Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Inyo County. Patrick K. Canfield, Judge. (Retired judge of the Inyo Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super.Ct.No. CRF 06-41121-2
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant Raymond Luke Stone, III, appeals judgment entered following jury convictions for being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 2); and committing misdemeanor violations (§ 148, subd. (a)(1); counts 3 and 4). The jury also found true three prior conviction allegations (§ 667.6). Defendant was acquitted of attempting to obstruct an executive officer from performing his duty (§ 69; count 1). The trial court sentenced defendant to five years in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court committed prejudicial error by giving incomplete and inaccurate jury instructions on the offense of being a felon in possession of a firearm (§ 12021, subd. (a)(1)); by failing to give the jury a written version of the “single witness” instruction, Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 301; and by excluding a portion of witness Margaret Cortez’s proposed testimony as a discovery sanction due to defendant’s failure to name her on his witness list. We conclude the trial court did not commit any prejudicial error and affirm the judgment.
1. Facts
On March 25, 2006, Rachel Moose, a long-time acquaintance of defendant, was driving down defendant’s street, Winuba Lane, when he called her name. Moose stopped in front of his house and defendant asked her for a ride to the store. When Moose realized defendant had been drinking, she declined. While Moose remained in front of defendant’s house talking to defendant’s daughter, defendant asked his son, Dan Stone, for a ride.
Defendant and Dan went to the back of defendant’s house, disappearing from Moose’s view. Moose heard a car engine start up and then heard a shotgun blast. Twenty seconds later, Moose saw Dan drive his Mustang on a dirt road leading from defendant’s driveway and turn onto Winuba. Moose saw only Dan and defendant in the car. Defendant was sitting in the front passenger seat. Moose saw seven inches of a shotgun barrel sticking out the front passenger’s window.
As Dan was driving the Mustang on Winuba, Moose heard a second gunshot. At the time, Moose was driving home. She was about to turn onto Tibec Lane. Moose lived on Tibec, on the corner of Tibec and Winuba. Moose called 911 on her cell phone.
Right after Moose pulled into her driveway, she saw Dan’s Mustang slowly pass by. Moose was standing in her driveway, which was about 15 yards away from where the Mustang drove by on Winuba. Moose again saw a shotgun barrel protruding from the front passenger side window of the Mustang and heard a third shot from the gun. At the time, Moose was still on the phone with the 911 operator. Moose last saw the Mustang headed north on Pa Ha Lane, which intersected Winuba.
California Highway Patrol Officers Edward Murphy and Charles Mairs were dispatched to look for the Mustang. The dispatcher told Murphy the Mustang was last seen at the home of Margaret Cortez, defendant’s girlfriend, who lived on Pa Ha Lane. When officers Murphy, MacKenzie, and Vaughn arrived at Cortez’s home, the Mustang was parked 10 to 12 feet from the back door of Cortez’s home. As Vaughn detained four male suspects at the scene, defendant, who was extremely intoxicated, appeared from the rear of Cortez’s house. His fists were clenched and he was yelling and cursing.
Officer Murphy looked through the window of the Mustang. He did not see a shotgun in the car but found an expended shotgun shell on the ground between the car and back door of the house. Officer Murphy testified that it could not be determined how long the shell had been there. The four men detained at the scene, including Chase Witman, Harlan Stone, Dan Stone, and Dan Charley, denied seeing defendant in possession of a shotgun. Officer Vaughn searched defendant for weapons but did not find any. Defendant was then arrested.
At trial, Cortez testified she was not home and her house was unoccupied and locked at the time of the charged offense. Neither defendant nor his companions had a key to her home. There was no evidence of a break-in.
2. Instruction on Possession
Defendant contends the trial court’s initial instruction on the offense of a felon in possession of a firearm (§ 12021) was inadequate because the court did not correctly define the meaning of “possession.” Defendant further asserts that the trial court’s instruction, provided after the jury requested the court to define the term, misstated the meaning of the term.
The People argue defendant forfeited or waived his objections.
A. Procedural Background
During a discussion between counsel and the court concerning the jury instructions, the trial court read to counsel the instruction the court intended to give on the offense of a felon in possession of a firearm. Neither party objected to the instruction.
The trial court accordingly gave CALCRIM No. 2511 in relevant part as follows: “The defendant is charged in Count 2 with unlawfully possessing a firearm. [¶] To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant possessed a firearm; two, the defendant knew that he possessed the firearm; and, three, that the defendant had previously been convicted of a felony.”
Defendant complains that this instruction was deficient because the court did not define “possession.” During deliberations, the jury requested the court to provide a legal definition of “possession.” The court informed the jury foreperson that the court would read to the jury a legal definition of “possession.”
After the court had a discussion off the record, presumably with counsel out of the presence of the jury, concerning instruction on possession, the court reread CALCRIM No. 2511, as initially given to the jury, with the addition of the following definition of possession: “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.”
B. Analysis
The supplemental instruction defining possession included optional bracketed language from CALCRIM No. 2511 that may be added if there is evidence supporting the language. Since defendant did not object to the initial instruction omitting this language and did not request a pinpoint instruction defining “possession,” defendant waived or, rather, forfeited his objection on appeal to this initial omission: “If defendant believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions. [Citation.] His failure to do so waives the claim in this court. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 514; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1189, and People v. Lewis (2001) 26 Cal.4th 334, 380.)
In addition, there was no error in the trial court not initially providing sua sponte the bracketed language on constructive possession because there was no evidence supporting such a theory. The prosecution argued defendant had actual possession of the gun and the evidence established that the gun was in defendant’s actual possession in the car. The gun was protruding from the window on the passenger side of the car where defendant was sitting and there was no evidence that anyone was in the car other than defendant and the driver of the car.
Furthermore, any such deficiency in the initial instruction was harmless because the trial court subsequently provided the jury with a definition of possession. (People v. Mayfield (1997) 14 Cal.4th 668, 774.)
Defendant concedes that such error would have been harmless had the supplemental instruction provided an accurate definition of possession. Defendant argues, however, that the supplemental instruction did not adequately instruct on the element of possession. Defendant claims the supplementary instruction was deficient because it did not require the jury to find, with regard to constructive possession, that defendant had knowledge of his right to control over the gun. Defendant argues the instruction indicated the jury only had to find defendant had a legal right to control it. Defendant also complains that the supplemental instruction was deficient in not distinguishing between actual and constructive possession.
The People argue defendant forfeited his objections to the supplemental instruction by not raising them in the trial court. Defendant claims he did not have an opportunity to object. The record belies this assertion, although it is not entirely clear from the record. The record indicates that after the court told the jury it would read to the jury a definition of the term, “possession,” the court and counsel discussed the matter off the record. Then the trial court read to the jury the supplemental CALCRIM No. 2511 instruction, with the added language defining constructive possession. Since the record is unclear as to what was stated during the discussion off the record, it is not clear as to whether defense counsel objected to the supplemental instruction. Under such circumstances, regardless of whether defendant waived the issue, we will address it on the merits.
We reject defendant’s contention the supplemental CALCRIM No. 2511 instruction did not properly instruct on constructive possession because it did not state the defendant must know of his right to control the firearm. Looking at the instructions as a whole, it was sufficiently clear that such knowledge was required.
In determining whether there is instructional error, this court “must consider the instructions as a whole. The court must also assume that the jurors are intelligent beings and capable of understanding and correlating all instructions which are given to them. [Citation.]” (People v. Billings (1981) 124 Cal.App.3d 422, 427-428 (Billings), disapproved on other grounds in People v. Karis (1988) 46 Cal.3d 612, 642, fn. 22; see also People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112 (Martin).)
The two CALCRIM No. 2511 instructions given to the jury in this case, adequately instructed the jury on the offense of a felon in possession of a gun. There was insufficient evidence to warrant instruction on constructive possession. Furthermore, the language in the supplemental CALCRIM No. 2511 instruction explaining constructive possession, was sufficient, when considered in the context of the instructions as a whole.
3. Single Witness Instruction
Defendant contends the trial court committed prejudicial error by failing to give the jury a written version of the single witness instruction, CALCRIM No. 301.
Because only one witness, Rachel Moose, testified that she saw defendant in possession of a gun while riding in a car, the trial court read to the jury CALCRIM No. 301 as follows: “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.”
The clerk’s transcript does not contain the written version of CALCRIM No. 301, but the reporter’s transcript establishes that the instruction was read to the jury. The record thus indicates that the jury may not have been given a copy of the written version of CALCRIM No. 301 to review during deliberations.
Defendant argues that when there is a variance between the verbal and written instructions, it is generally presumed that the jury is guided by the written version. Defendant also asserts that the trial court had a sua sponte duty to give the jury the instruction. We do not disagree with these basic tenets but do not find them relevant. Here, there was no conflict between the language stated in the verbal and written versions of CALCRIM No. 301. It appears that either the written instruction was not provided to the jury or it was inadvertently omitted from the clerk’s transcript.
As to the court’s sua sponte duty to give the instruction, it is undisputed that the court read the instruction to the jury. As stated above, the court must “assume that the jurors are intelligent beings and capable of understanding and correlating all instructions which are given to them. [Citation.]” (Billings, supra, 124 Cal.App.3d at p. 428; see also Martin, supra, 78 Cal.App.4th at pp. 1111-1112.) We thus conclude the jury was capable of comprehending and following CALCRIM No. 301, as read to the jury, even though the instruction was not also provided to the jury in written form.
In addition, in determining whether the trial court committed prejudicial error in not giving the written version of CALCRIM No. 301 to the jury, this court must consider the instructions as a whole. (Billings, supra, 124 Cal.App.3d at pp. 427-428; see also Martin, supra, 78 Cal.App.4th at pp. 1111-1112.) Other instructions given to the jury reiterated the content of the single witness instruction, i.e., that the jury was to consider all the evidence before relying on the single witness testimony of Rachel Moose.
Such instructions, given both verbally and in written form, included CALCRIM No. 107 [“. . . You will have to decide whether you believe each witness and how important each witness’ testimony is to the case. You may believe all, part, or none of the witness’ testimony. [¶] . . . [¶] Do not make any decisions simply because there were more witnesses on one side than the other. If you believe it is true, the testimony of a single witness is enough to prove a fact.”]; CALCRIM No. 223 [the jury “must decide whether a fact in issue has been proved based on all the evidence”]; CALCRIM No. 220 [in deciding whether the People proved their case beyond a reasonable doubt the jury “must impartially compare and consider all the evidence that was received throughout the entire trial”]; CALCRIM No. 226 [the jury “must judge the credibility . . . of the witnesses,” considering factors such as “How reasonable is the testimony when you consider all the other evidence in the case?”]
There being no evidence of prejudice, we conclude that assuming the court did not provide the jury with a written version of CALCRIM No. 301, such omission was harmless error. (People v. Watson (1956) 46 Cal.2d 818, 835-836.)
4. Exclusion of Margaret Cortez’s Testimony
Defendant contends the trial court violated defendant’s constitutional rights to due process and to present an effective defense by excluding a portion of Margaret Cortez’s testimony. Defendant claims that the only evidence corroborating Moose’s testimony that she saw defendant in the car with a shotgun was a shotgun shell found in Cortez’s backyard by the back door. The prosecution argued at trial that the shell suggested defendant had hidden the gun in Cortez’s house. The defense proposed to introduce Cortez’s testimony that the shell had been in her backyard a long time before the day of the charged gun possession offense. The trial court excluded the testimony because Cortez was not included on defendant’s witness list.
A. Factual and Procedural Background
At trial, Officers Vaughn and Murphy testified that they found the shotgun shell in Cortez’s backyard near the back door of her house. One of defendant’s companions, Chase Witman, testified that, when the police arrived on the scene, defendant jumped in a car and drove behind Cortez’s house. After Witman’s testimony, defense counsel requested to introduce testimony by Cortez that the shell had been in her backyard a long time before the charged offense. Defense counsel explained that Cortez was not listed on defendant’s witness list because defense counsel was unaware that the prosecution would introduce evidence suggesting defendant and/or his companions had entered Cortez’s house to dispose of the gun.
Defense counsel acknowledged that Officer Mackenzie had stated in a police report that he saw defendant go into the back of the house. Defense counsel intended to refute this by using photographs showing that it was physically impossible from where Mackenzie was located for him to have seen defendant enter the back of the house. Defense counsel claimed he did not expect testimony indicating that someone entered the back of the house. In addition, at the start of trial, defense counsel learned Mackenzie would not be called to testify.
The court stated it believed defense counsel had mentioned in his opening statement that there would be evidence that the house was locked. During an Evidence Code section 401 examination hearing (401 hearing), Cortez testified that she drove up to her house and found three officers there. Vaughn asked her if he could search her house and she said no, because if there were no broken windows, defendant would not have been able to enter since he did not have a key. The other three suspects, Dan Stone, Harlan Stone, and Chase Witman, also did not have a key. At the time, her house was locked and there did not appear to be any broken windows. Cortez stated that defendant had never been inside her home when she was not there and had no way of getting in when she was gone.
Cortez further stated during the 401 hearing that at the time of the charged incident there was a shotgun shell on the ground near the back door. There may have been other shells there as well. The shells had been there ever since she had moved into the home several months before. Cortez said the shell by the back door had been there for a long time before the charged incident.
The prosecutor objected to Cortez testifying concerning the shell because defense counsel was aware of the possibility the prosecution might argue defendant or his companions took the gun inside Cortez’s house. Nevertheless, defendant failed to name Cortez as a witness. The prosecutor argued Cortez’s testimony should be excluded because defendant did not list Cortez as a witness and pursuant to Evidence Code section 352. The prosecutor asserted that the testimony’s probative value was outweighed by its prejudicial nature and it would result in undue consumption of the court’s time.
After considering counsels’ arguments, the trial court stated that defense counsel was at fault for failing to list Cortez as a witness. “It should have been obvious that her testimony in connection with whether the house was locked or unlocked during the period of time when the defendant was in contact with the officers, certainly at all times, would have been relevant to the defense. I find it would be extremely prejudicial to the defendant if the Court did not allow that evidence to be presented. There is a violation of the discovery statute; however, the Court is mandated to not preclude the testimony of a witness unless it is the last resort.”
Under such circumstances, the trial court permitted Cortez to testify as to the locked condition of her home but precluded her testimony as to the shotgun shells. The court acknowledged the prosecution was prejudiced by the court’s ruling allowing Cortez to testify but limited her testimony, concluding that the prejudice to defendant in excluding the testimony that Cortez’s home was locked outweighed the prosecution’s prejudice.
In accordance with the court’s ruling, Cortez testified to the locked condition of her home but did not testify that the shell by the back door had been present a long time before the charged offense.
B. Applicable Law
Defendant argues that the preclusion sanction of excluding Cortez’s testimony concerning the shell was too severe since there was no evidence that the discovery violation was willful. In addition, defendant argues other less severe sanctions could have been imposed, such as curative admonition, CALCRIM No. 306, and exclusion of the testimony under Evidence Code section 352 was inappropriate.
Section 1054.5 provides for sanctions for failure to comply with the witness disclosure provisions. Subdivision (b) provides that when a party has not complied with the informal reciprocal discovery rules, a court may make orders necessary to enforce them, “including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” Subdivision (c) provides in part that, “The court may prohibit the testimony of a witness . . . only if all other sanctions have been exhausted.”
“[P]reclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse.” (People v. Edwards (1993) 17 Cal.App.4th 1248, 1263 (Edwards).) Such sanctions should be reserved to those cases involving willful and deliberate violations designed to obtain a tactical advantage at trial. (Ibid.) Exclusion of testimony is proper only where (1) the record demonstrates a willful violation of the discovery order, or (2) untimely discovery results in significant prejudice to the opposing party. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757-1759.) Furthermore, courts have strictly enforced the requirement that a preclusion sanction should only be used as a last resort after all other sanctions have been exhausted. (See Edwards, supra, at p. 1264.) The trial court’s choice of sanctions for a discovery violation is reviewed for abuse of discretion. (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.)
Excluding evidence under Evidence Code section 352 is reviewed “under an abuse of discretion standard, and a trial court’s determination ‘will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial court’s decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice.’ [Citation.]” (People v. Lamb (2006) 136 Cal.App.4th 575, 582 (Lamb), quoting In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.)
C. Analysis
Here, the trial court did not abuse its discretion in imposing the discovery sanction of excluding Cortez’s shotgun shell testimony. Even if the exclusion of Cortez’s shell testimony was an excessive sanction, it was not an abuse of discretion to limit Cortez’s testimony under Evidence Code section 352. (Lamb, supra, 136 Cal.App.4that pp. 581-582.)
Because it was apparent that the defense was aware of facts that there was a shotgun shell found near Cortez’s back door and that the prosecution might suggest the shell indicated defendant was in possession of a gun or may have entered the back of Cortez’s home, defendant failed to show any justification for not naming Cortez as a witness for purposes of refuting these inferences.
Defense counsel was well aware of the possibility the prosecution would argue the gun was placed in Cortez’s home. In addition, the presence of the shell outside Cortez’s back door was stated in the police report. The court could reasonably conclude based on these facts that defense counsel’s failure to name Cortez as a witness was a willful, strategic decision.
Furthermore, less severe sanctions would not have been effective. Despite defendant’s discovery violation, the trial court did not exclude all of Cortez’s testimony. It permitted Cortez to testify her home was locked, and defendant and his companions did not have a key to get in. This was the most critical testimony rebutting the prosecution’s argument that the gun was disposed of in Cortez’s home. The presence of the shotgun shell on the ground, on the other hand, was not definitive evidence that defendant was in possession of a gun since there was no way of knowing how it got there or, as Officer Murphy testified, there was no way of knowing how long it had been there.
Admonishing the jury by giving CALJIC No. 306 would have been ineffective in remedying prejudice caused by Cortez testifying about the shotgun shell because she had already heard the other witnesses testify; the prosecution had not had an opportunity to prepare for Cortez’s testimony and call other witnesses to refute her testimony on the length of time the shell had been in her backyard; Cortez’s testimony would likely result in a continuance of the trial to allow the prosecution to interview and call witnesses refuting Cortez’s testimony; and Cortez’s testimony would ultimately result in delay and undue consumption of the court’s time.
There was also a sufficient basis for excluding Cortez’s testimony about the shotgun shell under Evidence Code section 352, on the ground the testimony was more prejudicial than probative. During the 401 hearing, defense counsel apologized for not listing Cortez as a witness and added that, because evidence of the shotgun shell was of such slight evidentiary value, officers had not even collected it as evidence. In addition, Officer Murphy testified that it could not be determined how long the shell had been there. Furthermore, testimony by Cortez concerning the shell was questionable since she was defendant’s girlfriend and acknowledged that she would like to help him.
On the other hand, Cortez’s testimony concerning the shell was highly prejudicial to the prosecution because Cortez was not listed as a witness and was thus permitted to sit in the courtroom and listen to the other witnesses’ testimony. In addition, the prosecution had not had an opportunity to prepare rebuttal to the shell testimony. There was thus no abuse of discretion in excluding Cortez’s testimony concerning the shotgun shell as a discovery sanction or under Evidence Code section 352.
5. Disposition
The judgment is affirmed.
We concur: Ramirez P. J., McKinster J.