is otherwise affirmed. The superior court is ordered to amend the minute order and abstract of judgment to reflect a $20 court security fee for each of appellants convictions.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, J.

DOI TODD

We concur:

__________________, P. J.

BOREN

__________________, J.

CHAVEZ

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

[2] The counts were renumbered in the verdict forms as counts 1 through 4.