Opinion
2d Crim. No. B228233 Super. Ct. No. YA076581
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. GEORGE JACKSON, Defendant and Appellant.
Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
George Jackson appeals his conviction, by jury, of two counts of burglary (Pen. Code, § 459) and one count of possession of ammunition by a felon. (§ 30305, subd. (a)(1), formerly § 12316, subd. (b)(1).) Charges of grand theft of a firearm (§ 487, subd. (d)(2)) and possession of a firearm by a felon (§ 29800(a)(1), formerly § 12021, subd. (a)(1)) were dismissed by the trial court in the interests of justice (§ 1385) after the jury was unable to reach a verdict on them. The trial court sentenced appellant to eight years and four months in state prison. He contends the trial court's instructions to the jury did not adequately explain that the offense of possession of ammunition is a specific intent crime requiring the mental state of knowledge. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Effective January 1, 2012, former section 12316, subdivision (b)(1) was repealed and replaced without substantive change by section 30305, subdivision (a)(1). (Stats. 2010, ch. 711, §4 [repealed], Stats. 2010, ch. 711, § 6 [reenacted].) Similarly, section 12021, prohibiting possession of a firearm by a felon, was repealed and replaced without substantive change by section 29800. (Stats. 2010, ch. 711, §4 [repealed], Stats. 2010, ch. 711, § 6 [reenacted].)
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Facts
On November 11, 2009, deputies from the Los Angeles County Sheriff's Department conducted a surveillance of Ramon Pettis, whom they believed to have committed several burglaries. Detectives followed Pettis as he drove his silver BMW from his home in Los Angeles to a residence in Bellflower where he picked up appellant. The officers then followed Pettis and appellant to a residential neighborhood in Gardena. On several occasions, Pettis would stop, park and then resume driving. At times, appellant would exit the car and look around before the pair resumed driving. At one point, Pettis drove into a parking lot and sat there for about 20 minutes. He was alone in the car at the time. Pettis eventually left the parking lot and double parked in front of a house on Budlong Street. One of the sheriff's deputies watched as appellant walked out of the house carrying a television. Appellant placed the television in the trunk of the BMW and got into the passenger seat. As Pettis sped away, the trunk popped open and the television fell out onto the street. The BMW did not stop. Both men were arrested by other sheriff's deputies a few minutes later. A flat screen television and a Sony Playstation were found in the backseat of the BMW. Pettis had $203 in one-dollar bills in his pockets. A search of the trash barrel in the parking lot uncovered a stolen safe containing several boxes of ammunition and a Social Security card.
Shortly before the arrests, Emanuel Pope, who lived in the neighborhood, saw a black male trying to climb down from a retaining wall bordering Pope's property. When Pope shouted at him, the man ran away. A few hours later, Pope found wads of cash and a sock near the retaining wall. Police eventually recovered $1060 in cash from the area.
Chad Hirano and Michio Takemoto lived in the same neighborhood. That morning, they locked up their house before leaving for work. Takemoto returned at 3:00 p.m. and saw that the back door had been kicked in; a shoe print was visible on the door. Hirano's room had been ransacked; a safe kept in his closet was missing. In the safe, Hirano kept $200 in one dollar bills, ammunition, a ring and his Social Security card.
Another resident of the neighborhood was burglarized that day. Angel Partida locked his doors when he left that morning, but left a kitchen window open a crack. When he returned, he saw that the window was wide open and the screen was off. Two televisions and a Playstation were missing from the house. A safe that Partida kept in his bedroom had been pried open and $1,300 in cash had been taken from it. A handgun and ammunition were also missing from the bedroom.
When questioned by police, appellant admitted that he and Pettis committed two burglaries that day. Appellant said that he took a television and Playstation from Partida's house but he denied ever taking a firearm.
Jury Instructions
The trial court instructed that jury that, to prove appellant violated section 30305, subdivision (a)(1), "the People must prove that: [¶] 1. The defendant (possessed/had under his custody or control) ammunition; [¶] 2. The defendant knew he (possessed/had under his custody or control) the ammunition; [¶] AND [¶] 3. The defendant had previously been convicted of a felony." (CALCRIM No. 2591.) It further instructed the jury: "The crimes charged in Counts 1, 2, 3, 4 and 5 require proof of the union, or joint operation, of act and wrongful intent. [¶] The following crimes require[] general criminal intent: Possession of a Firearm by a Felon as charged in Count 4 and Possession of Ammunition as Charged in Count 5. For you to find a person guilty of these crimes, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose, however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime. [¶] The following crimes require a specific intent or mental state: 1st Degree Residential Burglary as charged in Counts 1 and 2; Grand Theft Firearm as charged in Count 3. For you to find a person guilty of these crimes, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime." (CALCRIM 252.)
Appellant contends the trial court erred in instructing the jury in terms of CALCRIM 252 because possession of ammunition by a felon is not a general intent crime; it requires the mental state of knowledge. The court should instead have instructed the jury that every crime alleged against appellant required "proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime[s] [of first degree residential burglary, grand theft firearm, possession of a firearm by a felon and possession of ammunition by a felon], that person must not only intentionally commit the prohibited act . . . , but must do with a specific . . . (mental state). The act and the specific . . . (mental state) required are explained in the instruction for [each] crime . . . ." (CALCRIM 251.)
Appellant's argument fails because the trial court correctly instructed the jury that possession of ammunition by a felon is a general intent crime. As the court explained in People v. Jeffers (1996) 41 Cal.App.4th 917, with regard to the analogous offense of possession of a firearm by a felon, "No specific criminal intent is required for this crime; general intent to commit the proscribed act is sufficient to sustain a conviction. [Citations.] The act proscribed by section 12022, subdivision (a) is possession of a firearm. Therefore, whether possession is actual or constructive, it must be intentional. [¶] Wrongful intent must be shown with regard to the possession and custody elements of the crime . . . . [Citation.] A person who commits a prohibited act 'through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence' has not committed a crime. (§ 26.) Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent." (Id. at p. 922.)
In Jeffers, supra, the trial court failed to instruct the jury regarding the general intent required to commit the offense of firearm possession by a felon. (Id. at p. 923.) It provided no instruction whatsoever defining the requisite mental state. Because there was some evidence that the defendant did not know a package he delivered to a gun shop actually contained a firearm, the court of appeal held the failure to instruct the jury on general intent compelled reversal. (Id. at p. 925.)
Here, by contrast, the trial court instructed the jury that the offense of possession of ammunition by a felon required proof that the defendant "knew he (possessed/had under his custody or control) the ammunition[.]" (CALCRIM No. 2591.) It further instructed the jury that defendant could be found guilty of the offense only if it also found that he possessed the ammunition, "with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose, however, it is not required that he or she intend to break the law." (CALCRIM NO. 252.) Thus, the trial court here gave the instruction defining general intent that was omitted in Jeffers, supra. The jury was properly informed that appellant's possession had to be knowing, rather than unaware or accidental. There is no reasonable likelihood the jury misunderstood that requirement. (People v. Kelly (1992) 1 Cal.4th 495, 525.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
Steven Van Sicklen, Judge
Superior Court County of Los Angeles
Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.