Opinion
B232028
01-12-2012
THE PEOPLE, Plaintiff and Respondent, v. RICARDO BAUTISTA VEGA, Defendant and Appellant.
John Alan Cohan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Linda C. Johnson and Ryan M. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA110315)
APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick Connolly, Judge. Affirmed with directions.
John Alan Cohan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Linda C. Johnson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
A Los Angeles jury found defendant and appellant Ricardo Bautista Vega guilty of being a felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a)(1), and possessing an assault weapon in violation of section 12280, subdivision (b). The trial court imposed the two-year middle term for the felon in possession offense and the two-year middle term for the assault weapon offense, to be served concurrently.
All further statutory references are to the Penal Code, unless noted otherwise.
In his timely appeal, defendant contends (1) the trial court erroneously and prejudicially admitted evidence of his prior conviction for possession of an assault weapon (the same offense charged in count 2), despite his offer to stipulate to the fact of a prior felony conviction, and (2) section 654's proscription against multiple punishments required that his concurrent sentence for assault weapon possession be stayed.
We agree with the second contention and order the sentence on count 2 stayed. However, as the first contention fails, the judgment is otherwise affirmed.
STATEMENT OF FACTS
Prosecution
On January 10, 2010, uniformed deputies, Edgar Bonilla and Juan Rodriguez, were on patrol in a marked sheriff's car in a residential neighborhood on 118th Street. Deputy Bonilla, who was the passenger in the patrol car, saw defendant standing with Miguel Reyes. Reyes was showing a handgun to Jason McKinley.
Deputy Rodriguez stopped the patrol car. Defendant was wearing a poncho that concealed his hands. Deputy Bonilla made eye contact with defendant and Reyes. Reyes ran toward the back of a residence. The deputies exited the patrol car and drew their weapons. Deputy Bonilla ordered Reyes to stop, drop the gun, and get on the ground. The deputy had a clear view of defendant and McKinley, from a distance of 20 to 25 feet. He ordered them to the ground.
Defendant turned away from Deputy Bonilla and casually put a rifle into a nearby trash can, before turning back to face the deputy. At that point, defendant raised his hands, walked toward the deputy, and got down on the driveway. While defendant was placing the rifle into the trash can, the deputy saw the weapon's magazine or "banana clip." Deputy Bonilla opened the trash can lid and retrieved the rifle from the can.
In the meantime, Deputy Bonilla lost sight of Reyes. His partner ran to the back of the residence to apprehend Reyes. Deputy Bonilla radioed for assistance. Shortly afterward, Reyes—unarmed and with his hands in the air—returned from the back of the residence and lay down next to defendant and McKinley. Deputy Bonilla and other deputies handcuffed the three men and searched them for weapons, but found none on their persons. Deputy Bonilla then walked around the side of the residence and found a small, black .380-caliber semi-automatic pistol, loaded with seven rounds of ammunition, in the area where Reyes had initially run.
When defendant was arrested and placed in the patrol car, Deputy Bonilla advised him of his Miranda rights, which he waived. Defendant explained that a "Mexican guy" came by to sell the handgun and rifle.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant's mother was at the scene. She told the deputies that her registered handgun was in the house. She consented to the search of her house and showed the deputies defendant's bedroom, where they recovered a semi-automatic handgun registered to defendant's mother from the closet.
Deputy Eric Sorensen testified concerning the rifle and its characteristics— specifically, the characteristics that made it an assault weapon under California law, a semi-automatic rifle that "fires a center fire round." A firearm expert, Deputy Sorensen testified that the firearm was a center fire rifle which had two of the six qualifying characteristics, specifically a pistol grip and a collapsible stock.
It was stipulated that defendant was "previously convicted in case No. TA056374 of possessing an assault weapon, in violation of Penal Code section 12280[, subdivision] (b), a felony," on July 21, 2000.
Defense
Defendant testified that he was employed by a carpet company for seven years. He lived with his daughter and parents at the East 118th Street residence where the arrest took place. Defendant and his daughter lived in the converted garage, which was not connected by any doors or passageways to the main unit.
On the day of the incident, defendant received a telephone call at approximately 9:30 a.m. from Reyes (a work acquaintance), who said he had to speak to defendant face-to-face, rather than over the telephone. Defendant dressed and Reyes drove up and parked in front of the residence approximately 20 minutes later. Reyes's wife and friend were in the car. Reyes told defendant that he was in financial distress and asked if he could move in with defendant. When defendant said no, Reyes asked if he could wash his car because they had been living in it. Reyes patted his pocket and said he had a gun he wanted to sell. Defendant said he did know a potential buyer.
As defendant got the hose to begin washing the car, his neighbor McKinley walked up and asked if defendant could help install a car stereo. As defendant and McKinley talked and Reyes washed the car, a patrol car pulled up and slowly "roll[ed] by." Defendant was not standing in front of the trash cans as Deputy Bonilla testified. Rather, defendant and McKinley were near the residence's gate and Reyes was washing his car. Reyes "got spooked" and ran to the side of the house. The patrol car stopped and two deputies jumped out—a White male and an African-American female deputy, neither was Deputy Bonilla. Both deputies pointed their weapon at him. Neither chased Reyes.
Defendant did not get on the ground as ordered because he was not doing "anything wrong." The female deputy got angry, repeated her order, and threatened to "shoot and kill" him. At that point, defendant complied. The deputies called for backup support. When the others arrived, defendant was arrested and placed in a squad car. From the car, defendant saw deputies bringing Reyes out from around the side of the house. Various deputies searched Reyes's car. They pulled an assault rifle out of the trunk. A deputy took the rifle, put it in the trash can, and continued to search the car. The male deputy from the initial patrol car asked defendant about the guns they found. Defendant said the handgun belonged to Reyes and he knew nothing of the rifle.
Defendant testified about a series of prior events involving Detective Julius Gomez, who took part in defendant's arrest. Some weeks before defendant's arrest, defendant's residence had been burglarized. Detective Gomez was one of the officers who responded and interviewed him about that crime. The following day, when Detective Gomez told defendant who the burglar was, defendant said he did not want to testify. Defendant knew the suspect as "a well respected guy," who knew "a lot of people." If defendant were to testify against him, "things would happen to [defendant's] family." Indeed, defendant failed to appear in court when first told to do so. Detective Gomez visited defendant a few days later to discuss his failure to appear. In order to put the detective off, defendant falsely said he would show up the next time. Defendant disobeyed a subpoena to appear. He also changed his telephone number because the detective "kept bugging" him about testifying.
Detective Gomez eventually showed up with four other deputies and arrested defendant based on "a warrant for a suspended license." They handcuffed defendant and placed him in a squad car for three to four hours, telling him they had a warrant to search his house. When the search was over, the deputies released him and drove away. Defendant did not see Detective Gomez again until the January 10 incident. He was the detective in the last patrol car to arrive at the scene of the arrest.
On cross-examination, defendant admitted that the deputies took him to the hospital after the arrest in response to defendant's complaints of heart problems. However, defendant denied that Detective Gomez interviewed him at the hospital. Defendant did not tell the detective that he held the rifle at the time Reyes showed it to him. Defendant said he "never touched it." Defendant did not tell the detective that he knew Reyes "as a shooter from an unknown gang in Bell."
Defendant's mother, Maria Elena Vega, confirmed that defendant and his daughter lived in a separate part of the duplex they shared. In November or December of 2009, there was a burglary at her duplex. Detective Gomez was among those who searched the residence.
On January 10, Mrs. Vega heard a loud commotion outside her home. Police officers came to the door and ordered her outside immediately. The officers asked her for permission to search the home. They did not have her sign a consent form. Instead, after the search, they presented her with a blank piece of paper to sign, which they would fill in later. She told the officers there was one gun in the house—her own, which was in her bedroom. She took the officers to the closet in her bedroom and unlocked the wooden box where it was kept. The officers took the weapon for testing, although she asked them not to do so because it was registered to her. Approximately one month later, she was able to retrieve it from the Lynwood City Hall.
Rebuttal
Detective Gomez testified that he interviewed defendant at the hospital on January 10, after the arrest. Defendant told him that before the arrest, defendant was in front of his house with an acquaintance called Shooter, who was a gang member from Bell. While defendant tried to break up an argument between Shooter and an unknown Hispanic male, the sheriff's department patrol cars arrived. Reyes ran back to his home. With regard to the rifle, defendant said his fingerprints might be on the weapon because he put the rifle in Shooter's car.
Detective Gomez first met defendant on December 1, 2009, when he took part in the investigation of the burglary of defendant's home. The metal bars in front of a window had been pried open and the window itself had been manipulated. Two persons were arrested that night. Within a week of the December burglary, Detective Gomez served a search warrant on defendant's home and telephoned defendant concerning the burglary investigation. Defendant was detained in a patrol car during the search of the residence, but not arrested. The burglary case was presented to the District Attorney for filing two days later, but it was rejected with the explanation that the District Attorney would seek to revoke the suspects' parole instead. No case was filed. Accordingly, the detective had no occasion to have a subpoena served on defendant or anyone else. The detective never told defendant to come to court.
DISCUSSION
Admission of Prior Conviction
Defendant contends the trial court erroneously and prejudicially overruled his Evidence Code section 352 objection, permitting the admission of evidence that he suffered a prior conviction for possession of an assault weapon—the same offense charged in count 2. More specifically, he argues the court erroneously failed to accept the defense offer to "sanitize" the prior conviction so that it would admit only the fact of a prior felony conviction, while omitting reference to the specific felony. As we explain, there was no abuse of discretion because the trial court reasonably weighed the probative value and potential prejudice in admitting the prior conviction. The record supports the trial court's findings that the specific nature of the prior offense was highly probative of one of the elements of possession of an assault weapon—that defendant knew the rifle had the legal characteristics of an assault weapon—and admission of the conviction would entail no undue prejudice.
"[W]e construe section 12280[, subdivision] (b) as requiring knowledge of, or negligence in regard to, the facts making possession criminal. In a prosecution under section 12280[, subdivision] (b), that is to say, the People bear the burden of proving the defendant knew or reasonably should have known the firearm possessed the characteristics bringing it within the [Assault Weapons Control Act]." (In re Jorge M. (2000) 23 Cal.4th 866, 887, fn. omitted.)
In a pretrial hearing, the defense objected to the prosecution's intent to introduce evidence of defendant's 2000 conviction for possessing an assault weapon, arguing that the admission would be improper under Evidence Code sections 352 and 1101, subdivision (a). Regarding the latter, the trial court ruled the prosecution would not be permitted to present testimony as to the circumstances of the prior arrest. On the question of whether the prosecution would be permitted to adduce evidence of the nature of the prior conviction, rather than the bare fact of a felony conviction, the prosecution argued the former was relevant to show defendant's intent and knowledge as to the present offense—that defendant knew the firearm was an assault weapon. On Evidence Code section 352 grounds, the court found that any prejudice would be outweighed by the evidence's probative value as to defendant's intent and knowledge.
At the conclusion of the prosecution's case-in-chief, it was stipulated that defendant was previously convicted of possessing an assault weapon on July 21, 2000. On direct examination, defendant testified that he pled guilty to possessing an assault weapon in 2000. The prosecutor mentioned the prior conviction as the start of the argument, when he said the People had proved the prior felon element of being a felon in possession by virtue of the stipulation as to the prior felony. In the course of challenging defendant's version of events, the prosecutor stated that defendant had a motive to lie "because he was caught red handed with this assault rifle, which he knew . . . was an assaulted [sic]rifle. You know that because he was previously convicted of having an assault rifle."
A trial court's admission of prior felony convictions over an Evidence Code section 352 objection is reviewed for abuse of discretion. (See e.g., People v. Green (1995) 34 Cal.App.4th 165, 182-183.) "A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (Ibid., quoting People v. Stewart (1985) 171 Cal.App.3d 59, 65.) Whether to "sanitize" a prior conviction also presents a discretionary choice for the court. (See People v. Massey (1987) 192 Cal.App.3d 819, 825 (Massey).)
The thrust of defendant's argument is that California law generally proscribes the admission of a prior conviction for the same or similar offense for impeachment purposes. Assuming defendant is correct that current law prohibits use of an identical prior conviction for impeachment purposes, that rule has no application where, as here, the prior conviction also serves as proof of an element of the charged offense.
In fact, earlier cases cited by defendant on this issue are of little value. "'While before passage of Proposition 8, past offenses similar or identical to the offense on trial were excluded, now the rule of exclusion on this ground is no longer inflexible.' [Citations.] Inasmuch as defendant had no other prior felony convictions available for impeachment, the trial court did not abuse its discretion in admitting these crimes of violence. [Citation.] To do otherwise would have given defendant a '"false aura of veracity."' [Citations; fn.]." (People v. Hinton (2006) 37 Cal.4th 839, 888; see also People v. Sandoval (1992) 4 Cal.4th 155, 178 ["Defendant's reliance on pre-Proposition 8 cases is unpersuasive."].)
Our review of the record discloses no miscarriage of justice in the court's refusal to sanitize defendant's prior conviction for possession of an assault weapon. To prove the current offense, the prosecution bore the burden of demonstrating that "defendant knew or reasonably should have known the firearm possessed the characteristics bringing it within" section 12280, subdivision (b). (In re Jorge M. (2000) 23 Cal.4th 866, 887, fn. omitted.) Defendant's prior conviction for that offense was highly probative on that issue. To preclude the prosecution from introducing the nature of defendant's prior conviction would have provided defendant with the opportunity to testify under a false aura of veracity that he was a neophyte with regard to knowledge of assault weapons.
Decisions applying Evidence Code section 1101 to narcotics offenses are instructive. "In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. (People v. Pijal (1973) 33 Cal.App.3d 682, 691.)" (People v. Williams (2009) 170 Cal.App.4th 587, 607; see also People v. Thornton (2000) 85 Cal.App.4th 44, 49-50 [finding the defendant's statement to arresting officer that he had only used heroin a few times was admissible, in prosecution for possession of heroin, for the limited purpose of showing defendant's knowledge of the nature of the substance alleged to be in his possession].)
On the other hand, despite defendant's objection, it is far from clear that a sanitized admission would have been more beneficial to defendant. The admission of the bare fact of a felony conviction could have led jurors to speculate about whether defendant had committed a more serious offense. (People v. Castro (1985) 38 Cal.3d 301, 319.) By not sanitizing the conviction, the trial court foreclosed speculation that defendant's prior offense involved a more heinous crime. (Ibid.; Massey, supra, 192 Cal.App.3d at p. 825.) In People v. Rollo (1977) 20 Cal.3d 109, superseded by statute as stated in Castro, supra, at page 308, the Supreme Court recognized that the sanitizing procedure is no panacea, and may create more problems than it solves. "The jury manifestly cannot weigh the probative value of the defendant's particular prior offense unless it knows what that offense was. To tell the jurors only that the defendant has been convicted of 'a felony' is therefore to furnish them with a largely meaningless fragment of information." (Rollo, supra, at p. 119.)
Moreover, the nature of the prior conviction was only mentioned twice by the prosecutor in closing argument, and those references were in keeping with the trial court's finding of admissibility. Therefore, "in view of the substantial evidence against appellant, and the minimal use made of the prior conviction," any "error in admitting the prior conviction was not reversibly prejudicial, as it is not reasonably probable that a result more favorable to the appellant would have been reached in the absence of the error." (People v. Cole (1982) 31 Cal.3d 568, 581, citing Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant's reliance on People v. Valentine (1986) 42 Cal.3d 170 is misplaced because that decision held that for purposes of proving that a defendant is a felon in possession of a firearm in violation of section 12021, subdivision (a)(1), the precise nature of the prior felony is neither relevant nor probative in proving the prior felony conviction element—the mere fact of the prior conviction is sufficient. (Id. at pp. 181-182 ["Proposition 8 does not require the nature of prior convictions to go to the jury in such a case, since that information is utterly irrelevant to the charge."].) Here, in contrast, the trial court ruled the nature of the offense was admissible not for purposes of proving the section 12021 offense, but for proving the knowledge element of the section 12280, subdivision (b) offense.
Multiple Punishments Under Section 654
We agree with defendant's contention that section 654's proscription against multiple punishments required the staying of his concurrent sentence for possession of an assault weapon.
Section 654 provides in pertinent part as follows: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "The test for determining whether section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Neal v. State of California [(1960)] 55 Cal.2d [11,] 19.)" (People v. Britt (2004) 32 Cal.4th 944, 951-952 (Britt).)
No evidence was presented at trial as to defendant's differing intent and objective in violating counts 1 and 2. Nor did the trial court make any such finding. Both offenses were predicated on the possession of the same firearm at the same time. In short, there is no substantial evidence that defendant had an intent or objective to do anything other than possess the rifle.
The Attorney General argues that People v. Taylor (1969) 2 Cal.App.3d 979 (Taylor) supports an implicit finding of separate intentions. In that case, the court found the crimes of possessing stolen property and possessing a concealable gun by an ex-convict demonstrated "a separate and distinguishable mens rea," even though it was the same gun in both instances. (Id. at pp. 985-986.) Similarly, in People v. Harrison (1969) 1 Cal.App.3d 115, multiple punishments were found permissible for convictions under sections 12021, subdivision (a)(1) and 12031, subdivision (a)(1), based on the discovery of a loaded handgun underneath the passenger seat of a car driven by the defendant. The Harrison court reasoned: "For an ex-convict to carry a concealable firearm is one act. But loading involves separate activity, and while no evidence shows that appellant personally loaded the pistol, there seem[s] little distinction between loading and permitting another to do so. Thus, two acts, not a single one, are necessarily involved and bring our case outside the prohibition against double punishment for a single act or omission." (Id. at p. 122.)
To the extent Taylor and Harrison suggest that multiple punishments are required, as a matter of law, for single act of possession in those cases, we disagree. A search for substantial evidence of the defendant's intent and objective must be undertaken, since "[w]hether multiple convictions are part of an indivisible transaction is primarily a question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)" (People v. Martin (2005) 133 Cal.App.4th 776, 781.) The reasoning of Harrison has not been universally followed. (See People v. Lopez (2004) 119 Cal.App.4th 132, 137-138; People v. Perry (1974) 42 Cal.App.3d 451, 456-457 [§ 654 bars multiple punishment for simultaneous offenses of possession of a sawed-off shotgun and felon in possession of a firearm].)
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Here, however, while it is true that in choosing to possess an assault weapon and doing so as an ex-felon defendant committed separate and distinct offenses, it would be entirely artificial and speculative to posit separate intents and objectives in possessing the same weapon. In the words of our Supreme Court, such speculation regarding the existence of multiple intents and objectives with no evidentiary support "parses the objectives too finely." (Britt, supra, 32 Cal.4th at p. 953.)
Accordingly, the trial court did not err in imposing sentences on both counts, but the sentence in one of the counts should have been stayed. (People v. Scheidt (1991) 231 Cal.App.3d 162, 170 [§ 654 precludes separate punishment for single act of possessing a concealable firearm and possessing a sawed-off rifle]; see People v. Lopez (2004) 119 Cal.App.4th 132, 138 [§ 654 precludes imposition of separate sentences for unlawful possession of ammunition and unlawful possession of a firearm when both violations were part of an "indivisible course of conduct"]; see generally People v. Miller (1977) 18 Cal.3d 873, 887 [where applicable, § 654 precludes imposition of concurrent sentence].) Because the punishment is the same for both counts, the trial court has discretion to choose which count to stay.
DISPOSITION
The trial court is ordered to stay the sentence in either count 1 or 2 pursuant to section 654, the stay to become permanent upon completion of the sentence in the remaining count. In all other respects, the judgment is affirmed.
KRIEGLER, J. We concur:
TURNER, P. J.
MOSK, J.