Opinion
F074414
12-07-2018
THE PEOPLE, Plaintiff and Respondent, v. BRADLEY COLE SMITH, Defendant and Appellant.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F15901182, F16900627)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Smith, J. and DeSantos, J.
-ooOoo-
Bradley Cole Smith was convicted of being a felon in possession of a firearm and possessing ammunition while being prohibited from owning a firearm. The court sentenced him to two years on each count, to run concurrently with a four-year sentence imposed at the same time for a probation violation. He now argues that the trial court erred in excluding third-party culpability evidence, and that one of the sentences for the current offenses should have been stayed under Penal Code section 654. We disagree with both contentions and affirm.
FACTS AND PROCEDURAL HISTORY
Deputies executed a search warrant at Carolyn Moreno's house on January 14, 2016. Moreno told them Smith lived in the detached garage, to which only she, Smith, and Smith's sister had keys. In the garage, the deputies found a mattress with bedding, some men's and women's clothing, a lamp, a propane burner, a pot, some food, some booking paperwork bearing Smith's name and photograph, and an envelope bearing Smith's name. Between the mattress and the wall, they found a 20-gauge shotgun, a .22-caliber rifle, and a nylon bag containing about 100 rounds of ammunition. The two guns were wrapped in towels placed inside a bag. The ammunition was of several different types. There were two different gauges of shotgun shells, some .22-caliber ammunition, and two different calibers of handgun ammunition. One handgun round was on a table at the foot of the bed. Smith was on probation in a prior domestic violence felony case at the time. When he was arrested in the current case, he admitted he lived in the garage.
The district attorney filed an information charging Smith in count 1 with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1) ), and in count 2 with possessing ammunition while being prohibited from owning a firearm (§ 30305, subd. (a)(1)).
Subsequent statutory references are to the Penal Code unless otherwise noted.
At trial, Moreno testified that she never said Smith lived in the garage. Instead, he lived in a back room of the house. A deputy who testified authenticated a photograph showing the closet in that back room. It contained women's purses, shoes, and jewelry.
Smith also testified, telling the same story as Moreno, and claiming he knew nothing about the guns and ammunition in the garage. He did not have his own key to the garage. Many of the other items in the garage belonged to his sister. Some bicycle parts there were his, as was the mattress, which he had put out in order to spray it for bedbugs. He put the booking paperwork in the garage for safekeeping.
The jury found Smith guilty as charged. The court imposed a term of four years for the conviction in the prior case. For the current case, the court imposed the middle term of two years on each count, to run concurrently with the sentence in the prior case.
DISCUSSION
I. Third-party culpability evidence
Shortly before the end of the prosecution's case in chief, defense counsel made a request to present third-party culpability evidence. Counsel stated that Moreno's daughter and her boyfriend lived in the house. Some ammunition was found in their room when the house was being searched. The boyfriend was on probation and had been a gang member, but was inactive. In separate interviews, the daughter and the boyfriend were asked if there was anything illegal in the house. Both said they did not know, but if there was, it would belong to Smith. Defense counsel offered to prove these points through one of the deputies and a district attorney investigator. He would also ask them whether the ammunition in the room matched any of the ammunition in the garage, and would recall Moreno and ask if she ever lent the garage key to her daughter. Counsel suggested that the daughter and boyfriend had put the guns and ammunition in the garage, and their remarks pointing to Smith were evidence of their consciousness of their own guilt.
The trial court excluded this evidence, ruling that it was not admissible to prove third-party culpability. Smith now contends that this ruling was error. He is mistaken.
Our Supreme Court has summarized the law on third-party culpability evidence as follows:
"Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence that raises a reasonable doubt as to a defendant's guilt, including evidence tending to show that another person committed the crime, is relevant. But evidence that another person had a motive or opportunity to commit the crime, without more, is irrelevant because it does not raise a reasonable doubt about a defendant's guilt; to be relevant, the evidence must link this third person to the actual commission of the crime. [Citation.] Evidence that is relevant still may be excluded if it creates a substantial danger of prejudicing, confusing, or misleading the jury, or would consume an undue amount of time. (See Evid. Code, § 352.)" (People v. Brady (2010) 50 Cal.4th 547, 558 (Brady).)
The analysis thus has two parts: First, the trial court considers whether evidence is relevant because it links a third party to the actual commission of the crime. Then, if it is relevant, the court considers whether the evidence should still be excluded because it is substantially more prejudicial than probative under Evidence Code section 352. We review the trial court's decision for abuse of discretion. (Brady, supra, 50 Cal.4th at p. 558.)
The trial court reasonably found that the proffered evidence would not connect the daughter or boyfriend to the actual commission of the crime. The notion that they pointed to Smith because they were guilty themselves—and not simply because they suspected Smith of illegal activity—was speculative. A connection between the ammunition in their room and the ammunition in the garage also was speculative. Smith's appellate briefs repeatedly assert that the ammunition in the room was the same kind of ammunition as that found in the garage, but there was no evidence of this, and in fact there were several different kinds of ammunition in the garage. Since the court acted within its discretion in finding the evidence was not relevant because it did not link a third party to the actual commission of the crime, we need not address the Evidence Code section 352 question.
Smith points out that the trial court referred to Evidence Code section 352 at the end of its remarks on this topic and argues that it "abandoned" other rationales it had mentioned before, perhaps suggesting that the court did not find the evidence failed to link the third parties to the actual commission of the crime. What the court actually said at the end of its remarks, however, was that (a) the evidence did not raise a reasonable doubt of Smith's guilt, and (b) the evidence should be excluded under Evidence Code section 352 because it would confuse the jury. This is just a version of the two steps we described above. The court did not abandon its finding that the evidence failed to raise a reasonable doubt. In any event, as there is no indication that the trial court relied on an incorrect legal standard, the only question we need answer to determine whether the court acted within its discretion is whether the ruling is supported by substantial evidence. (Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340.) We need not employ the same rationale as the trial court.
Or, rather, because the boyfriend was, as he was on probation. There was no indication that the daughter was prohibited from possessing firearms or ammunition. --------
Smith also makes a federal constitutional claim based on the exclusion of this evidence, contending that the ruling denied him the opportunity to present a defense and thus denied him due process of law. The ruling was not erroneous, however, and did not result in an unfair trial. The due process claim is without merit.
At several points in his appellate briefs, Smith refers to the excluded third-party culpability evidence as the basis of his sole defense. This is difficult to understand. Smith's primary defense was that he did not live in the garage and thus had no particular association with anything found there. His strategy for presenting this defense was to take the stand and tell the jury of it himself, and to elicit Moreno's testimony in support. His trial counsel did not even think of the third-party culpability approach until the People were nearly finished presenting their case. Counsel conceded that until the last minute, he "did not think there was enough evidence there for me to introduce this defense," but he changed his mind the night before he was to put on his case. The third-party culpability strategy was an afterthought, not Smith's sole defense. II. Section 654
Smith asserts that the sentence on one of the two current offenses should have been stayed under section 654. Section 654, subdivision (a) provides, in part:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
This statute bars multiple punishment not only for a single criminal act, but also for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled on other grounds by People v. Correa (2012) 54 Cal.4th 331, 344.) We review the court's factual finding under the substantial-evidence standard, implicit or explicit, of whether or not there was a single criminal act or a course of conduct with a single criminal objective. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) As always, we review the trial court's conclusions of law de novo. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.)
Smith's contention is that his possession of a gun and ammunition could only be a single indivisible course of conduct with the single objective of possessing a loaded gun. Again, he is mistaken.
The evidence supports the trial court's implicit finding that Smith had more than one objective, and fails to support Smith's assertion that he had only one. Smith was convicted of possessing the .22-caliber rifle. (The information charged him with possessing a rifle specifically; it did not mention a shotgun.) The undisputed evidence was that over 100 rounds of ammunition were found, including some .22-caliber rounds, but also including shotgun shells and handgun rounds. A single objective of possessing a loaded .22-caliber rifle simply could not encompass the act of possessing all that ammunition.
Smith relies on People v. Lopez (2004) 119 Cal.App.4th 132. There, the defendant was searched and a loaded handgun was found on his person. (Id. at p. 135.) He was convicted of a gun possession offense and an offense based on possession of ammunition, and received sentences for each offense. (Id. at p. 137.) The Court of Appeal agreed with his argument that one of the sentences should have been stayed under section 654. It concluded that there was only one criminal objective in possessing the loaded gun, stating:
"To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." (Lopez, supra, 119 Cal.App.4th at p. 138, italics added.)
This case is not comparable. Smith was found guilty of possessing a gun plus 100 rounds of ammunition in a separate bag. None of rounds were in the rifle and many of them could not have been fired by it.
DISPOSITION
The judgment is affirmed.