Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR022752.
BLEASE, Acting P. J.
Defendant appeals from the judgment after a jury found him guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); Ct. 2) and possession of ammunition by a felon. (§ 12316, subd. (b)(1); Ct. 3.) He admitted having served seven prior prison terms (§ 667.5, subd. (b)) and was sentenced to a prison term of six years.
All further section references are to the Penal Code unless otherwise specified.
Defendant was charged with and acquitted of attempted arson. (§ 455; Ct. 1.)
On appeal, he contends the evidence is insufficient to support the verdicts on both counts and the trial court committed instructional error by declining to instruct on the defense of momentary possession and by giving an instruction on consciousness of guilt.
We find no error and shall affirm the judgment.
FACTUAL BACKGROUND
Sometime around the end of August 2005, defendant moved into a mobile home with Tammy Johnson and her two daughters. The mobile home, located on the outskirts of Doyle in Lassen County, shared a dumpster with the occupants of a nearby apartment complex. The dumpster was located midway between the two structures among some bushes.
When defendant’s father passed away, his father left him a number of firearms and some ammunition and Tammy’s mother, Patricia Johnston, agreed to store the arms and ammunition at her house in Doyle. At the same time they moved into the mobile home, defendant and Tammy transported several rifles and two boxes of ammunition from a storage facility in Oroville to Patricia’s home in Doyle. Defendant brought the contraband inside and placed it in the bedroom. He brought two pistols to her house in October, which he left at her house. He returned to Patricia’s house sometime around Halloween and took all of the firearms and ammunition with him because, as he told her, he wanted to clean the firearms and then sell everything except one gun, which he wanted to keep. He returned to the mobile home and placed the firearms and the ammunition in the tool room.
On November 9, 2005, as a result of a family altercation, the Lassen County Sheriff’s Department was summoned to the mobile home and Deputy John Bohl responded, arriving at the scene at approximately 6:00 p.m. When Bohl spoke to Tammy, who was standing with her mother and step-father and a cousin, he asked her, among other things, whether there were any guns in the mobile home and she indicated there were. She suggested a couple of locations as to where he might find them and gave him permission to search her home.
Before searching the home, Bohl asked defendant if there were guns in the residence and he told Bohl there were none. Bohl conducted a cursory sweep of the residence, found no guns, and took defendant into custody. Following their departure, Deputy Spaulding conducted a more thorough search of the residence with the assistance of Tammy and her parents.
Defendant admitted to Bohl that he had become angry with Tammy and Jackie and as a result, he tore up Jackie’s room, threw gasoline on Tammy’s car, and threatened to burn down the mobile home and its contents.
During that search, Spaulding recovered two handguns and two boxes of ammunition from the clothes dryer. He also recovered three rifles and two air-rifles from inside the dumpster after Patricia advised him that she and her husband had seen defendant make two trips to the dumpster earlier that evening and put something in it.
At trial, the Johnstons identified the firearms introduced as exhibits (two rifles, a shotgun, two pistols, and two air-rifles) as the same ones defendant brought to their house.
The parties stipulated that defendant had been convicted of a felony.
Defense
Defendant took the witness stand and testified that while he owned the firearms and ammunition because he had inherited them from his father, he never possessed any of it and did not hide any firearms in the dumpster the evening of November 9th.
Defendant explained that the first time he became aware of the rifles and ammunition was when he drove his father’s motor home to Tammy’s storage unit in Oroville. As he was unloading the contents of the home into the storage unit, he found guns and ammunition in one of the closets. He yelled at his father for placing him in danger of imprisonment for possession of those guns and then left after telling his father he could unload the motor home himself.
On August 10, 2005, defendant and Tammy moved from Oroville to Doyle. They loaded most of their belongings onto a U-Haul truck, which defendant drove to their residence. Tammy put the firearms and ammunition into her car and drove directly to her mother’s house where she left them. Tammy’s mother subsequently sold two of the rifles.
Defendant’s father died in September 2006, leaving him all of his worldly goods, including the firearms and ammunition. Many of those things were stored in his father’s trailer truck and the task of disposing of those things fell on defendant. However, defendant enlisted the assistance of a John Posey who found the two pistols in the trailer and defendant directed him to place them in his toolbox and to lock it because defendant did not want to be around them. Later, Posey placed the pistols in Tammy’s aunt’s car for delivery to Tammmy’s mother and the last time defendant saw the pistols was at Patricia Johnston’s house.
DISCUSSION
I.
Defendant contends the evidence is insufficient to support the verdicts on both counts because it fails to show he had actual or constructive possession of the firearms or the ammunition. Respondent contends there is substantial evidence of possession.
We agree with respondent. Although defendant recites the correct standard of review, his discussion of the evidence improperly focuses on defense evidence that he carefully avoided any actual possession and that he exercised control over the contraband only to the extent necessary to dispose of them.
In reviewing the sufficiency of evidence on appeal, the court must review the “entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- that would support a rational trier of fact in finding the [defendant guilty] beyond a reasonable doubt." (People v. Lewis (2001) 25 Cal.4th 610, 642; see People v. Johnson (1980) 26 Cal.3d 557, 578.)
Defendant was charged with unlawfully owning, possessing, or having custody or control of a firearm by a person convicted of a felony (§ 12021, subd. (a)(1) and unlawfully owning, possessing, or having custody or control of ammunition by a person convicted of a felony. (§ 12316, subd. (b)(1).) The jury was instructed under the theory that defendant possessed at least one firearm and ammunition.
The elements of the offense proscribed by section 12021 include (1) conviction of a felony, (2) ownership, possession, custody or control of a firearm, (3) general intent to commit the proscribed act (People v. Jeffers (1996) 41 Cal.App.4th 917, 922-923) and (4) knowledge of the presence and contraband nature of the object. (People v. DePriest (2007) 42 Cal.4th 1, 49; People v. Mendoza (1967) 251 Cal.App.2d 835, 843.)
Although defendant testified that he owned the firearms and ammunition because he inherited these items from his father, the trial court found this was not an ownership case because there was no evidence ownership had been transferred to defendant. The prosecution argued to the contrary in the trial court but takes no such position on appeal. We therefore address the question whether there is substantial evidence of possession.
Possession may be established by evidence the defendant had the right to exercise dominion and control over the proscribed object even if possession is for a limited time and purpose. (People v. Redrick (1961) 55 Cal.2d 282, 285; People v. Booker (1978) 77 Cal.App.3d 223, 225.)
The evidence established that defendant took possession of his father’s firearms and ammunition in August 2005 when he and Tammy took the rifles and some ammunition to Patricia Johnston’s house and placed it in her bedroom. A few months later, he brought two pistols to the Johnston home and returned a few weeks later to retrieve all of the firearms and ammunition. His stated intention was to clean and sell everything except one gun, which he wanted to keep. He placed all of the contraband into his pickup truck and transported it all to the mobile home. Then on November 9th, he attempted to conceal these items from law enforcement by placing the pistols and ammunition in the clothes dryer and the larger firearms in the dumpster.
This evidence clearly establishes that defendant intentionally exercised dominion and control over the firearms and ammunition for his own purpose, for a significant period of time, and with knowledge of the contraband nature of the objects. (People v. Booker, supra, 77 Cal.App.3d at p. 225.) We therefore reject defendant’s challenge to the sufficiency of the evidence.
II.
Failure to Give a Requested Instruction on Momentary Possession of a Firearm
Defendant contends his state and federal rights to due process and trial by jury were violated when the trial court refused to give a defense-requested modified version of CALCRIM No. 2511 that momentary possession of a firearm is not unlawful. Respondent counters that the evidence did not support the requested instruction. We agree with respondent.
Defense counsel requested CALCRIM No. 2511 arguing that according to the prosecution’s witnesses, defendant was attempting to dispose of the firearms by selling them. The court refused to give the instruction reasoning that according to defendant’s testimony, he never physically possessed the weapons and the prosecution’s evidence failed to meet the threshold for the defense. The trial court was correct.
CALCRIM No. 2511 states in pertinent part: “[If you conclude that the defendant possessed a firearm, that possession was not unlawful if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that:
In People v. Mijares (1971) 6 Cal.3d 415, the California Supreme Court first applied the defense of momentary possession to a charge of possession of heroin. (Former Health & Saf. Code, § 11500; Stats. 1970, ch. 1098, § 1, p. 1945.) There the defendant reached into a parked car and removed a packet of heroin and related paraphernalia from the pocket of a friend who had overdosed on heroin. He threw the packet into a field, drove his friend to a nearby fire department to get medical assistance, and waited for the police to arrive. After law enforcement officials recovered the contents of the packet from the field and determined its contents, the defendant was arrested for possession of heroin. (Id. at pp. 417-418.) The question on appeal was “whether the act of handling a narcotic for the sole purpose of disposal constitutes ‘possession’ within the meaning of section 11500.” (Id. at p. 417.) Answering that question in the negative, the Supreme Court reversed the conviction and held that the trial court had a sua sponte duty to instruct the jury that “the possession prohibited by section 11500 of the code does not include merely handling for only brief moments prior to abandoning the narcotic.” (Id. at p. 423.)
The court reasoned that “actual abandonment of an object terminates possession thereof” and therefore “[i]t would be incongruous to adhere to cases declaring that abandonment concludes an existing narcotic possession and then hold that during the brief moment involved in abandoning the narcotic, a sufficient possession which did not previously exist somehow comes into being to support a conviction for possession of contraband.” (Mijares, supra, 6 Cal.3d at p. 422.) The court concluded that a contrary rule “could result in manifest injustice to admittedly innocent individuals.” (Ibid.)
Three decades later, the Supreme Court clarified that the rule in Mijares “applies only to momentary or transitory possession of contraband for the purpose of disposal . . . .” (People v. Martin (2001) 25 Cal.4th 1180, 1191-1192.) The question whether this defense applies to a charge under section 12021, subdivision (a)(1) has not been definitively decided.
In so holding, the court in Martin disapproved People v. Cole (1988) 202 Cal.App.3d 1439, in which the Second District held that “‘possession of illegal drugs solely for the purpose of disposal does not constitute unlawful possession,’" and the defense recognized in Mijares “‘is not limited to possession for “brief moments” only.’" (Martin, supra, 25 Cal.4th at p. 1182, quoting People v. Cole, supra, 202 Cal.App.3d at p. 1445.)
In People v. Pepper (1996) 41 Cal.App.4th 1029, this court held that the defense of momentary possession does not apply to such a charge. (Id. at p. 1038.) The Sixth District reached a contrary result in People v. Hurtado (1996) 47 Cal.App.4th 805 at pages 813 through 815 (Hurtado), which was approved by the Supreme Court in Martin, supra, 25 Cal.4th 1180.
The court in Martin granted review to clarify the nature and scope of the defense of transitory possession for disposal. In so doing, the court stated, “[w]e agree with the Hurtado court that recognition of a ‘momentary possession’ defense serves the salutary purpose and sound public policy of encouraging disposal and discouraging retention of dangerous items such as controlled substances and firearms.” With respect to its application to firearms, the Martin court phrased its holding broadly, stating “that the defense of transitory possession devised in Mijares applies only to momentary or transitory possession of contraband for the purpose of disposal . . . .” (Martin, supra, 25 Cal.4th at p. 1191, italics added.)
We need not dwell on the legal issue however, because assuming as we do that the defense of temporary possession is applicable to a charge under section 12021, the instruction is not warranted where as here the defendant’s possession was neither momentary nor for immediate disposal.
In Hurtado, supra, 47 Cal.App.4th 805, the court held that an instruction on the momentary possession defense was properly refused because the defendant exercised dominion and control over a gun and four bullets for somewhere between two to four days while he decided how to dispose of the items. In so holding, the court reasoned that the defendant maintained “control over the gun for at lest two days, during which time he loaded the weapon and was free to use it in any way he saw fit. Defendant’s conduct in continuing to maintain dominion and control over the weapon for days vitiated any initial entitlement to a temporary possession for disposal defense to the felon in possession of a firearm charge.” (Id. at p. 814.)
Hurtado is dispositive. Defendant’s testimony did not raise the defense because he testified that he was never in possession of either the firearms or the ammunition. The prosecution’s evidence did not raise the defense because it showed (1) defendant had possession of the arms and ammunition for about two weeks - from the time he picked them up from the Johnston home around Halloween to November 9 when Deputy Bohl seized them - and (2) defendant’s purpose in retrieving the arms from the Johnston home was to keep one of the guns for himself and sell the rest of them and the ammunition.
The temporary possession defense does not apply where as here, the defendant merely has the “‘intent’ to dispose” of firearms but exercises dominion and control over those arms for more than a fleeting period of time. (Hurtado, supra, 47 Cal.App.4th at p. 814.) As defendant exercised dominion and control over the firearms and ammunition for over a week for the purpose of sale, we conclude the trial court properly refused the instruction.
III.
Consciousness of Guilt Instruction
Defendant contends the trial court prejudicially erred in giving CALCRIM No. 371 on consciousness of guilt because this instruction is inapplicable where the defendant’s acts of suppression and fabrication of evidence were committed before the police arrived and arrested him. Respondent argues that this contention has no merit and that defendant’s claim is unsupported by any authority. We agree with respondent.
The trial court instructed the jury in accordance with CALCRIM No. 371 that “[i]f the Defendant tried and if you find the Defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the Defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”
In overruling defendant’s objection to this instruction, the trial court found evidentiary support for it in (1) testimony that defendant hid the guns in the dumpster, (2) the inference that defendant hid the handguns and ammunition in the clothes dryer and (3) Jackie’s testimony that defendant told her not to say anything about the guns.
The California Supreme Court has repeatedly affirmed the propriety of giving consciousness of guilt instructions in accordance with former CALJIC Nos. 2.04 and 2.06, the predecessors to CALCRIM No. 371, alternative A. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102 [approving CALJIC Nos. 2.04 and 2.06] (Coffman).) These instructions are proper where there is “some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference.” (Coffman, supra, 34 Cal.4th at p. 102; People v. Jackson (1996) 13 Cal.4th 1164, 1222-1225 [approving CALJIC Nos. 2.04, 2.06]; People v. Johnson (1992) 3 Cal.4th 1183, 1235-1236 [approving CALJIC No. 2.06].)
As stated in Coffman, supra, at pages 101-102, CALJIC No. 2.04 provided: "If you find that a defendant attempted to or did persuade a witness to testify falsely or attempted to or did fabricate evidence to be produced at the trial, such conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your determination."
Because CALJIC Nos. 2.04 and 2.06 instruct the jury “to infer a consciousness of guilt only if it first found from the evidence that defendant[] had engaged in the described conduct, and further informed the jury such evidence was not, in itself, sufficient to prove guilt, the instructions properly guided the jury's consideration of the evidence and did not lessen the prosecution's burden of proof.” (Coffman, supra, 34 Cal.4th at p. 102.) The jury is similarly instructed under CALCRIM No. 371.
Defendant cites no authority to support his position that CALCRIM No. 371 or any other instruction on consciousness of guilt applies only to post-arrest or post-charging conduct. In his reply brief he argues that items are not evidence until the defendant is arrested and charges are filed. We disagree with defendant’s hyper-literal interpretation of the instruction.
The trial court’s instructions direct the jury on how to evaluate and view the evidence admitted at trial. From that perspective, testimony that defendant attempted to hide the firearms is evidence and it is well established that evidence the defendant attempted to hide contraband from the police is suggestive of a guilty mind or a consciousness of guilt. (See People v. Tripp (2007) 151 Cal.App.4th 951, 957; People v. Rider (1955) 130 Cal.App.2d 353, 355 [attempt to hide murder weapon and other circumstances arising prior to arrest “all indicated a consciousness of guilt”]; People v. MacCagnan (1954) 129 Cal.App.2d 100, 105 [“Attempts to . . . to conceal from an arresting officer a contraband object in his possession are pertinent proofs of a guilty mind”].) As there was evidence to support giving CALCRIM No. 371, alternative A, we find it was properly given.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.
1. (He/She) possessed the firearm only for a momentary or transitory period;
2. (He/She) possessed the firearm in order to (abandon[,]/ [or] dispose of[,]/ [or] destroy) it; [¶] AND
3. (He/She) did not intend to prevent law enforcement officials from seizing the firearm.
The defendant has the burden of proving each element of this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each element of the defense is true. If the defendant has not met this burden, (he/she) has not proved this defense.]”
CALJIC No. 2.06 provided: "If you find that a defendant attempted to suppress evidence against himself or herself in any manner, such as by the intimidation of a witness, by destroying evidence [or] by concealing evidence, such attempts may be considered by you as a circumstance tending to show a consciousness of guilt. However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration."