Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F077A.
HULL, Acting P. J.
Defendant Francis Charles Kelly was charged with cultivating marijuana (Health & Saf. Code, § 11358 (count one)), possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a) (count two)), and felony possession of a short-barreled shotgun (Pen. Code, § 12020, subd. (a)(1) (count three); undesignated statutory references that follow are to the Penal Code), and alleged to have been personally armed with a firearm. Count two was dismissed for insufficient evidence on the People’s motion. The jury acquitted defendant on count one and the firearm allegation, acquitted defendant of felony possession of a short-barreled shotgun, and convicted him of misdemeanor possession of a short-barreled shotgun as a “lesser included offense.” The court placed defendant on two years’ probation.
On appeal, defendant contends the court erred in allowing the jury to convict him of misdemeanor possession of a short-barreled shotgun after acquitting him of the felony offense, there was insufficient evidence to support his conviction, and the court did not specify the statutory basis for various fines and fees imposed. We affirm the judgment and remand for a clarification of the statutory basis for the fines and fees.
Facts and Proceedings
In August 2007, Trinity County sheriff’s deputies executed a search warrant on a property owned by defendant. The property included a main residence, a smaller secondary residence, and a marijuana garden. Defendant was not present during the raid. An officer testified that he had been to the property and had seen defendant there.
A deputy knocked on the front door of the main residence. He was met by codefendant Barbara King-Henry, who said no one else was in the building. King-Henry cooked for the group there. She and her husband lived in the smaller residence on the property.
The main residence was searched. One bedroom was locked, and King-Henry did not have a key. The door was forced open and the bedroom was searched. Numerous firearms were found in the bedroom, including a Remington model 1100 semiautomatic shotgun.
The sergeant who searched the bedroom was familiar with shotguns, and thought the shotgun was too short when he found it. The barrel was measured, and found to be 17.5 inches long. The shotgun was placed into evidence.
Five framed photographs were on the bedroom wall. Defendant was in two of the photographs, a photograph of five people, and a photograph of defendant and another person.
Discussion
I
Substantial Evidence Supports the Conviction
Section 12020, subdivision (a)(1), makes it illegal to possess a short-barreled shotgun, which includes “[a] firearm which is designed or redesigned to fire a fixed shotgun shell and having a barrel or barrels of less than 18 inches in length.” (§ 12020, subd. (c)(1)(A).) The People “must prove the possessor’s knowledge of the weapon’s illegal characteristics” and the jury must be instructed on this element of the offense. (People v. King (2006) 38 Cal.4th 617, 620.) However, “the defendant need not know the [firearm’s] actual dimensions.” (Id. p. 627.)
Defendant argues there was insufficient evidence to support a finding that he possessed the shotgun or knew it was illegal. We disagree.
“Where there is a claim of insufficient evidence, ‘we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence --evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.] ‘Unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict” the conviction will not be reversed. [Citation.]’ [Citation.] We apply the same standard to convictions based largely on circumstantial evidence. [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.)
Defendant owned the property and was seen on it. The two people found on the property did not live in the residence where the shotgun was found, and the weapon was in a locked bedroom which King-Henry could not open. Pictures of defendant with other people were found hanging on the bedroom wall.
Actual or constructive possession occurs when the accused has a right to control the contraband or has dominion and control over the place where it is found. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) The evidence supports an inference that the room where the shotgun was found belonged to defendant. Since the bedroom was locked and King-Henry did not have a key, the jury could infer that defendant, the owner of the property, exercised exclusive control over the weapon found in his bedroom.
The evidence also supports a finding that defendant knew the weapon was illegal. Since the gun was in defendant’s room, the jury could infer defendant saw it there. Although the deputy had to measure the shotgun to determine if the barrel was too short, he thought that it looked short when it was seized. The jury saw the shotgun, and could determine whether it looked shorter than the 18 inches allowed by law. We will not second guess the jury’s determination.
II
The “Lesser Included Offense” of Possession of a Short-barreled Shotgun
Section 12020, subdivision (a) establishes the offense of illegal possession of a short-barreled shotgun. The crime is a “wobbler, ” punished as a misdemeanor or felony. (Ibid.)
Defense counsel asked the trial court to instruct on misdemeanor possession of a short-barreled shotgun as a lesser included offense of felony possession of a short-barreled shotgun. The trial court agreed, and modified the jury instruction on possession of a short-barreled shotgun (CALCRIM No. 2500) to add the following passage at the end of the instruction: “All of you find the defendant is not guilty of the greater crime as a felony possession of a short-barreled shotgun [¶]... [¶]... you may find him guilty of the lesser crime. The defendant may not be convicted of both the greater and lesser crimes for the same conduct. [¶] [Section] 12020(a)(1), a misdemeanor, possession of a short-barreled shotgun is a lesser crime of 12020(a)(1), a felony, possession of a short-barreled shotgun.”
There is no lesser included offense to possession of a short-barreled shotgun, a single offense which can be punished in one of two ways. The instruction allowed the jury to determine whether the offense would be punished as a misdemeanor or a felony. This was an improper delegation of sentencing discretion, which is a judicial function. (People v. Navarro (1972) 7 Cal.3d 248, 258; § 12.)
The parties differ on the consequence of the error. Since misdemeanor and felony possession of a short-barreled shotgun are the same crime, defendant argues his acquittal on the charged offense of felony possession precludes the jury from convicting him of misdemeanor possession of a short-barreled shotgun. The People assert defendant invited the error and any error is harmless.
“The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a ‘conscious and deliberate tactical choice’ to ‘request’ the instruction.” (People v. Lucero (2000) 23 Cal.4th 692, 723.) “In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
Defense counsel did not state his reasons for requesting the erroneous instruction, but a tactical purpose is readily implied. The lesser included offense instruction was to defendant’s advantage, giving the jury an unwarranted opportunity to extend him leniency. The jury accepted defendant’s offer, and defendant benefitted by avoiding felony punishment.
As we have found in part I of the Discussion of this opinion, the jury, properly instructed, convicted defendant, on sufficient evidence, of possessing a short-barreled shotgun. That is, it found that he committed the substantive crime. The only question left was whether the crime would be punished as a felony or a misdemeanor, which the judge erroneously allowed the jury to decide. Having received the benefit of counsel’s tactical decision, defendant cannot contest the invited error on appeal.
III
Statutory Basis of Fines, Fees and Penalties
The trial court did not identify the statutory basis of various fines and fees. The parties agree the matter must be remanded for the trial court to correct the omission.
The abstract of judgment or order of probation filed by the trial court must “separately list, with the statutory basis, all fines, fees and penalties imposed.” (People v. High (2004) 119 Cal.App.4th 1192, 1201.) We shall direct the trial court to prepare an amended order of probation specifying the statutory basis for every fine and fee.
Disposition
The judgment is affirmed. The trial court is directed to prepare an amended probation order identifying the statutory basis for every fine, fee, and penalty, and to forward copies of the amended order to the relevant authorities.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.