Opinion
F049699
12-12-2006
THE PEOPLE, Plaintiff and Respondent, v. JOSE RIGOBERTO LEMUS, Defendant and Appellant.
Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jose Rigoberto Lemus challenges his convictions on the basis of evidentiary and instructional error. He also challenges a portion of his sentence as unauthorized. We reject his challenges to his convictions, but will correct the unauthorized portion of his sentence.
FACTUAL AND PROCEDURAL SUMMARY
On August 9, 2005, Sheriffs Deputy Jaime Loredo responded to a domestic disturbance call in the city of Orange Cove. While speaking with Loredo, the victim pointed out a vehicle she believed was being driven by the suspect. Loredo broadcast a description of the suspect and the vehicle.
Loredo followed the vehicle, a blue 1990 Chevrolet Lumina (the Chevy), and saw it pull into an apartment complex. At the same time, Deputy Christopher Stearns had been watching for the suspect and vehicle and spotted it pulling into the apartment complex. Stearns parked in front of the Chevy and got out of the patrol car.
Lemus got out of the Chevy and began walking away. Loredo asked Lemus to walk toward him. While Loredo spoke with Lemus, Stearns discovered the car had been reported stolen.
Loredo searched the area where Lemus had been walking and found a small black coin purse. Inside the coin purse was . 334 grams of marijuana and .44 milligrams of methamphetamine. Both quantities were usable amounts. Lemus told the deputies the coin purse belonged to him; he had found it; and he was looking to throw it away when the deputies approached him because he knew it contained drugs.
After Lemus was given the advisements pursuant to Miranda v. Arizona (1966) 384 U.S. 436, he told the deputies that he purchased the Chevy for $300 from a man named "Jay" who lived in Orange Cove. Lemus did not know Jays last name or his address. Lemus also stated he still owed Jay $200 for the car, which is why he did not have a receipt or any other paperwork as evidence of the sale and purchase. Lemus later changed his statement and claimed he had not purchased the car, but was test driving it to see if he wanted to purchase it.
When deputies inspected the Chevy, they found that the ignition was broken and, although there were no keys in the car, the engine was running. Lemus claimed he had never received keys to the car and that he had owned another vehicle that had a broken ignition.
Lemus was charged with receiving stolen property, transportation of a controlled substance, possession of a controlled substance, and possession of less than 28.5 grams of marijuana.
At trial, Lemus sought to introduce the testimony of Jennifer Swain, an investigator, to testify that she had attempted to locate a person by the name of Jason Gomez in Orange Cove, was unable to locate this person, and discovered that he was incarcerated. Defense counsel stated, "my clients been telling me from day one this guy sold him the car." The prosecution objected on the basis that the evidence established Lemus claimed to have bought the Chevy from a man named Jay. There was no evidence establishing that Jason Gomez of Orange Cove was "Jay." The trial court ruled that the proposed testimony assumed facts not in evidence and was inadmissible.
Lemus also sought to present testimony from Jesse Gomez, who was subpoenaed but failed to appear. Jesse Gomez is the father of Jason Gomez. The defense expected Jesse Gomez to testify that Jason Gomez "does go by Jay and that Jay lived with [Jesse Gomez]" and that "[Jason] did have vehicles in the backyard and he live[d] in Orange Cove." The prosecution objected on the basis that it had not been established that Jason Gomez was "Jay" and that he had sold a car to Lemus. The trial court found the proffered testimony "to be not relevant."
A jury convicted Lemus of receiving stolen property, possession of a controlled substance, and possession of less than 28.5 grams of marijuana. The jury was deadlocked on the charge of transportation of a controlled substance. The trial court dismissed that charge. At sentencing, the trial court imposed a term of imprisonment and suspended Lemuss drivers license pursuant to Vehicle Code section 13357.
DISCUSSION
Lemus challenges his convictions on two grounds — evidentiary and instructional error. He contends the trial court erred when it denied his request to have Jesse Gomez and Swain testify. Lemus also argues the trial court should have instructed the jury with CALJIC No. 12.06 (transitory possession) sua sponte, and it erred in refusing to instruct with CALJIC No. 4.45 (accident or misfortune). He also challenges his sentence, contending that the suspension of his drivers license constituted an unauthorized sentence.
I. Evidentiary Error
Lemus did not call Jason Gomez as a witness. Instead, he sought to admit testimony from Swain and Jesse Gomez to prove that "Jay" existed and that he was unavailable as a witness.
A witness is not unavailable unless there has been a good faith effort to obtain the presence of the witness at trial. (Ohio v. Roberts (1980) 448 U.S. 56, 74.) Whether a proponent of testimony exercised due diligence is evaluated based upon whether the proponent took reasonable steps to secure the presence of the witness at trial. (Ibid.) The proponent of the evidence must prove unavailability by a preponderance of the evidence. (People v. Turner (1990) 219 Cal.App.3d 1207, 1213.)
The record, however, discloses no evidence of any attempt to secure Jason Gomezs presence at trial. Therefore, Lemus failed to satisfy his burden of proving that Jason Gomez was unavailable to testify.
Additionally, the proposed testimony of Swain and Jesse Gomez was not relevant. It was mere speculation. Only relevant evidence is admissible in a case. (Evid. Code, § 210.) A trial courts ruling on relevance and admissibility is reviewed for abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 578.)
Lemus could not identify Jays last name or address. He did not identify Jason Gomez as the man from whom he allegedly purchased the Chevy. Neither Swain nor Jesse Gomez could state that Jason Gomez sold Lemus the Chevy. Thus, any testimony that Jason was called "Jay" and that he had cars was not relevant. On these facts, we cannot conclude that the trial court abused its discretion in excluding the testimony of Swain and Jesse Gomez.
We also reject Lemuss contention that the trial courts exclusion of the testimony of these witnesses deprived him of the opportunity to present a defense, thereby infringing on his constitutional rights. The trial courts ruling was a restriction on evidence, not a wholesale exclusion of defense evidence. A restriction on evidence does not infringe on a defendants constitutional rights. (People v. Frederick (2006) 142 Cal.App.4th 400, 412.)
II. Instructional Error
Transitory possession
Lemus contends the trial court had a sua sponte duty to instruct the jury with CALJIC No. 12.06 (transitory possession).
In order to warrant instructing with CALJIC No. 12.06, the possession must be momentary and strictly for the purposes of disposal. (People v. Martin (2001) 25 Cal.4th 1180, 1191-1192.) The defense of transitory possession does not apply when a defendant retains possession with the intent to dispose of the contraband at a later point in time. (Ibid.) The possession must be fleeting and instantaneous. (Id. at pp. 1192-1193.)
Lemus claimed he found the coin purse. Counsel stated at one point that Lemus "found" the coin purse in the Chevy when he obtained possession of the Chevy. If true, then Lemus was in possession of the coin purse for at least two days by his own admission. He retained possession for a period of time, stating to the deputies that he intended to dispose of the contraband at a later point in time. He threw away the coin purse only when approached by the deputies.
Thus, Lemuss possession of the contraband in the coin purse was more than fleeting and instantaneous. Under the circumstances, the trial court was not required to instruct sua sponte with CALJIC No. 12.06 because the facts did not support the defense set forth in that instruction.
Accident and misfortune
Lemus requested that the jury be instructed with CALJIC No. 4.45 (accident or misfortune). He argued that he "came upon this, mainly the drugs and the vehicle, not knowing they were stolen."
Penal Code section 26, subdivision Five, provides that a person is not capable of committing crimes when the charges stem from an act or omission "through misfortune or by accident, [and] when it appears there was no evil design, intention, or culpable negligence." CALJIC No. 4.45 is designed to instruct on the principles set forth in Penal Code section 26, subdivision Five. (Com. to CALJIC No. 4.45 (Fall 2006 ed.) p. 175.)
A trial court has a duty to instruct regarding a defense when there is substantial evidence supporting the defense and it appears the defendant is relying on the defense. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389.) Although Lemus claims he was relying on this defense, there was no substantial evidence to support it.
The evidence established that Lemus had no documentation to show he had purchased the Chevy, intended to purchase the Chevy, or that he had lawful possession of the Chevy. He did not have any keys to the vehicle, and the ignition had been damaged. Lemus also gave two different versions of the circumstances surrounding his possession of the vehicle to the deputies. He could not provide any details regarding his obtaining possession of the vehicle when questioned by deputies. Even Lemus acknowledged that his own family and friends told him the vehicle had to be stolen because of the condition of the ignition. Further, when Lemus told the deputies that he found the coin purse and drugs, he could not tell them where he had purportedly found the items. He also claimed at one point to be the owner of the coin purse.
Neither the physical evidence nor Lemuss statements provided any credible substantial evidence that would support an accident or misfortune instruction, and the trial court therefore did not err in refusing to issue the instruction.
Regardless, any failure to issue the instruction was not prejudicial. The only evidence to support an innocent possession and lack of intent were the self-serving statements of Lemus, which contentions the jury clearly rejected when it returned its verdicts. (People v. Corning (1983) 146 Cal.App.3d 83, 88-89.)
III. Illegal Sentence
Lemus contends the trial courts suspension of his drivers license constitutes an unauthorized sentence. The People concede the point.
At sentencing, the trial court ordered Lemuss driving privileges suspended pursuant to Vehicle Code section 13357. While this code section does provide for the suspension of driving privileges of a person convicted of violating Vehicle Code section 10851, Lemus was not so convicted. Lemus initially was charged with a violation of Vehicle Code section 10851, subdivision (a), but the charge was dismissed.
Therefore, the suspension of Lemuss driving privileges constitutes an unauthorized sentence, which this court can correct. (People v. Espinoza (1983) 140 Cal.App.3d 564, 566-567.) We will direct the suspension of driving privileges be stricken, and that the trial court notify the appropriate agencies.
DISPOSITION
The suspension of Lemuss driving privileges pursuant to Vehicle Code section 13357 is stricken. The trial court is directed to notify the appropriate agencies. In all other respects, the judgment is affirmed.
We Concur:
WISEMAN, Acting P.J.
DAWSON, J.