P. v. McAuliffe

Filed 3/20/07 P. v. McAuliffe CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Jeffery Ray McAuliffe terrorized his former girlfriend by leaving threatening telephone messages and firing a weapon outside the house in which she was staying. A jury convicted him of stalking (Pen. Code, 646.9, subd. (a)--count 1; unspecified section references that follow are to the Penal Code), and making criminal threats ( 422--counts 2-5) and found that defendant used a firearm in making the threat alleged in count 5. ( 12022.5, subd. (a)(1)). The jury also convicted defendant of discharging a firearm in a grossly negligent manner ( 246.3--count 6), and being a convicted felon in possession of a firearm ( 12021--count 7), but acquitted him on another count charging possession of methamphetamine. (Health & Saf. Code, 11377.)

Sentenced to an aggregate prison term of 17 years, defendant appeals, challenging the validity of the firearm use enhancement in count 5 and his convictions on the firearm-related offenses in counts 6 and 7. Specifically, he asserts that the court erred in admitting evidence that defendant, when arrested, possessed another firearm, different from that involved in these charges. This evidence, he argues, was irrelevant and prejudiced the jury. We conclude that any error was harmless.

Facts and Proceedings

When defendants efforts to persuade his former girlfriend E.L. to move back in with him were rebuffed, defendant turned to threats. Over the course of several weeks, he left many messages on E.L.s cell phone in which he threatened to shoot her and her young daughter. E.L. knew defendant had access to a .40 caliber gun and she took these threats seriously.

On March 11, 2005, as E.L. was leaving the house where she was staying, her cell phone rang. She saw the call was from defendant and did not answer it. As E.L. went outside, defendant drove down the street and fired shots toward the house. E.L. saw and heard the shots; fortunately, she was not injured. Defendant left a threatening voice message on E.L.s phone, recorded as defendant fired these shots. E.L. subsequently found a .40 caliber shell casing in the gutter of the street.

When officers arrested defendant a few days later, on March 15, 2005, defendant had a .38 handgun in his waistband.

An information charged defendant with multiple offenses, including stalking, four counts of making criminal threats, being a convicted felon in possession of a firearm, and discharging a firearm in a grossly negligent manner. Count 5, one of the criminal threat charges, related to the telephone message defendant left as he fired shots at the house, and included a charged enhancement for personal use of a firearm.

The prosecutor introduced evidence that the firearm-related incidents involved the .40 caliber handgun. Over defendants objection, the prosecutor also introduced a photograph of the .38 caliber gun found in defendants possession when he was arrested.

At trial, defendant acknowledged that the prosecution had met its burden of proof on most of the counts, but challenged others, particularly those that linked him to the use or possession of a firearm.

The jury acquitted defendant on the charge of possessing methamphetamine, but convicted him of the remaining offenses and found true the firearm use enhancement alleged in count 5. Defendant admitted a prior felony conviction, and the trial court sentenced him to an aggregate prison sentence of 17 years.

This appeal followed.

Discussion

Defendants appeal focuses on the admissibility of evidence relating to the .38 caliber gun. He contends that this evidence was irrelevant and prejudicial because the charged offenses were not committed with this weapon. Consequently, he argues, his convictions on counts 6 and 7 must be reversed and the firearm use finding in count 5 must be set aside. We disagree. The error, if any, was harmless.

The prosecutor initially indicated that he was not planning to introduce any evidence relating to the .38 caliber gun. However, when the information was amended to allege that count 1, stalking, occurred between February 19, 2005 and the date of defendants arrest on March 15, 2005, the prosecutor changed his mind. He noted that stalking is defined as the repeated following or willful and malicious harassment of an individual by a person who makes a credible threat with the intent to place that person in reasonable fear for his or her safety. He argued that defendants possession of a .38 gun when arrested helped establish a pattern of threats and demonstrated the credibility of those threats.

Defendant did not seek to exclude this evidence under Evidence Code section 352, but instead argued that the evidence was irrelevant and therefore inadmissible because none of the offenses was committed with a .38 handgun.

The trial court did not comment directly on the relevance of this evidence to the stalking charge, but suggested that the evidence was relevant to the charges of making criminal threats under section 422. The court observed that defendants threats had related to future conduct and until such time as the defendant was arrested, he was obviously able at his choice and specific purpose and specific time of choosing to carry out that threat and . . . the threat would continue to be ongoing. The court noted that section 422 requires a threat to be unequivocal, unconditional, immediate and specific . . . to convey to the victim a gravity of purpose and an immediate . . . [p]rospect of execution[.] The court ruled the evidence relating to the .38 handgun to be admissible because the carrying of the firearm, loaded firearm on the person, even though it was three days or four days after . . . the last threat was made, . . . does and would indicate a gravity of purpose as there to provide that gravity of purpose as well as the possibility of immediate prospect of execution.

On appeal, defendant renews his claim that this evidence should have been excluded. He emphasizes that the offenses were alleged to have been committed with a .40 caliber gun, not a .38, and that the victim was unaware that defendant even had such a gun.

Defendant is correct in asserting that the firearm at issue in counts 5, 6, and 7 was the .40 caliber handgun. Counts 5 and 6 centered on the March 11 incident in which defendant shot a gun toward the house in which E.L. was staying. Count 5 charged defendant with making a criminal threat, and included a firearm use allegation. Count 6 charged defendant with the grossly negligent discharge of a firearm. A .40 caliber casing that matched defendants gun was found in the street, and the prosecutor used this casing to establish defendants guilt on counts 5 and 6.

Count 7 specifically charged defendant of being a convicted felon in possession of a Sig Sauer .40 caliber semi-automatic handgun.

At no point did the prosecutor argue that defendants possession of a .38 gun was relevant to any element of these charged crimes; in fact the prosecutor explicitly told the jury that it could not use the .38 handgun to convict defendant on count 7. Furthermore, the victim testified that she had never seen defendant with any gun other than the .40 caliber.

Evidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons--a fact of no relevant consequence to determination of the guilt or innocence of the defendant. (People v. Henderson (1976) 58 Cal.App.3d 349, 360; accord People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393; People v. Riser (1956) 47 Cal.2d 566, 577.)

In arguing otherwise, the People suggest that the defendants possession of the .38 was relevant to the stalking charge to establish his intent to place [E.L.] in reasonable fear of his apparent ability to carry out the threat, and relevant to the charges of making criminal threats because it tended to establish that defendant intended to place [E.L.] in reasonable fear for her safety and that he had the apparent ability to carry out the threat.

The fact remains, however, that the .38 was not used in the charged offenses and the victim was unaware that defendant even possessed such a weapon. But even if we conclude that the court erred in admitting evidence relating to the .38 handgun, the error was harmless. (See People v. Scheid (1997) 16 Cal.4th 1, 21.)

The focus of the prosecution was squarely on the .40 handgun. Counts 5 and 6 related to the incident on March 11, 2005, in which defendant fired his gun at the house where E.L. was staying. Count 5 charged defendant with violating section 422 and using a personal firearm in the commission of that offense. The prosecution used the .40 casing found in the street to prove this count and the related enhancement. The same incident and the same evidence formed the basis for count 6, the grossly negligent discharge of a firearm. Evidence that defendant had access to a different gun, a .38, had no bearing on these offenses.

The same is true of count 7, which specifically charged defendant with being a convicted felon in possession of a Sig Sauer .40 caliber semi-automatic handgun. In his argument to the jury, the prosecutor emphasized that this count involved the .40 gun, not the .38 in defendants possession when he was arrested.

The evidence of defendants guilt was overwhelming. The victim described seeing defendant shoot the gun, and the jury heard the recording of defendants threatening call to the victim as he fired these shots. There is no likelihood that the jury was confused about which firearm was involved in the charged offenses. Under these circumstances, it is not reasonably probable that the jury would have returned a different result had evidence relating to the .38 caliber gun been excluded. (People v. Scheid, supra, 16 Cal.4th at p. 21.)

Disposition

The judgment is affirmed.

HULL, J.

We concur:

DAVIS, Acting P.J.

CANTIL-SAKAUYE , J.

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