Opinion
B226034
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LORENZO GUEST, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA073116)
APPEAL from a judgment of the Superior Court of Los Angeles County. Antonio Barreto, Jr., Judge. Affirmed in part; reversed in part and remanded.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Kenneth Lorenzo Guest appeals from the judgment following trial by jury in which he was convicted of 19 criminal counts: (counts 1-5) transportation and possession for sale of five assault weapons (Pen. Code, § 12280, subd. (a)(1)); (count 6) possession of body armor by a violent felon (§ 12370, subd. (a)); (count 7) unlawful possession of ammunition by a violent felon (§ 12316, subd. (a)(1)); (count 8) spousal battery (§ 243, subd. (e)(1); (count 9) attempted criminal threat (§§ 664, 422);(counts 10-14) possession of five assault weapons (§ 12280, subd. (b)); and (counts 15-19) possession of five firearms by a violent felon (§ 12021, subd. (a)(1)). The jury found the gang enhancements not true as to all counts (§ 186.22, subd. (b)(1)(A)). After a bifurcated trial, the jury found true the allegations of two prior convictions of a serious or violent felony (§§ 1170.12, subds. (a)-(d), 667) (two strike priors) and five separate prior convictions (§ 667.5) (five prison priors).
All statutory references shall be to the Penal Code unless otherwise noted.
Appellant was charged with corporal injury to a spouse (§ 273.5, subd. (a)), but the jury found him guilty of the lesser included offense of spousal battery.
Appellant was charged with criminal threat (§ 422), but the jury found him guilty of the lesser included offense of attempted criminal threat.
Appellant was sentenced to a total of 75 years to life in state prison as follows: The court selected count 15, felon in possession of a firearm, as the principal term and imposed a sentence of 25 years to life pursuant to the "Three Strikes" law (§§ 1170.12, subds. (a)-(d), 667). On counts 16, 17, 18 and 19, possession of four additional firearms, the court imposed 25 years to life on each count, to run concurrently with each other. On counts 1 through 5 and 10 through 14, involving the same five firearms, the court imposed sentences of 25 years to life on each count, stayed pursuant to section 654. On count 7, felon in possession of ammunition, the court imposed a concurrent sentence of 15 years to life. On count 6, possession of a ballistic vest, and count 9, attempted criminal threat, the court imposed sentences of 25 years to life on each to run consecutively to the sentence on the principal term. On count 8, spousal battery, a misdemeanor, the court sentenced appellant to 180 days, time served. The court struck the five one-year prison priors pursuant to section 1385.
We agree with appellant that the trial court erred in instructing the jury in accordance with the 2010 amended statute defining body armor, rather than the 2009 statute applicable at the time of appellant's offense, and reverse his conviction of possession of body armor. We disagree with appellant's contention that the evidence was insufficient to support his conviction of possession of two UZI firearms.
FACTS
Prosecution Case
On December 11, 2009, appellant woke his wife, Babette Wilkins, and began arguing with her about how she maintained their truck. He grabbed Wilkins's hair, forced her head between his legs, and squeezed his legs together. Wilkins's neck felt hot and irritated and she had trouble breathing. She escaped from his hold and ran into the living room. Appellant followed her and told her to get away from the front door. He ripped off his shirt and said, "I'm going to fuck you up." Appellant told Wilkins to go back to the bedroom and she complied. After sitting on the bed for a few minutes, Wilkins got up, left the house, and went next door. Her neighbor dialed 911 and Wilkins reported to the dispatcher that appellant was being violent and had weapons in the house.
Officers from the Los Angeles Police Department (LAPD) responded to Wilkins's residence on Westminster Avenue in Los Angeles. She told them there were weapons in the house and she wanted them removed. The officers found a total of five firearms. In the garage, they found an AK-47 with an attached green sling that was wrapped in a cloth underneath a table and two black duffle bags. One bag contained two .9 millimeter UZI receivers, and the second contained multiple gun magazines, some of which had live ammunition, two drum magazines, and one 16-inch gun barrel. In the house, officers found another AK-47, a 50-round box of .9 millimeter ammunition, a banana clip magazine (high-capacity magazine), and an LAPD bulletproof vest. In a second search of the house on the same day, officers located a TEC-9 pistol and a .9 millimeter magazine.
A "receiver" is the metal frame in which the operating mechanism is housed and to which the end of a barrel is attached. (People v. Arnold (2006) 145 Cal.App.4th 1408, 1414.)
During the initial search, appellant was seated in the backseat of a patrol car parked in front of the house. Apparently agitated by how long the search of the garage was taking, appellant told an officer where to find additional ammunition in the house and a bulletproof vest in a closet. The items were found where appellant said they would be. After appellant was arrested and taken to the police station, he informed officers of more weapons in the house, which prompted the second search.
After being advised of his rights, appellant agreed to be interviewed. He told Detectives Damon Hogan and Michael Mersereau that he had argued with his wife, pulled her hair and threatened to beat her up, but denied hurting her. He also told the detectives that the assault weapons and ammunition belonged to him. He had knowledge of assault weapons and had used the TEC-9 pistol. Appellant obtained the UZI's in March or April 2009. Before he brought them to Wilkins's house, he kept them at a girlfriend's house. Appellant had a reputation for having guns. He somehow came upon the weapons, then sold them. He worked by referral, but would sell on the street to someone he trusted. He was a middleman and had higher status than a street-level gun seller. Appellant obtained the bulletproof vest in March 2009, along with a gun. He no longer had the gun, but kept the vest for himself. Appellant liked to have two guns of each make in case he ran out of one, which is why he had two UZI's and two AK-47's. The TEC-9 was his personal weapon, his "baby," which he would not sell. Appellant had practiced retrieving the weapons and ammunition at the house and garage under various scenarios if he was under attack.
Testing revealed that the two AK-47's, the two UZI's, and the magazines were functional. Detective Mersereau testified as an assault weapons expert and explained how the TEC-9, two AK-47's, and two UZI's recovered from Wilkins's house and garage qualified as assault weapons under California law. The guns were not legally registered under appellant's name.
LAPD Officer Edward Leverich, who had participated in the search of Wilkins's house and garage, explained that the ballistic panels of the recovered bulletproof vest could be removed from the carrier through a zipper on the bottom. The ballistic panels inside the carrier were labeled "LAPD," with a reserve officer's name and a serial number, indicating the vest had been issued to the officer by the LAPD.
Detective Mersereau, who had been an LAPD officer for 14 years, examined the vest and discovered that it was the exact make and model he was issued "years ago." He explained the testing a ballistic vest was required to undergo in order to be worn by LAPD officers: the manufacturer would have to submit the vest to an agency that would test the vest by shooting it with different calibers and assign the vest a "threat level," starting at 2A for small caliber handguns. The vest at issue was stamped "threat level 2," which meant that it provided protection from small-caliber and "some larger-caliber" ammunition. The vest's ballistic panels did not appear to be damaged. At the time of trial, Detective Mersereau was still investigating whether the vest was stolen. He had contacted the LAPD's supply division, which had not determined if the vest was in the inventory of vests scheduled to be destroyed. The supply division verified that the vest was outdated and should have been turned in years ago by the detective to whom it was issued. Detective Mersereau testified that the vest would have been turned in either because it was more than five years old and no longer covered by the manufacturer's warranty, or it was recalled. Detective Mersereau did not conduct any testing on the vest.
Defense Case
Against the advice of counsel, appellant testified on his own behalf. He had been married to Wilkins for 13 years. Wilkins began renting her house while appellant was in prison. Appellant was not named on the lease, but slept at the house and kept clothes there.
On the morning of December 11, 2009, appellant woke Wilkins up at 5:00 a.m. by hitting her on her behind. He grabbed her hair, but did not mean the act to be threatening, as he often grabbed Wilkins's hair to bring her face closer so he could kiss her. He denied telling Wilkins or detectives that he threatened to "fuck up" Wilkins, and denied placing her in a choke hold.
Appellant owned the weapons recovered from Wilkins's house and garage. He stored them elsewhere while he was in prison, and did not plan to store them at Wilkins's house after he was released from prison in April 2009. But he had had a falling out with the person who was storing his guns, and one day the person suddenly showed up with the guns at Wilkins's house.
Appellant was knowledgeable about firearms. He had used the TEC-9, which he had owned for more than five years. He knew how to take the gun apart, put it back together, and clean it. He had also loaded both AK-47 rifles, and he knew how to put the barrel on the UZI rifles. Appellant knew the firearms were assault weapons. He also knew that he was not allowed to own any type of firearm because of his prior felony convictions.
Appellant denied selling guns. He claimed he lied when he told the detectives he was in the gun business. He only kept guns for himself. He was truthful when he said that if he needed money, he would sell three of the five assault weapons. He would not sell the other two weapons because he believed he needed them for protection. Appellant had told detectives that he planned to "get[] out of AK's and go[] to AR-15's, and M16's, and things like that." Appellant had more firearms than just the five recovered by the police.
The bulletproof vest in appellant's closet "just popped up" during a business meeting. Appellant did not know it was an LAPD vest when it was given to him, but at some point he discovered that it was. He had not tried on the vest. He did not need to because he was "pretty familiar with vests." He examined, touched, and manipulated the vest.
Appellant admitted joining the Rolling 60's street gang between 1984 and 1986. His nickname was "Bumpy" and his gang moniker was "Little Creeper." Appellant obtained the gang tattoos on his back in the early 1990's. At the time of his arrest, he no longer spent time with gang members, or conducted business with them. He had stopped being an active member of the Rolling 60's gang approximately 18 years before trial. Appellant made a living "in the music business," he was a "side owner" in a restaurant, and he "mess[ed] around with exotic cars." Appellant was convicted of robbery in 1991 and 1998.
DISCUSSION
I. Conviction on Count 6 Under 2010 Statute
Appellant contends his conviction for having possessed body armor on December 11, 2009 (count 6), for which he received a sentence of 25 years to life, must be reversed because the trial court instructed the jury with the 2010 statutory definition of "body armor," instead of the 2009 definition in effect at the time of his offense. Appellant argues the court's instruction violated state law and ex post facto principles, and the state and federal guarantees of due process and fair notice. He also argues that his contention is not forfeited and that his trial counsel was ineffective in requesting the court to instruct the jury with the 2010 definition.
A. Background
Section 12370, subdivision (a) prohibits the possession of body armor by a violent felon. In 2009, the statute defined "body armor" by reference to California Code of Regulations, title 11, section 942. California Code of Regulations, title 11, sections 941 through 957 set forth the process by which body armor is certified for purchase by law enforcement agencies in California. Title 11, section 942, subdivision (e) defines "body armor" as follows: "'Body armor' is popularly called a 'bulletproof vest.' For purposes of these regulations, 'body armor' means those parts of a complete armor that provide ballistic resistance to the penetration of the test ammunition for which a complete armor is certified. In certain models, the body armor consists of ballistic panels without a carrier. Other models have a carrier from which the ballistic panels may be removed for cleaning or replacement." (Cal. Code. Regs., tit. 11, § 942, subd. (e).)
Former section 12370, subdivision (a) provided: "Any person who has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5, under the laws of the United States, the State of California, or any other state, government, or country, who purchases, owns, or possesses body armor, as defined by Section 942 of Title 11 of the California Code of Regulations, except as authorized under subdivision (b), is guilty of a felony, punishable by imprisonment in a state prison for 16 months, or two or three years."
"Penetration" is defined in title 11, section 942, subdivision (j) of the California Code of Regulations as "complete perforation of an armor test sample by a test bullet or bullet fragment, or fragments of the armor evidenced by the presence of the bullet or fragment in the backing material, or by a hole that passes through a ballistic panel or vest." (Cal. Code. Regs., tit. 11, § 942, subd. (j); see also Cal. Code Regs., tit. 11, § 945, subd. (f) [body armor shall protect "against penetration"].) The complex technical specifications for the specified test ammunition for various types of body armor are set out in California Code of Regulations, title 11, section 946. Thus, under the 2009 statute, the prosecution was required to prove beyond a reasonable doubt that the garment in question (1) provided ballistic resistance to the complete perforation of an armor test sample, (2) from the types of ammunition specified in the regulations as the test ammunition for the armor type corresponding to that garment. This proof had to be made by expert testimony. (People v. Chapple (2006) 138 Cal.App.4th 540, 548-549.)
On December 17, 2009, in a two-to-one decision in People v. Saleem (B204646, previously published at 180 Cal.App.4th 254) (Saleem), Division Three of the Second District held that the definition of body armor in section 12370, subdivision (a) was unconstitutionally vague because a person of ordinary intelligence had no reasonable way of knowing whether a bulletproof vest met all the technical requirements necessary to qualify as "body armor" under the statute. The California Supreme Court granted the People's petition for review on March 10, 2010 and ordered Saleem depublished. On June 2, 2010, the Legislature passed emergency legislation in response to Saleem, altering the definition of "body armor" in section 12370, subdivision (a). (Historical and Statutory Notes, West's Ann. Pen. Code (2011 Electronic Update) foll. § 12370; Legis. Counsel's Dig., Sen. Bill No. 408 (2009-2010 Reg. Sess.).) The reference to the Code of Regulations was removed, and section 12370, subdivision (f) was added to state, "For purposes of this section, 'body armor' means any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor." In light of the new legislation, the California Supreme Court dismissed review in Saleem. (People v. Saleem (2009) 180 Cal.App.4th 254, review dismissed September 1, 2010, S179660.)
On June 14, 2010, before trial in this case, defense counsel and the prosecutor informed the court of Saleem, including the fact that it was not citable because it was pending before the California Supreme Court. The parties also informed the court of the emergency legislation with regard to section 12370, subdivision (a), which had just become effective. The prosecutor argued that the 2009 definition of body armor should be used when instructing the jury in appellant's trial, as that was the definition in effect when appellant committed the offense. Defense counsel wanted to research whether the 2010 statute was retroactive. The court declined to rule on the matter, indicating that it was an issue of jury instruction that could be addressed at the end of trial.
After the presentation of evidence, the parties addressed jury instructions. The court indicated that it had read Saleem, and proposed that the parties draft an instruction on possession of body armor. When the court asked whether the parties had thought about such an instruction, defense counsel stated, "I actually have, your Honor, and I would propose—I don't think there is an issue with regard to the vest. I don't think that that's a major issue that the defense is going to be pursuing. But in an abundance of caution, I would ask that because of the concerns voiced by the Court of Appeal in Saleem that the definition that came into being, I believe on June 1st or June 3rd of this year, be the definition that the court follows, and I will draft an instruction accordingly."
The jury was instructed as follows: "A person who has been convicted of a violent felony, as defined in California Penal Code section 667.5 who purchases, owns, or possesses body armor is guilty of violating Penal Code section 12370(a). The term, 'body armor,' means any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor. Any robbery is a, 'violent felony,' as defined in Penal Code section 667.5. The term, 'possession,' has been already defined for you in other instructions."
B. Error in Jury Instruction
Appellant argues that his conviction under the 2010 definition of body armor violated section 3, which provides that "[n]o part of [the Penal Code] is retroactive, unless expressly so declared." (§ 3.) As appellant points out, section 3 embodies the general rule of construction that when there is nothing to indicate a contrary intent in a statute, it is presumed that the Legislature intended the statute to operate prospectively and not retroactively. (In re Estrada (1965) 63 Cal.2d 740, 746.)
Appellant also correctly argues that retroactive application of a statutory amendment which expands the scope of an existing crime violates the ex post facto clauses of the state and federal Constitutions, which offer protection from laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43; People v. Grant (1999) 20 Cal.4th 150, 158; U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 9.) The federal and California ex post facto clauses are interpreted the same way. (People v. Castellanos (1999) 21 Cal.4th 785, 790; People v. Travis (2006) 139 Cal.App.4th 1271, 1294.) A statute has an ex post facto effect when it alters the situation of an accused to his disadvantage by: (a) making criminal an action innocent when done; (b) making more serious an act already criminal when done; (c) inflicting greater punishment than that attending the act at the time it was committed; or (d) permitting a person to be convicted with less evidence than was required when the act was done. (In re Bray (1979) 97 Cal.App.3d 506, 510; see also Carmell v.Texas (2000) 529 U.S. 513, 522.) The standard for determining whether a law violates the ex post facto clause has two components: "a law must be retrospective—that is, 'it must apply to events occurring before its enactment'— and it 'must disadvantage the offender affected by it' . . . by altering the definition of criminal conduct or increasing the punishment for the crime . . . ." (Lynce v. Mathis (1997) 519 U.S. 433, 441; People v. Delgado (2006) 140 Cal.App.4th 1157, 1164.)
Finally, appellant argues that retroactive application of a law presumed to be prospective in application violates the fair notice requirement of the due process clauses of the federal and state Constitutions. (Bouie v. Columbia (1964) 378 U.S. 347, 349-350; Keeler v. Superior Court (1970) 2 Cal.3d 619, 633-634; U.S. Const., 14th Amend.; Cal. Const., art. 1, § 7.)
The People agree with appellant that the 2010 definition of body armor expanded the scope of the crime proscribed in section 12370, subdivision (a), "because now 'any' bullet-resistant material is prohibited, not just items that provide ballistic resistance to the test ammunition listed in the Code of Regulations." The People therefore agree that the jury should have been instructed with the 2009 definition, as the prosecution requested. Accordingly, the People concede that the trial court violated ex post facto principles in instructing the jury with the 2010 definition. Nevertheless, the People argue that the error was invited and that it was harmless beyond a reasonable doubt. (See People v. Farley (1996) 45 Cal.App.4th 1697, 1710 [violation of ex post facto principles reviewed under federal harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24]; see also People v. Flood (1998) 18 Cal.4th 470, 499 [Chapman applies to instructional error omitting an element].)
The Legislative Counsel's Digest of Senate Bill No. 408 (Stats. 2010, ch. 21) (the amendment to section 12370) provides in pertinent part: "'This bill would change the definition of "body armor" for purposes of this provision to mean any bullet-resistant material intended to provide ballistic and trauma protection for the person wearing the body armor. By expanding the scope of an existing crime, this bill would create a state-mandated local program.'" (See West's Ann. Cal. Pen. Code § 12370, "Historical and Statutory Notes," italics added.)
C. Invited Error
The People argue that the invited error doctrine bars appellant's claim that the definition of "body armor" provided to the jury was erroneous. The invited error doctrine prevents a defendant from challenging on appeal an instruction he requested as a deliberate tactical choice. (People v. Gonzales (2011) 51 Cal.4th 894; People v. Lucero (2000) 23 Cal.4th 692, 723; People v. Riazati (2011) 195 Cal.App.4th 514, 529-530.)
Here, appellant's trial counsel specifically requested that the jury be instructed with the 2010 definition of body armor. Indeed, defense counsel drafted the instruction. The record reflects that defense counsel's decision to request the 2010 definition was a deliberate tactical choice. Counsel stated to the trial court that she requested the 2010 definition "in an abundance of caution . . . because of the concerns voiced by the Court of Appeal in Saleem." We therefore agree with the People that error in giving the 2010 definition was invited. But we also agree with appellant that the invited error was due to the ineffective assistance of his trial counsel.
D. Ineffective Assistance of Counsel
Pursuant to Strickland v. Washington (1984) 466 U.S. 668 (Strickland), a defendant making a claim that his trial counsel was ineffective must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. (Id. at pp. 668, 687-688, 693-694.) A claim of ineffective assistance of counsel on direct appeal places a heavy burden on appellant. (People v. Lucas (1995) 12 Cal.4th 415, 437.)
As to the first prong of Strickland, counsel's performance is objectively deficient if it falls below an objective standard of reasonableness under prevailing professional norms. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) "'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]." (People v. Weaver (2001) 26 Cal.4th 876, 925-926; accord, People v. Jones (2003) 29 Cal.4th 1229, 1254.) "If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (People v. Ledesma, supra, at p. 746; accord, People v. Weaver, supra, at p. 926; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Fosselman (1983) 33 Cal.3d 572, 581.) With regard to Strickland's second prong, prejudice is established by showing there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694.)
Appellant identifies three ways in which his trial counsel's representation fell below an objective standard of reasonableness: "[T]rial counsel (1) was either unaware of, or chose to ignore, the ex post facto principles which barred application of the 2010 law; (2) was unaware or was confused about the differences in the 2009 and 2010 law; and/or (3) believed that a depublished decision holding that the 2009 law was void for vagueness trumped ex post facto principles and required or allowed application of the new law, which was not in effect at the time of the charged offense and which expanded the scope of the offense in violation of ex post facto principles."
The record does not support either of appellant's first two assertions. During the pretrial discussion, the prosecutor made clear that the 2009 definition had to be used because it was the law in effect when appellant committed the charged offense. Thus, defense counsel was necessarily made aware of the ex post facto issue, and she indicated that she would research whether the 2010 amendment was retroactive. The issue of which definition of body armor to use was not discussed again until after the presentation of evidence. Defense counsel indicated that she had thought about the matter and determined that there was no real issue as to the possession of the body armor count in light of the evidence adduced at trial. She therefore proposed that the jury be instructed with the 2010 definition. Appellant complains that counsel was wrong when she stated to the trial court that the 2010 definition was "more definitive," because the 2010 definition actually expanded the scope of the crime. But counsel explained that when she said the 2010 definition was "more definitive," she simply meant that the 2009 definition had been declared void for vagueness, and the new definition was crafted to avoid any vagueness challenges. Counsel did not indicate that she thought the 2010 definition was narrower in scope than the 2009 definition.
We find appellant's third assertion of ineffective assistance to have merit. Appellant claims that his counsel should have (1) requested an instruction under the applicable 2009 statute with its far more technical definition of body armor, which would have put the prosecution to a higher burden of proof, and (2) moved to dismiss the body armor count on the ground that the 2009 statute was void for vagueness. While acknowledging Saleem was not citable authority, appellant argues, "the court and the parties were aware that the 2009 law was under attack as being void for vagueness and the reasoning and conclusion of the opinion could have and should have been argued by defense counsel." We agree.
It is the People's position that a motion to dismiss count 6 of the information would not have been successful, because the 2009 statute was not void for vagueness, despite the majority holding in Saleem. Given that the decision in Saleem was not unanimous and the Supreme Court never resolved the issue, the result of such a motion is not certain. But it is entirely plausible that the trial court would have granted the motion, in light of the fact the Legislature amended the 2009 statute as emergency legislation following a judicial finding of constitutional vagueness. Pretrial, the court stated, "But the old definition is what led to the appellate court making a finding that was clear enough that the Legislature undertook emergency legislation in a midyear basis to change the statute to add a definition that didn't exist before . . . . Well, [Saleem] may not be citable, but the reasoning of it may be . . . ." Had a motion to dismiss been made and granted, prejudice is clear, as appellant would not have been convicted and sentenced to 25 years to life on count 6.
Although defense counsel may have had a deliberate tactical reason for requesting that the jury be instructed with the 2010 definition of body armor, her decision clearly disadvantaged her client. Aside from relieving the prosecution of a higher burden of proof under the 2009 statute, which required the prosecution to meet very technical requirements to establish "body armor," defense counsel's drafted jury instruction led directly to the violation of her client's rights under the ex post facto and due process clauses of the state and federal Constitutions. Moreover, defense counsel appeared more concerned about attempting to avoid the void-for-vagueness challenges to the 2009 law by requesting application of the 2010 law, seemingly without realizing that appellant deserved to have the very same challenges to the 2009 law made on his own behalf. We conclude that defense counsel's failure to challenge the 2009 statute and seek dismissal of count 6 fell below an objective standard of reasonableness and prejudiced her client. Accordingly, appellant's conviction on count 6 must be reversed.
E. Substantial Evidence
Even if we did not find that instructing the jury with the 2010 statute instead of the 2009 statute was invited error and that defense counsel provided ineffective assistance, appellant's conviction on count 6 must nevertheless be reversed because the prosecution did not produce substantial evidence of the offense under the 2009 statute beyond a reasonable doubt.
In evaluating whether substantial evidence supports the verdict, the reviewing court reviews "the whole record in the light most favorable to the judgment below 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." (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Johnson (1980) 26 Cal.3d 557, 578.) In addition, the appellate court "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although People v. Johnson is often cited for resolving all conflicts in the evidence or inferences in favor of the verdict (People v. Johnson, supra, at p. 576), Johnson admonishes that the determination must be whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt. (Ibid.) It is not enough that there is some evidence based upon which a trier of fact might speculate that the defendant is in fact guilty. (People v. Reyes (1974) 12 Cal.3d 486, 499; People v. Holt (1944) 25 Cal.2d 59, 70.)
Here, the prosecution did not prove by substantial evidence beyond a reasonable doubt that appellant violated the applicable 2009 statute, because the prosecution's proof did not meet the technical definition of body armor under the 2009 statute and applicable California Code of Regulations.
Two witnesses testified concerning the vest, neither of whom was qualified as a body armor expert. Officer Leverich, who had been an LAPD officer for two years, testified that he was present when an "LAPD bulletproof vest" was recovered from the closet at Wilkins' home. He observed that a ballistic panel removed from the vest was marked with "LAPD," an individual's name, and a number consistent with a reserve officer's serial number. The vest and markings were similar to those on his own police-issued vest.
Detective Mersereau also testified about the LAPD marking and that the vest was similar to one he had been issued by the LAPD "a number of years ago." He had been with the LAPD for 14 years, but gave no time frame for when he had a similar vest. While Mersereau testified about the testing a vest would have to undergo in order to be used by LAPD officers, he simply stated that the manufacturer would have to submit the vest to an agency which would test it by shooting it with various calibers and assign the vest a "threat level." Mersereau did not conduct any testing on the vest himself. He testified that the LAPD supply division told him the subject vest was outdated and should have been turned in some unspecified number of years earlier. According to Mersereau, the two possible reasons the vest would have been turned in were either the expiration of the manufacturer's warranty, or the recall of the vest because its materials did not meet specific ballistic property requirements.
Appellant acknowledges that "[w]hile the testimony of Leverich and Mersereau was arguably sufficient to establish that the vest in question had some protective properties," appellant correctly argues that the testimony did "not constitute substantial evidence that the vest met the very specific standards for body armor required under the 2009 law." There was no testimony by a qualified body armor expert that the vest would "provide ballistic resistance to the penetration of the test ammunition" of the specified types for the specified type of armor (Cal. Code Regs., tit. 11, § 942, subd. (e)). Nor was there expert testimony that the vest would resist penetration as defined in section 942, subdivision (j) of the Code of Regulations, i.e., "complete perforation of an armor test sample by a test bullet or bullet fragment, or fragments of the armor evidenced by the presence of the bullet or fragment in the backing material, or by a hole that passes through a ballistic panel or vest." (See also Cal. Code Regs., tit. 11, § 945, subd. (f) [body armor shall protect "against penetration"].) Indeed, Detective Mersereau's testimony established a reasonable doubt whether the vest met the technical standards set out in the 2009 law, because he testified that one possibility for why the vest should have been turned in was because it could have been recalled for failing to meet certification standards.
The People concede that "under the 2009 law, expert testimony was probative to show that the item at issue actually was body armor in order to satisfy the possession element of the crime." But the People never presented testimony by a qualified expert on body armor. While the prosecution qualified Detective Mersereau as an expert on the subject of assault weapons, no attempt was made to qualify him as an expert on the subject of body armor and the prosecution did not offer him as such an expert. The People argue that appellant waived any challenge on this issue because he failed to object to the detective's qualifications as a body armor expert. But appellant was not required to object to Detective Mersereau's qualifications as a body armor expert because he was never offered as a body armor expert and presented no expert testimony on the subject.
In People v. Chapple, supra, 138 Cal.App.4th at page 544, the Court of Appeal rejected as insufficient the testimony of a police officer who was not offered as a body armor expert that a vest seized in evidence was a "body armor vest, bullet proof vest." The officer's familiarity with such vests from being "around them all my life" and from wearing one on the police force (ibid.) did not qualify him as an expert to give opinions as to the composition of the vest or whether it met the technical specifications for "body armor" under the 2009 law (id. at p. 547).
In light of our conclusion that the prosecution failed to produce substantial evidence to establish that the subject vest qualified as body armor under the 2009 law, we need not address appellant's additional argument that the prosecution also failed to establish the 2009 statute's implied element that appellant knew or should have known that his vest was proscribed body armor.
II. Possession of UZI Firearms
Appellant contends there was insufficient evidence to support the jury's finding that he possessed two separate UZI firearms. He therefore argues that one of his convictions on counts 2 and 3 (transportation/possession for sale of assault weapons, §12280, subd. (a)), one conviction on counts 11 and 12 (possession of assault weapons, §12280, subd. (b)), and one conviction on counts 16 and 17 (felon in possession of firearm, §12021, subd. (a)) must be reversed.
Police officers recovered two UZI receivers from a duffle bag in Wilkins's garage. In a second duffle bag, they located one 16-inch barrel which fit both UZI receivers. Appellant concedes that with the barrel attached, each UZI was a functional firearm which qualified as a category 1 assault weapon listed under section 12276(a)(2). Detective Mersereau specifically agreed that the definition of "firearm" required that a projectile be expelled through a barrel. Appellant argues that because the UZI receivers required a barrel to become a functional firearm and there was only one UZI barrel, there was insufficient evidence to prove that appellant possessed two separate UZI firearms. We disagree.
Section 12001, subdivision (b) defines "firearm" as "any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion." Section 12001, subdivision (c) states, "As used in Sections 12021, . . . the term 'firearm' includes the frame or receiver of the weapon." As stated in People v. Arnold, supra, 145 Cal.App.4th at p. 1414, "subdivision (c) of section 12001 enlarges, rather than limits, the definition of 'firearm' in subdivision (b). This means that, for purposes of section 12021, possession of a 'frame or receiver' is sufficient to constitute possession of a 'firearm,' regardless of whether a 'device' with a 'barrel' is also possessed." As such, the evidence was sufficient to support appellant's conviction of two counts of violating section 12021, possession of UZI firearms.
Additionally, each UZI qualified as an "assault weapon" under section 12280. Under California law, "assault weapons" fall into three categories. Category 1 assault weapons are those weapons specifically listed in section 12276. Section 12276, subdivision (a)(2) lists "UZI" rifles as Category 1 assault weapons. Pursuant to the directive of section 12276.5, the California Attorney General has promulgated the "Assault Weapons Identification Guide," with pictures and descriptions of each assault weapon listed in section 12276. The Guide indicates that Category 1 assault weapons are identified by their markings (Information Guide at p. 2). According to the Guide, the "UZI" rifles listed in section 12276 are manufactured by "IMI," and can be identified by a marking indicating "UZI" on the side of the receiver (Information Guide at p. 33). The Guide specifically states, "Caution must be used in identifying [Category 1] assault weapons because of the ease in which their appearance may be altered with attachments or different types of stocks; however, removing a characteristic does not change a firearm's status as a Category 1 assault weapon" (Information Guide at p. 2). In other words, regardless of the attachments, if a weapon's receiver is marked "IMI UZI," it is a Category 1 assault weapon. Detective Mersereau, who testified as an expert on assault weapons, stated that the only requirement for deeming a weapon to be a Category 1 UZI assault weapon is that the receiver be stamped "IMI UZI." Both of the UZI receivers recovered in this case were stamped "IMI" and "UZI," and therefore qualified as assault weapons, regardless of whether there was only one barrel. We are satisfied that the evidence was sufficient to support appellant's conviction on counts 2 and 3, counts 11 and 12, and counts 16 and 17.
DISPOSITION
The conviction on count 6, possession of body armor, is reversed. The trial court is directed to vacate the sentence on count 6. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, Acting P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.