Opinion
C085061
10-08-2019
THE PEOPLE, Plaintiff and Respondent, v. FRANK RUDOLPH ESTRADA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF17981)
During a search of defendant Frank Rudolph Estrada's car, a probation officer discovered a loaded shotgun, a handgun, and live ammunition. A jury found defendant guilty of two counts of possession of a firearm by a person previously convicted of a felony, and one count of possession of ammunition by a person prohibited from owning or possessing a firearm. In a bifurcated trial, a jury found true the allegation that defendant was out on bail at the time he committed the offenses. On appeal, he contends: (1) the trial court erred in denying his motion to suppress his admission during an interrogation after he invoked his right to counsel; (2) the trial court abused its discretion in admitting testimony about the condition of the shotgun; and (3) his conviction for possession of ammunition by a person prohibited from owning or possessing a firearm must be reversed because his prior underlying felony prohibiting him from possessing a firearm had been reduced to a misdemeanor. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
During the execution of a search warrant for defendant's car, which was parked in front of his residence, a probation officer discovered in a golf bag a 12-gauge shotgun loaded with five unspent 12-gauge shotgun shells, and a .38-caliber handgun with seven unspent .38-caliber rounds inside the pocket of a leather jacket. There was also a spent .38-caliber bullet casing, which had an indentation indicating it had been fired, in another pocket of the leather jacket. In another golf bag, the probation officer found two more unspent 12-gauge shotgun shells. Finally, a Bank of America Visa card and a Woodland Public Library card both issued to defendant were found inside the leather jacket's right pocket. Defendant had a 2004 felony conviction for second degree burglary.
Following the search, Officer Pablo Gonzales interviewed defendant. From prior contacts, Officer Gonzales knew defendant lived at the residence where the car was found. During the interview, defendant told Officer Gonzales, "I really wish I had a lawyer present that night and—and today." He also told the officer, "[T]hat shit you found in my car man was in my car because I wanted it away from me. And (unintelligible) to me it's under lock and key and the kids can't get a hold of it. And nobody has access to that car but me." Prior to trial, the defense filed a motion to suppress this admission. Counsel argued that defendant was not adequately advised of his rights in violation of Miranda v. Arizona (1966) 384 U.S. 436 and his rights were further violated by a failure to "heed his invocation of his right to counsel in violation of Edwards v. Arizona (1981) 451 U.S. 477 ." Following a hearing, the trial court denied the motion, reasoning that there was not a clear invocation.
During the trial, outside the presence of the jury, defense counsel moved to exclude any reference to the shotgun being "sawed-off" as irrelevant and more prejudicial than probative because it had a "mafia gang kind of tone." The trial court reasoned, "If the officer has the training and experience to say that it is a short barrel because the barrel was sawn off, then I think the officer gets to testify to it, but they have to have some basis for saying that . . . [¶] . . . as opposed to using it in a colloquial-type phrase." The court ruled that the probation officer could describe the weapon he found. The probation officer subsequently testified that the shotgun was missing a portion of the barrel and had uneven metal markings at the end of the barrel, indicating that it had been "removed or sawed off." He further testified that the shotgun was rusty, but he was unsure whether it was missing parts.
Following the trial, the jury found defendant guilty of two counts of possession of a firearm by a person previously convicted of a felony (Pen. Code, § 29800, subd. (a)(1)) and one count of possession of ammunition by a person prohibited from owning or possessing a firearm (§ 30305, subd. (a)). Following a bifurcated jury trial on the allegation that defendant was out on bail at the time he committed the offenses in violation of section 12022.1, subdivision (b), the jury found the allegation true. The trial court suspended imposition of sentence and placed defendant on probation for four years.
Further undesignated statutory references are to the Penal Code.
DISCUSSION
I
Motion to Suppress
Defendant contends, and the Attorney General concedes, that the trial court erred in concluding that defendant did not invoke his right to counsel during his police interview and in denying his motion to suppress his subsequent admission. We accept the Attorney General's concession. Nevertheless, we conclude the error was harmless beyond a reasonable doubt.
"We apply a de novo standard of review to a trial court's denial of a motion to suppress under Miranda." (People v. Riva (2003) 112 Cal.App.4th 981, 988.) "Invocation of the Miranda right to counsel 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.' [Citation.]" (People v. Wyatt (2008) 165 Cal.App.4th 1592, 1599.) Before defendant's incriminating admission, he told Officer Gonzales, "I really wish I had a lawyer present that night and—and today." We agree with defendant and the Attorney General that this statement can reasonably be construed as an expression of desire for the assistance of counsel during defendant's custodial interrogation. (See Id. at p. 1599.) Accordingly, the trial court erred in denying defendant's motion to suppress defendant's admission.
Because we conclude that the trial court erroneously admitted defendant's post-invocation statements, we next must evaluate the trial court's erroneous admission of an involuntary confession under the standard of Chapman v. California (1967) 386 U.S. 18, 24 . Under this standard, we ask whether the record demonstrates "beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." (Neder v. United States (1999) 527 U.S. 1, 18 .) "An error is harmless when it is found to be 'unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.]" (People v. Gonzalez (2012) 210 Cal.App.4th 875, 884.)
We find persuasive the court's reasoning in People v. Peracchi (2001) 86 Cal.App.4th 353. There, police arrested the defendant after a car chase and found him hiding in a shed, where they also discovered a hidden handgun. (Id. at pp. 357-358.) A search of the defendant's vehicle revealed further incriminating evidence, including a bullet that matched the gun. (Id. at p. 358.) During an interrogation, the defendant admitted that he was the driver of the vehicle and that he had possessed the gun. (Ibid.) The Peracchi court found that his statement had been erroneously admitted in violation of Miranda. (Id. at pp. 362-363.) The court found, however, that the error was harmless as to his conviction for possession of the gun. (Id. at p. 364.) It concluded "the evidence overwhelmingly established that [the defendant] was in possession of the handgun and that the jury would have come to the same result without the admission of [the defendant's] statement that he possessed the gun." (Ibid.)
Here, as in Peracchi, the error was harmless beyond a reasonable doubt because other evidence amply supported a finding of defendant's guilt. Department of Motor Vehicles records establish the car was registered to defendant, and it was parked in front of his residence at the time of the execution of the search warrant. The probation officer discovered two guns and ammunition in the car, including one handgun in a leather jacket together with a Visa card and a library card with defendant's name on them. Possession may be constructively "imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control . . . ." (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.) In short, the contraband was found in defendant's car in front of his home in his jacket with his identifying cards. This is a wealth of physical evidence.
Further, the physical evidence was uncontroverted. While defendant contends there is indicia in the record that he may have abandoned the car and its contents, that claim is not supported by the record. When asked by defense counsel if the car was operational, the probation officer simply replied that he was not sure. When asked if it "look[ed] like it had been moved," the probation officer replied it did not. It is unclear whether defense counsel was attempting to ask whether the car had been moved within a specific time period such as a day, a month, or longer. This testimony alone is not "indicia of abandonment," as defendant claims. Accordingly, the physical evidence of defendant's possession of the guns and ammunition was uncontroverted and defendant's admission that the car and guns belonged to him stated what was already apparent. The record demonstrates beyond a reasonable doubt that absent the error in denying defendant's motion to suppress his admission, a rational jury would have found defendant guilty.
II
Admission of Evidence Regarding Condition of Shotgun
Defendant contends that the trial court erred in admitting the probation officer's testimony describing the barrel of the shotgun as "sawed off" over his objection. Defendant acknowledges this error alone would not warrant reversal, but argues that the cumulative prejudicial effect of this error and the error in admitting denying his motion to suppress prejudiced him and requires reversal under Chapman. We disagree.
" '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.) Evidence Code section 352 provides: "The 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." "Trial courts enjoy ' "broad discretion" ' in deciding whether the probability of a substantial danger of prejudice substantially outweighs probative value. [Citations.]" (People v. Holford (2012) 203 Cal.App.4th 155, 167-168.)
Here, the Attorney General argues that the probation officer's description of the shotgun had some tendency in reason to support his identification of the gun he found in defendant's car. However, the defense did not dispute the identity of the gun. Nevertheless, even if the probation officer's description of the condition of the gun was irrelevant, any error in admitting this testimony was not prejudicial. Even without the probation officer's description of the shotgun, the jury viewed the condition of the shotgun's barrel when the gun was twice published to the jury. For the additional reasons we have discussed ante, any error was harmless under Chapman. We have found no prejudice when considering defendant's claims separately. Viewed cumulatively, our conclusion is the same. (See People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
III
Proposition 47
Defendant contends that his conviction for possession of ammunition by a person prohibited from owning or possessing a firearm under section 30305, subdivision (a), must be reversed because the underlying felony of his previous conviction had been reduced to a misdemeanor under Proposition 47. He argues that the exception in section 1170.18, subdivision (k), prohibiting him from possessing a firearm, does not extend to his possession of ammunition. We disagree.
Proposition 47, the Safe Neighborhoods and Schools Act, became effective in 2014, creating the crime of "shoplifting," a misdemeanor. (People v. Gonzales (2017) 2 Cal.5th 858, 863.) This voter initiative measure also created a new provision, which allows a person currently serving a felony sentence for an offense that is a misdemeanor under Proposition 47 to petition for recall of that sentence and for resentencing; if the sentence has been completed, the person may petition for redesignation of the felony conviction as a misdemeanor. (§ 1170.18, subds. (a)-(b), (f)-(g).) On March 2, 2017, defendant's petition to reduce his second degree burglary conviction to a misdemeanor under Proposition 47 was granted.
Statutory interpretation is a question of law that we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.) We apply the same rules of construction to statutes and voter initiatives. (People v. Park (2013) 56 Cal.4th 782, 796.) Although we begin with the statutory language, we do not construe it in isolation; rather, every statute must be read in context of the entire statutory scheme. (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) Section 1170.18, subdivision (k), provides: "Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6."
Section 30305, subdivision (a)(1), provides: "No person prohibited from owning or possessing a firearm under Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, shall own, possess, or have under custody or control, any ammunition or reloaded ammunition." Because the prohibition on firearm ownership, possession, custody, or control is the only part of the Penal Code specifically referenced in section 1170.18, subdivision (k), defendant argues the voters must not have intended the exception with respect to the misdemeanor redesignation of felony convictions in subdivision (k) to apply to section 30305. But section 1170.18, subdivision (k) cannot be read in isolation. Both subdivision (k) and section 30305 reference the prohibition of gun ownership or possession in Chapter 2 of Division 9 of Title 4 of Part 6 of the Penal Code. (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [reasoning that "statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible"].) Section 30305 does not provide that a felon is prohibited from possessing ammunition. Rather, section 30305 is dependent on the firearm statutes, providing that it is illegal for a person who is prohibited from lawfully owning or possessing a gun under other statutes to own or possess ammunition. The prohibition on gun ownership and possession survives Proposition 47, since under section 1170.18, subdivision (k), defendant is a person who may not lawfully own or possess a gun. Read together, section 1170.18, subdivision (k) and section 30305 prohibit defendant from owning or possessing ammunition. Thus, the reduction of defendant's prior felony to a misdemeanor did not preclude him from conviction for a violation of section 30305.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. MAURO, J.