People v. White CA3 ( 2021 )

Filed 12/30/21 P. v. White 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent, C089037
v. (Super. Ct. No. CRF-16-3387)
APONDO LATRAIL WHITE, JR.,
Defendant and Appellant.
Police stopped a vehicle in which defendant Apondo Latrail White, Jr., was a
passenger and discovered heroin, cocaine and a handgun. A jury convicted defendant of
possession of cocaine and heroin while armed with a loaded firearm, transportation of
cocaine and heroin, possession of cocaine and heroin for sale, and possession of a firearm
by a felon. The trial court sentenced defendant to 10 years eight months in prison.
1
Defendant now challenges the police stop, the firearm-related charges and
enhancements, and the admission of evidence of his prior convictions. We will modify
the judgment to stay, under Penal Code section 654,1 the sentence imposed on defendant
for being a felon in possession of a firearm under section 29800, and affirm the judgment
as modified.
BACKGROUND
A
A security guard working the graveyard shift at Capitol Yards, an apartment
complex in West Sacramento, was approached by a resident who said a Prius had parked
in a space reserved for individuals with disabilities and four or five people had gotten out
of the car. The guard checked on the car and saw that it did not have a disability placard
or resident sticker. Per policy, the guard called to have the car towed away. When the
tow truck arrived, the guard noticed some individuals in the courtyard by the swimming
pool.
When the tow truck driver had loaded up the vehicle, the guard noticed the
individuals were wandering around the complex. He called the police because the
individuals were hanging out and did not appear to be residents. The police dispatcher
asked for the license plate number of the towed car and the guard gave it to her.
Gregory Lang, a West Sacramento motorcycle officer, received a dispatch that a
security guard from the Capitol Yards apartment complex reported that a car parked there
was towed and the license plate came back as an armed and dangerous vehicle out of
Stockton. When Officer Lang got there, a security guard walking out of the parking lot
was pointing at two black males on the sidewalk. Officer Lang took the security guard to
be the reporting party. Officer Lang saw a car drive out of a trailer park and stop at the
1 Undesignated statutory references are to the Penal Code.
2
curb. He watched the two males get into the car. One got in the front passenger seat and
the other got in the backseat behind the driver. Officer Lang was radioing his
observations to responding units. Another officer in a patrol car arrived with his lights
activated. The officers conducted a traffic stop at gunpoint.
Both officers were yelling instructions to the occupants to remain stopped and
show their hands, while other officers were arriving. Officer Lang noticed that the
passenger in the back seat put his right hand above his head and dropped his left hand
behind the driver’s seat like he was trying to conceal something. He advised other
officers arriving on the scene that the passenger in the back might be concealing
something. This passenger -- J.O., a juvenile -- then slowly raised his left hand over his
head.
Officers ordered the occupants out of the vehicle. Officer Lang looked to see if
anything had been concealed by the passenger in the back and saw a handgun on the
floorboard behind the right front passenger seat.
Detective Jerry Watson retrieved a silver/black Colt 1911-style nine-millimeter
firearm that had been partially tucked under the front passenger seat. The magazine in
the butt of the gun was loaded with seven rounds but the chamber was empty.
In the door well on the front passenger side, Detective Watson found a small bag
containing a brown substance. It appeared to be tar heroin. In the glove box, there was a
baggie containing a white substance that appeared to be cocaine. Behind that bag were
numerous little baggies containing a brown substance that appeared to be tar heroin, as
well as a box of sandwich baggies. The parties stipulated that the brown substance was
heroin and the white substance was cocaine.
The driver of the car was Charmeya Petty. She was driving a four-door, gray
Honda Civic that she owned. Petty drove from work to pick up defendant in downtown
Stockton. She saw defendant outside with some people, but just defendant and another
individual got into her car. Defendant said he needed Petty to take him to Sacramento.
3
Defendant told Petty to drop them off. About 15 minutes later, defendant called
and asked her to pick them up. Petty went back and saw defendant and the other person
walking towards her car. Defendant got in the passenger seat and the other person got in
the back seat behind defendant. Petty was leaving when the police appeared with lights
and sirens. The police were shouting to put their hands up and she did. Petty noticed
that the person in the back was “shuffling, like he was looking for something on the
floor . . . .” Defendant had his hands up. The police asked them to get out of the car.
Defendant got out first followed by the individual in the back and then Petty. Petty
testified she did not know how drugs or a gun had been placed in the car.
An officer searched defendant and found $160 in cash in his front and back
pockets. There were three twenties, five tens, nine fives, and five ones.
Later, police officers drove the guard in a patrol car to the scene and asked if any
of the individuals looked familiar. The guard testified that he recognized one of them
from the apartment complex. An officer later testified that the guard identified two
males.
B
The prosecution introduced evidence of three prior incidents involving defendant.
A Stockton police officer testified that in 2009 the officer was engaged in
surveillance of an area known for drug dealing when he observed defendant. Defendant
shook hands with a homeless person, who then put his hand in his pocket, indicating to
the officer that illegal activity was occurring. The officer approached defendant who
agreed to be searched. The officer asked defendant if he had anything in his mouth.
When defendant lifted and lowered his tongue quickly, the officer saw a piece of plastic
under his tongue. The officer asked defendant to open his mouth again and defendant
tried to swallow baggies of narcotics. Defendant eventually spit out 14 baggies that the
officer recognized as containing cocaine. Defendant stated that the drugs were his but
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later admitted that he was holding them for someone else. Defendant said he initially had
25 bags under his tongue. Defendant was 16 years old.
A Manteca police officer testified that in 2010 he stopped a car that defendant was
driving because it did not have a front license plate. The officer searched the car and
found a baggie of marijuana, a bag of pills that defendant admitted were Vicodin, and a
Mentos container with six packages of rock cocaine. Pursuant to a search warrant, police
searched defendant’s residence and found a handgun, a hundred pills similar to those
found in the traffic stop, and packages of cocaine. Defendant was arrested for sale of the
pills and cocaine.
In 2014, another Manteca police officer testified that he stopped a car in which
defendant was a passenger after it rolled through a red light. The officer recognized
defendant and went back to the patrol car to determine if there were warrants for
defendant’s arrest. Defendant fled the car on foot. The officer pursued and saw
defendant stop by some bushes. The officer found a handgun in the bushes and a
magazine in some other bushes further on. Defendant was arrested for possession of a
stolen firearm, possession of a loaded firearm in public, and being a felon in possession
of a firearm.
C
Detective Gary Hallenbeck with the Yolo County Sheriff’s Department testified as
an expert on whether cocaine or heroin was possessed for sale or personal use and the
methodology for selling those drugs. Detective Hallenbeck said drug dealers use
juveniles to help sell drugs because they are impressionable and take direction, and if a
juvenile is caught, the law is less strict than for an adult and a juvenile potentially will not
go to prison for an extended period of time. Drug dealers commonly bring along another
person as a bodyguard, who more than likely has a gun. A drug dealer involved in a
transaction will know that his partner has a gun to protect him.
5
A phone that belonged to defendant had been seized and searched pursuant to a
warrant. When shown a photograph taken from defendant’s cell phone depicting
handguns, Detective Hallenbeck testified that the photograph was consistent with
someone selling drugs, as it served as a warning to others.
D
The jury convicted defendant of possession of cocaine and heroin while armed
with a loaded firearm (counts 1 and 4, Health & Saf. Code, § 11370.1, subd. (a)),
transportation of cocaine and heroin (counts 2 and 5, Health & Saf. Code, § 11352,
subd. (a)), possession of cocaine and heroin for sale (counts 3 and 6, Health & Saf. Code,
§ 11351), and possession of a firearm by a felon (count 7, § 29800, subd. (a)(1)). The
jury found true allegations that defendant was personally armed with a firearm in the
commission of the offenses charged in counts 2, 3, 5 and 6 (§ 12022, subdivision (c)).
The trial court sentenced defendant to an aggregate prison term of 10 years
eight months, consisting of the following: the middle term of four years on count 2 plus
four years for the firearm enhancement, and one-third the middle term of 16 months on
count 5 plus 16 months for the firearm enhancement. The trial court imposed a two-year
concurrent sentence on count 7 and stayed sentences on the other counts under
section 654.
DISCUSSION
I
The trial court denied defendant’s motion to suppress the search of Petty’s car.
Defendant argues the trial court erred in finding that the information available to the
officers was sufficient to justify the vehicle stop.
Officer Lang testified at the hearing on the motion to suppress.
While working traffic control for a River Cats game, Officer Lang overheard radio
traffic in which police dispatch “advised that there were two suspicious males exiting the
parking area of 777 5th Street, I believe it is called Capitol Place Apartments, that they
6
were walking out towards 5th Street. They had been seen around a stolen vehicle that
was listed as armed and dangerous.”
Officer Lang was a block away, so he responded to the call. As he turned and
went towards that location, Officer Lang heard dispatch “give a description of these two
suspicious subjects and state that the security guard for the apartment complex was
following them out to 5th Street.” The dispatcher advised that “the two subjects were
described as male, black male adults, late teens, early 20s.” The information Officer
Lang had regarding their involvement in criminal activity was “that they were seen in or
about the stolen vehicle that was in the parking area of the apartment complex” and there
was a “flag caution . . . in the stolen vehicle system, CLETS that the vehicle is listed as
armed and dangerous.” The vehicle was listed “as taken in a carjacking with a firearm.”
Officer Lang “observed a security guard on the sidewalk at the . . . south driveway
of the apartment complex parking lot, and he was flagging me down or rather pointing
me westbound on West Capitol Avenue.” Officer Lang knew he was the security guard
because of his uniform. Officer Lang looked in the direction the guard was pointing and
“saw two black male adults matching the age, description given walking westbound on
the sidewalk.” Officer Lang radioed dispatch to advise other responding units that he
“had eyes on the possible suspicious subjects and the security guard was pointing me
towards their location.”
Officer Lang was waiting for other units to arrive when he saw the suspects get in
another vehicle that was exiting a former trailer park on West Capitol Avenue. This
vehicle was a silver, four-door sedan driven by a black female adult. One of the males
got in the front passenger seat and the other got in the left rear passenger seat behind the
driver. The car started to roll forward when another officer arrived in a patrol car with
emergency lights on and positioned his car to alert them that he was stopping them.
Officer Lang assisted the other officer in conducting a “high risk traffic stop,” meaning
both officers drew their weapons based on the information received that “it was
7
considered an armed and dangerous stolen vehicle that was taken in a carjacking . . . .”
Once the occupants of the car had been ordered out and the car cleared by a police dog,
Officer Lang saw a handgun on the floorboard in the rear behind the right front passenger
seat.
On cross-examination, Officer Lang testified that he saw the subjects walking
swiftly but not running away from the apartment complex and he never saw them violate
any law.
The trial court denied the motion to suppress, reasoning: “Here, we have the
security guard who says, suspicious people, and also said the car was notable and that it
didn’t belong there and ended up getting towed, and dispatch showed that it was the
subject of a carjacking. ¶ So people behaving in a manner that raises some suspicion in
the security guard, near that car . . . .” The trial court said the arriving officers were
directed to the individuals and it was appropriate to tell the suspects to stop for an
investigation. The trial court said the stop occurred in a car, the officers saw a weapon on
the floorboard of the car, and the search incident to the detention was appropriate as a
result of all the information available to the officers.
“ ‘In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to
that court’s factual findings, express or implied, if they are supported by substantial
evidence. [Citation.] We exercise our independent judgment in determining whether, on
the facts presented, the search or seizure was reasonable under the Fourth Amendment.’
[Citation.]” (People v. Silveria & Travis (2020) 10 Cal.5th 195, 232 (Silveria).)
“ ‘[T]he Fourth Amendment permits an officer to initiate a brief investigative
traffic stop when he has “a particularized and objective basis for suspecting the particular
person stopped of criminal activity.” [Citations.] “Although a mere ‘hunch’ does not
create reasonable suspicion, the level of suspicion the standard requires is considerably
less than proof of wrongdoing by a preponderance of the evidence, and obviously less
than is necessary for probable cause.” [Citations.] [¶] Because it is a “less demanding”
8
standard, “reasonable suspicion can be established with information that is different in
quantity or content than that required to establish probable cause.” [Citation.] The
standard “depends on the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” [Citation.] Courts “cannot
reasonably demand scientific certainty . . . where none exists.” [Citation.] Rather, they
must permit officers to make “commonsense judgments and inferences about human
behavior.” ’ ” (Silveria, supra, 10 Cal.5th at p. 236, original italics, quoting Kansas v.
Glover (2020) 589 U.S. __ [140 S.Ct. 1183, 1187-1188].)
“[A] mistake of law, though made in good faith, [cannot] not supply
the reasonable suspicion necessary to justify a traffic stop. [Citations.] Conversely,
‘ “an officer’s mistaken factual belief, held reasonably and in good faith, can
provide reasonable suspicion for a traffic stop.” ’ [Citations.]” (People v. Durant (2012)
205 Cal.App.4th 57, 63.)
Reasonable suspicion to justify a stop “ ‘is dependent upon both the content of
information possessed by police and its degree of reliability.’ [Citation.] The standard
takes into account ‘the totality of the circumstances--the whole picture.’ [Citation.]”
(Navarette v. California (2014) 572 U.S. 393, 397 [188 L.Ed.2d 680].)
Defendant argues the information provided to Officer Lang was insufficient
because the security guard did not report a crime but only “ ‘suspicious males’ hanging
around” a car that the CLETS system reported had been carjacked. Defendant asserts
“[t]here was no reason to believe that the youths hanging around the parking lot were
involved in the carjacking, or in any other criminal activity.”
We disagree. To be sure, a security guard’s report of “suspicious behavior” by
individuals at the apartment complex, without more, would lack sufficient detail to
support a reasonable suspicion that the individuals were involved in criminal activity.
But here there was more. The guard thought the individuals by the pool were not
residents and that they had some connection to the towed car. The dispatcher determined
9
that the car had been the subject of an armed hijacking. Whether true or not, defendant
does not dispute that Officer Lang and other officers were entitled to rely on information
received from dispatch that the security guard at the apartment complex reported two
suspicious males were hanging around after a number of individuals had gotten out of a
car that had been hijacked at gunpoint. (See People v. Brown (2015) 61 Cal.4th 968, 983
(Brown) [“An officer may arrest or detain a subject ‘based on information received
through “official channels” ’ ”].)
The timing and behavior of the individuals at the apartment complex combined
with the report that the car had been hijacked at gunpoint warranted an investigation to
determine if there was a connection. (Brown, supra, 61 Cal.4th at p. 986.) “The
possibility of an innocent explanation does not deprive the officer of the capacity to
entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his
investigation is to resolve that very ambiguity and establish whether the activity is in fact
legal or illegal . . . .” (In re Tony C. (1978) 21 Cal.3d 888, 894; In re H.M. (2008)
167 Cal.App.4th 136, 145.) The reported crime was serious and defendant was leaving
the scene where the hijacked car was found. “Police officers are required to make ‘swift,
on-the-spot decisions’ and the Fourth Amendment does not require us to ‘ “indulge in
‘unrealistic second-guessing’ ” ’ of the officer’s conduct.” (Brown, at p. 984.)
Defendant further argues “officers stopped the silver sedan on the basis of the
wholly inadequate description of the subjects as ‘black male adults, late teens, early
20s.’ ” But Officer Lang received information from dispatch that the security guard had
followed two males out of the complex; when Officer Lang arrived, the guard was
pointing at two males. Officer Lang did not rely only on their physical description.
Defendant claims the security guard was not reliable because he was not known
to Officer Lang and had not provided reliable information in the past, and the guard was
not presumptively reliable as a citizen informant because he was neither a witness to, nor
a victim of, a crime. The California Supreme Court held in People v. Ramey (1976)
10
16 Cal.3d 263 (Ramey) that as a general proposition, “private citizens who are witnesses
to or victims of a criminal act, absent some circumstance that would cast doubt upon their
information, should be considered reliable.” (Id. at p. 269.)
Here, the trial court said People v. Stanley (2017) 18 Cal.App.5th 398 (Stanley)
was instructive. In that case a bus driver reported to police dispatch that a passenger on
the bus matched the description and photos of a child sexual assault suspect in a flier
issued by the police department. (Id. at pp. 400-401.) The driver was not a witness to the
assault but the appellate court nevertheless held that “he was a ‘true citizen informant’
because he voluntarily provided [police] with the information that appeared to link
defendant to the crime.” (Id. at p. 405.) “Unlike information provided by an anonymous
tip, information from a true citizen informant is considered reliable because a citizen
informant ‘can be held responsible if [his] allegation turns out to be fabricated.’ ” (Ibid.,
quoting Florida v. J.L. (2000) 529 U.S. 266, 270 [146 L.Ed.2d 254].) For the same
reason, the guard in this instance was a presumptively reliable true citizen informant.
As defendant points out, such status does not dispense with the requirement that a
citizen informant provide sufficient information to connect a suspect to a crime. (Ramey,
supra, 16 Cal.3d at p. 269) However, we conclude the guard provided sufficient
information of a connection to warrant a stop to investigate.
Defendant also notes that the presumptive reliability of a citizen informant
“ ‘presupposes that the police be aware of the identity of the person providing
information and of his status as a true citizen informant.’ ” (Stanley, supra,
18 Cal.App.5th at p. 405, quoting Ramey, supra, 16 Cal.3d at p. 269.) However, in
People v. Galosco (1978) 85 Cal.App.3d 456, this court said “[w]e do not read this
language in Ramey as requiring that the arresting officer verify the name of the citizen in
order for the that person to be a ‘true citizen informant.’ ” (Id. at p. 461.) In People v.
Superior Court (Haflich) (1986) 180 Cal.App.3d 759, our court further explained:
“Rather the police must have reason to believe, and in fact believe, the informant is truly
11
a citizen informant as opposed to a police informant. This belief and its reasonableness
must be gathered from the surrounding circumstances one of which, mere name alone, is
rarely relevant.” (Id. at p. 768.) In Haflich, as here, such circumstances included that the
citizen informant was physically present at the scene when he conveyed his information
to the police and personally directed the police to the defendant’s location. (Ibid.)
The totality of the circumstances was sufficient to create a reasonable suspicion
that defendant’s presence at the apartment complex was connected to the hijacked
vehicle, allowing the officers to detain him to investigate.
II
Defendant next contends there was insufficient evidence to support the firearm
enhancements because the prosecution presented no evidence that defendant had actual
knowledge of the presence of the firearm and from its location the gun was not accessible
to defendant. Defendant notes the gun was found in the backseat where J.O. was sitting,
not in the front passenger seat where defendant was sitting. Defendant maintains only
J.O. had knowledge of, and access to, the gun for purposes of section 12022,
subdivision (c).2 We disagree.
Section 12022, subdivision (c) imposes a sentence enhancement on a person who
is personally armed with a firearm in the commission of a drug offense. “ ‘Whether a
defendant used a firearm in the commission of an enumerated offense is for the trier of
fact to decide. [Citation.] We review the sufficiency of the evidence to support an
enhancement using the same standard we apply to a conviction.’ [Citation.]” (People v.
2 Defendant relies on the prosecutor’s statement in closing argument that “[t]here’s
really no other evidence that there would be anybody else that would have had access to
this gun” but J.O. But “[t]he prosecutor’s statements are not evidence, and they are not
binding on the jury or the court. [Citations.]” (People v. Leonard (2014) 228
Cal.App.4th 465, 500.) Moreover, defendant misstates the prosecutor’s argument. The
prosecutor argued that no one but J.O. and defendant had access to the gun, J.O. was an
armed juvenile helping defendant, and defendant “can just say give me that gun.”
12
Wilson (2008) 44 Cal.4th 758, 806.) We will affirm the jury’s true finding supported by
substantial evidence, reviewing the entire record in the light most favorable to the
judgment to determine whether it discloses “ ‘ “substantial evidence -- that is, evidence
that is reasonable, credible, and of solid value -- from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” ’ [Citation.]” (Ibid.)
A defendant is “armed” within the meaning of section 12022 where the defendant
has a weapon available for offensive or defensive use. (People v. Singh (2004)
119 Cal.App.4th 905, 912.) To be armed under section 12022, subdivision (c) does not
require that a defendant have a firearm on his person. (See People v. Superior Court
(Pomilia) (1991) 235 Cal.App.3d 1464, 1472.)
Drug offenses such as Health and Safety Code sections 11351 and 11352,
subdivision (a), are continuing crimes. (People v. Bland (1995) 10 Cal.4th 991, 995.)
Evidence of proximity between the drugs and a firearm at some point when the defendant
is physically present is sufficient for the jury to infer that defendant used a firearm during
a drug crime. (Id. at pp. 1003-1004; see People v. Bradford (1995) 38 Cal.App.4th 1733,
1737, 1739; People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1572-1573, 1575; People
v. Pitto (2008) 43 Cal.4th 228, 232-233, 240 (Pitto ); compare People v. Jackson (1995)
32 Cal.App.4th 411, 421-422.)
On cross-examination, defense counsel questioned Detective Watson, the detective
who retrieved the handgun from the car, about defendant’s access to the gun.
“Q. From your observation in searching that car would it be correct that the
person sitting in the passenger seat couldn’t see it?
“A. Where it was sitting at the time that I discovered it?
“Q. That’s it.
“A. They wouldn’t see it sitting in the passenger seat at the time that I
discovered it.
13
“Q. Right, yeah. [¶] And would it be difficult for the passenger to even reach
it?
“A. It would be a little difficult. They’d have to reach around the seat to grab
it.”
Detective Watson’s testimony that defendant in the front passenger seat could not
see the gun where it was found on the floorboards in the backseat did not preclude the
jury from reasonably inferring that defendant knew about the gun found in the same
vehicle as the cocaine and heroin. (Bland, supra, 10 Cal.4th at pp. 1002-1003.)
Detective Hallenbeck testified that it is common for a drug dealer to be accompanied by a
juvenile subject to more lenient criminal sanction acting as a guard and carrying a
firearm. Evidence that J.O., a juvenile, attempted to hide the handgun during the traffic
stop fits this circumstance. Detective Hallenbeck also testified that photos of guns on
defendant’s phone served as a warning that he would be armed during drug transactions.
This evidence provided another basis for the jury to reasonably infer that defendant knew
of the gun.
In any event, cases such as Bradford, Delgadillo and Pitto have not interpreted
section 12022 to require unhindered access to a firearm. Moreover, Detective Watson’s
testimony that a passenger in the front seat would have to reach around to grab the gun in
the back seat supported the conclusion that the gun was within arm’s reach of defendant.
(Pitto, supra, 43 Cal.4th at p. 233 [officer testified that handgun in zippered pouch in
cardboard box behind the driver’s seat of minivan was within arm’s reach of defendant
driver].)
Further, defendant does not dispute that two people may be armed with one gun if
it is accessible to both. In People v. Mendival (1992) 2 Cal.App.4th 562, the court held,
“we see no basis to limit applicability of the Penal Code section 12022, subdivision (c)
enhancement to one individual if both individuals have a firearm available for their ready
14
access. The firearm is there for purposes of offensive or defensive use. It represents the
same threat no matter which person grabs it.” (Id. at p. 574.)
The jury properly found true that defendant was armed within the meaning of
section 12022, subdivision (c).
III
Defendant contends his conviction for violation of Health and Safety Code
section 11370.1 [possession of cocaine and heroin while armed with a loaded firearm]
is also not supported by sufficient evidence.
When considering a challenge to the sufficiency of the evidence to support a
conviction under Health and Safety Code section 11370.1, we review the record in the
light most favorable to the judgment to determine whether it contains reasonable, solid
and credible evidence upon which a jury could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (2015) 60 Cal.4th 966, 988.)
Health and Safety code section 11370.1, subdivision (a), provides that possession
of controlled substances, including cocaine and heroin, “while armed with a loaded,
operable firearm” is a felony. By “armed,” the statute means “having available for
immediate offensive or defensive use.” (Ibid.)
As with section 12022, being armed under Health and Safety Code
section 11370.1 does not require defendant to have a firearm on his person. (People v.
Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 990.) Similarly, Health and
Safety Code section 11370.1 does not require unhindered access to a firearm. (See
People v. Molina (1994) 25 Cal.App.4th 1038, 1043-1044.) For the reasons we have
concluded the jury correctly found true the section 12022 firearm enhancements, we
likewise conclude that sufficient evidence supports defendant’s conviction under Health
and Safety Code section 11370.1.
Defendant cites People v. Clark (1996) 45 Cal.App.4th 1147 (Clark) as support
for the argument that the firearm was not loaded because no shell was in a position from
15
which it could be fired. Detective Watson testified that the handgun did not have a round
in the chamber but the magazine contained its full capacity of seven bullets in the butt of
the gun. The court in Clark interpreted the term “loaded” into Health and Safety Code
section 11370.1 to mean “a shell or cartridge has been placed in a position from which it
can be fired” and it is not loaded “if the shell or cartridge is stored elsewhere and not yet
placed in a firing position.” (Clark, at p. 1153.)
But Clark explained that a gun with rounds loaded in a magazine or clip is loaded
for purposes of Health and Safety Code section 11370.1. In Clark, the firearm was a
single-shot shotgun with no shell in the firing chamber but three shells in a covered
storage compartment in the rear of the stock. To fire a shell, it would have to be removed
by hand from the compartment and placed in the chamber. (Clark, supra, 45 Cal.App.4th
at p. 1152.) The court contrasted that situation with the examples of how a firearm would
have already been loaded in former section 12031 (now section 16840), i.e., where a shell
is “in the firing chamber, magazine or clip . . . .” (Clark, at p. 1154; see also section
16840, subdivision (b)(1) [“A firearm shall be deemed to be ‘loaded’ when there is an
unexpended cartridge or shell, consisting of a case that holds a charge of powder and a
bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to,
in the firing chamber, magazine, or clip thereof attached to the firearm”].) The court
concluded that the Legislature intended this “common meaning” of loaded applied to
Health and Safety Code section 11370.1. (Clark, at p. 1154.)
Defendant’s contention lacks merit.
IV
Defendant also challenges his section 29800 conviction as lacking sufficient
evidence that he possessed the firearm found in the vehicle.
Section 29800, subdivision (a)(1), provides: “Any person who has been convicted
of a felony . . . and who owns, purchases, receives, or has in possession or under custody
or control any firearm is guilty of a felony.”
16
The parties stipulated to defendant’s prior felony conviction for purposes of
section 29800, subdivision (a)(1).
The question of knowledge and possession of a firearm by a felon is a question of
fact for the jury and will not be disturbed on appeal if supported by substantial evidence.
(See People v. De Prima (1959) 172 Cal.App.2d 109, 114; see also People v. Burnett
(1967) 251 Cal.App.2d 651, 657.)
Possession of a firearm may be actual or constructive. (In re Daniel G. (2004)
120 Cal.App.4th 824, 831.) “Although the crime of possession of a firearm by a felon
may involve the act of personally carrying or being in actual physical possession of a
firearm, . . . such an act is not an essential element of a violation of [the statute] because a
conviction of this offense also may be based on a defendant’s constructive possession of
a firearm. [Citations.] ‘To establish constructive possession, the prosecution must prove
a defendant knowingly exercised a right to control the prohibited item, either directly or
through another person.’ [Citation.]” (People v. White (2014) 223 Cal.App.4th 512, 524,
italics omitted (White) [construing § 12021, subd. (a)(1), now § 29800, subd. (a)(1)].) A
defendant may be in constructive possession even if others exercise control over the area
where contraband is discovered, since control need not be exclusive. (People v. Tolliver
(1975) 53 Cal.App.3d 1036, 1046.)
“[P]ossession of a firearm does not necessarily require that the possessor be armed
with it.” (White, supra, 223 Cal.App.4th at p. 524; see also People v. Elder (2014)
227 Cal.App.4th 1308, 1313-1314.) Defendant contends “the evidence was insufficient
to support the elements of knowledge and possession, both of which are required for
conviction,” and incorporates his argument that there was insufficient evidence to support
the jury’s true findings on the section 12022 firearm enhancements, which requires
knowledge and availability for use of a firearm. (Bland, supra, 10 Cal.4th at pp. 1002-
1003.) We rejected that argument with respect to section 12022 and do so again for
purposes of section 29800.
17
However, here, as in People v. Buchanan (2016) 248 Cal.App.4th 603,
defendant’s sentence enhancements for use of a firearm in the commission of drug
offenses under section 12022 and being a felon in possession of firearm under
section 29800 arose out of the same act on the same occasion with one weapon.
(Buchanan, at p. 617; People v. Jones (2012) 54 Cal.4th 350, 357 (Jones).) Therefore, as
this court held in Buchanan, the trial court could not properly impose separate sentences
under sections 12022 and 29800. (Buchanan, at p. 617.) The trial court correctly
imposed a section 12022 sentence on one of the drug counts and stayed the rest under
section 654. (Buchanan, at p. 617.) However, the trial court should have also imposed
and then stayed the sentence on section 29800, rather than impose a two-year sentence to
be served concurrently. (See Jones, supra, 54 Cal.4th at p. 353 [“although there appears
to be little practical difference between imposing concurrent sentences, as the trial court
did, and staying sentence on two of the convictions . . . the law is settled that the
sentences must be stayed to the extent that section 654 prohibits multiple
punishment”].) We will modify the judgment to stay defendant’s sentence imposed
under section 29800.3
V
In addition, defendant contends the trial court abused its discretion in admitting
evidence of his prior juvenile adjudications involving drugs and adult convictions
involving guns under Evidence Code section 1101, subdivision (b).
In reviewing challenges to a trial court’s evidentiary rulings for abuse of
discretion, “we will not disturb the trial court's ruling ‘except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
3 The parties did not raise this issue in their briefs. Because the law appears clear, we
have addressed it without further briefing in the interest of judicial economy. Any party
aggrieved may petition for rehearing. (Gov. Code, § 68081.)
18
in a manifest miscarriage of justice.’ ” (People v. Goldsmith (2014) 59 Cal.4th 258,
266.) A miscarriage of justice occurs if “it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.)
“Evidence Code section 1101, subdivision (a) ‘prohibits admission of evidence of
a person’s character, including evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified
occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not
prohibit admission of evidence of uncharged misconduct when such evidence is relevant
to establish some fact other than the person’s character or disposition.” [Citation.]
Among other matters, evidence of prior bad acts may be used to establish motive, intent,
knowledge, identity, lack of mistake or accident, and the existence of a common design
or plan. (Evid. Code, § 1101, subd. (b).) To be admissible, the evidence of the prior
misconduct must be probative of a material fact. [Citation.]” (People v. Washington
(2021) 61 Cal.App.5th 776, 787 (Washington).)
“Courts have recognized that evidence of other crimes is extremely inflammatory,
and the trial court must take great care to evaluate its admissibility. [Citation.] The trial
court must find that the evidence has substantial probative value that is not outweighed
by its potential for undue prejudice.” (People v. Williams (2009) 170 Cal.App.4th 587,
610 (Williams).)
As detailed in the factual background, the prosecutor presented evidence of
defendant’s three prior convictions involving drugs and/or guns under Evidence Code
section 1101, subdivision (b). The trial court ruled that “with regard to the drug offenses
certainly there was prior cocaine activity, and he certainly had sufficient knowledge of its
nature and the argument that he keeps not knowing the substances are there at some point
losses [sic] a fair amount of credibility . . . .” Defense counsel interjected that the
evidence was “propensity” evidence, and the court responded, “it’s propensity but it’s
19
also . . . evidence of lack of mistake” and “has probative value as to whether or not
[defendant] had possession of it in light of all the other evidence here, and to be able to
say I didn’t know it was there at some point rings a little hollow.” The court concluded,
“Is it prejudicial? Yes. Does that prejudice substantially outweigh its probative value?
I think not with regard to the drugs.”
The court ruled that evidence of the incident where defendant was the driver of a
vehicle where shots were fired and another incident where defendant had possession of a
gun and ran from a car while discarding it “has some probative value on the issue of
certainly of lack of mistake. The court concluded, “I am going to allow it, and I am
going to consider under [Evidence Code section] 352 whether or not the prejudice here
substantially outweighs its probative value, and I’m going to find that the probative value
is not substantially outweighed by its prejudice, so the 2014 event and the incident
involving the shooting from 2011 will be allowed.”4
Defendant argues the evidence of the juvenile drug adjudications was admitted
to prove intent and lack of mistake, matters that were not at issue, and was immaterial to
the relevant issue of whether he knew the drugs were in the car. As to the prior firearm
conviction, defendant maintains the incident was too dissimilar to prove a material fact in
the case. Defendant further asserts that the evidence was more prejudicial than probative
under Evidence Code section 352, because “the probative value of the evidence was to
show that appellant had some familiarity with drugs and guns,” but “the evidence could
not speak to the central issue in the case, which was whether appellant knew of the
presence of the drugs or the gun in the vehicle in which he was riding.”
“ ‘[I]n narcotics prosecutions, evidence of prior drug convictions is relevant to
4 While the trial court allowed evidence of the 2011 incident involving shooting with a
pellet gun from a car driven by defendant, the prosecutor did not introduce evidence
regarding this incident.
20
prove knowledge of the narcotic nature of the substance.’ [Citation.]” (Washington,
supra, 61 Cal.App.5th at p. 787; see also Williams, supra, 170 Cal.App.4th at p. 608.)
Prior incidents involving a defendant where police officers found drugs and guns are
relevant to the defendant’s knowledge as well. (Williams, at pp. 606, 607.) In any event,
defendant’s contention that his prior convictions were not relevant to his knowledge of
the presence of drugs and a gun in the car is unavailing. “Regardless of [defendant’s]
defense theory at trial, by pleading not guilty, he placed all elements of the crimes with
which he was charged in dispute.” (Washington, at p. 788.)
The People note that even if the other crimes evidence was improperly admitted,
any error was harmless. We agree. The admissible evidence established that drugs and
weapons were in close proximity to defendant in the car in which he traveled from
Stockton to West Sacramento. Defendant asked Petty to drive him to Sacramento to visit
his uncle and directed her to the apartment complex, but once there he gathered by the
pool, wandered around the complex, and left. Petty said she had no knowledge of the
drugs and gun in the car. The trial court instructed the jury the evidence of the prior
incidents was admitted for a limited purpose, to consider the similarity or lack of
similarity between the uncharged and charged offenses, not to conclude from the
evidence that defendant was disposed to commit crime, and the People must still prove
each charge and allegation beyond a reasonable doubt, regardless of defendant’s prior
offenses. We presume that the jury understood and followed this limiting instruction.
(Washington, supra, 61 Cal.App.5th at p. 789; Williams, supra, 170 Cal.App.4th at
p. 607.)
It is not reasonably probable that defendant would have obtained a more favorable
result if evidence of his prior convictions had not been admitted.
DISPOSITION
The judgment is modified to stay, under section 654, the sentence imposed
on defendant for being a felon in possession of a firearm under section 29800.
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The judgment is affirmed as modified. The trial court shall prepare an amended abstract
of judgment reflecting the modified judgment and forward a certified copy to the
Department of Corrections and Rehabilitation.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
KRAUSE, J.
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