Opinion
C090234
09-07-2021
The PEOPLE, Plaintiff and Respondent, v. Gregory Lee WISE, Defendant and Appellant.
James Bisnow, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, Supervising Deputy Attorney General, Kimberley A. Donohue, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part II of the Background and part I of the Discussion.
James Bisnow, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, Supervising Deputy Attorney General, Kimberley A. Donohue, Deputy Attorney General, for Plaintiff and Respondent.
BLEASE, J. Defendant Gregory Lee Wise texted and called a woman, R.F., hundreds of times for three years after they had gone on two dates despite her continued demands for him to stop. During this period, defendant stored hundreds of pictures of R.F. on his computer taken from the internet and used in a sexual manner. He also took and stored pictures of other women without their knowledge as they parked their cars or walked down the street. After defendant's arrest, police officers searched his home and discovered the photographs along with several assault weapons and ammunition. At trial, the court permitted admission of both sets of photographs over defendant's objections. Defendant was convicted of stalking, unlawfully manufacturing an assault weapon, and possession of several assault weapons, among other crimes.
On appeal, defendant challenges the admission of both sets of photographs arguing they were irrelevant and prejudicial. He also asserts the court improperly failed to provide a lesser included offense jury instruction for the unlawfully manufacturing an assault weapon charge. We affirm.
BACKGROUND
I
Defendant's Stalking of R.F.
Defendant met R.F. through a dating website in 2011. After a couple of casual dates involving walking around public parks, she relayed to defendant she was not interested in pursuing the relationship. Defendant still continued to text and call her over 900 times for the following three years, even though R.F. only responded to tell him to stop and attempted to pretend she had changed her number. In 2015, defendant resorted to threatening to kill himself if she did not reciprocate his feelings towards her. Defendant had also changed his profile on the dating website to say, "[R.F.] you are the only one for me," call R.F. his "soulmate," and that: "She just confuzzled [sic ] and continues to play games with me as she had from the very beginning.... I been ‘stalkering’ her lately. Whatever that word means that concept means. She so fraidy [sic ] of me she won't even dare respond so I guesses [sic ] I will have to confront her." Around discovering defendant's profile changes, R.F. also found a video defendant uploaded showing him shooting guns while running through a forest in a military fashion.
On June 19, 2015, defendant sent R.F. two messages on two different messaging platforms. The first said: "I stalkered [sic ] you on the 15th of June 2015." The second said: "You have to understand please please just talk to me I don't want to have to come after you I just want for you to do what is right I have to be with you."
On June 22, 2015, defendant was arrested after a light rail rider called 911 reporting defendant had a gun in his pocket on the train. Officers found on defendant a map to R.F.’s house and a document titled "Plan Trackering [sic ]" that discussed placing a tracking device on a vehicle. Defendant also had a document with R.F.’s license plate number and a description of her vehicle.
Police officers later searched defendant's home and electronic storage devices. R.F.’s name appeared over 2,000 times in one device, along with hundreds of photos of her and other women. Officers also found in defendant's home several weapons and containers of ammunition. Among the guns recovered was an FN Herstal Belgium SCAR 176 (Herstal). The store defendant bought the Herstal from had to convert the gun to make it compliant with California gun laws by adding a bullet button and reducing the magazine capacity. Defendant asked the store if he could watch them make the gun compliant but they refused. When police found the Herstal in defendant's house the gun did not have the bullet button and the magazine capacity had been increased.
Police also later determined defendant had on three separate occasions stolen some of the ammunition found at his house from two sporting goods stores. Defendant was charged with stalking ( Pen. Code, § 646.9, subd. (a) —count 1), unlawfully manufacturing an assault weapon as to the Herstal ( § 30600, subd. (a) —count 2), nine counts of possession of an assault weapon, including one for the Herstal ( § 30605, subd. (a) —counts 3-11), felony commercial burglary (§ 459—count 12), felony grand theft of property (§ 487, subd. (a)—count 13), and petty theft (§ 488—count 14).
Undesignated statutory references are to the Penal Code.
See footnote *, ante .
III
Verdict and Sentencing
The jury found defendant guilty of all charges except two of the automatic weapon possession counts. The court sentenced defendant to eight months (midterm) for stalking, eight years (upper term) for unlawful assault weapon activity of the Herstal, eight months (one-third midterm) each for six of the assault weapon possessions, and eight months (one-third midterm) for commercial burglary, all to run consecutively. The court imposed and stayed pursuant to section 654 three years (upper term) for both grand theft and the remaining possession conviction for the Herstal.
DISCUSSION
See footnote *, ante .
II
Lesser Included Assault Weapons Instruction
Defendant also contends the court failed to instruct the jury on assault weapon possession ( § 30605 ) for the Herstal, a lesser included offense of unlawfully manufacturing an assault weapon ( § 30600 ) because there was substantial evidence defendant possessed the Herstal.
The issue here is not whether the trial court should have instructed on a lesser included offense, because the court did instruct the jury on possession of the Herstal (count 3) in addition to instructing them on manufacturing the Herstal (count 2). The jury also found defendant guilty of both possessing the Herstal and unlawfully making the Herstal an assault weapon. The issue then, instead, is whether defendant was subject to multiple convictions because the possession is a lesser included offense of the manufacturing conviction. We conclude it is not.
When two offenses are charged, and the defendant is convicted of both, we apply the "elements test" to assess whether one is a necessarily included offense of the other and, in turn, whether multiple convictions are proper. ( People v. Reed (2006) 38 Cal.4th 1224, 1229, 45 Cal.Rptr.3d 353, 137 P.3d 184 ["In deciding whether multiple conviction is proper, a court should consider only the statutory elements"]; People v. Scheidt (1991) 231 Cal.App.3d 162, 165-171, 282 Cal.Rptr. 228 ["only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding"].) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." ( Reed , at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.) In other words, "[i]f the crimes are defined in such a way as to make it impossible to commit the greater offense without also committing the lesser," then the lesser is necessarily included in the greater and a defendant's conviction of the lesser must be vacated. ( People v. Miranda (1994) 21 Cal.App.4th 1464, 1467, 26 Cal.Rptr.2d 610 ; Reed , at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184 [" ‘[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former’ "].)
Defendant relies on the accusatory pleading test, but this test is only applied "in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime." (People v. Reed, supra , 38 Cal.4th at p. 1231, 45 Cal.Rptr.3d 353, 137 P.3d 184.)
Section 30600 is violated when a person "manufactures or causes to be manufactured, distributes, transports, or imports into the state, keeps for sale, or offers or exposes for sale, or who gives or lends any assault weapon." ( § 30600, subd. (a).) Section 30605 is violated when a person "possesses any assault weapon." ( § 30605, subd. (a).) Possession can be actual or constructive. " ‘ "A defendant has actual possession when the weapon is in his [or her] immediate possession or control," ’ i.e., when he or she is actually holding or touching it." ( People v. Bay (2019) 40 Cal.App.5th 126, 132, 253 Cal.Rptr.3d 26.) "To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person." ( People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, 125 Cal.Rptr.3d 903, disapproved on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6, 234 Cal.Rptr.3d 434, 419 P.3d 913.)
It is possible to violate section 30600 without also violating section 30605 because possession is not necessary to satisfy several of the actions prohibited by section 30600. For example, one can "cause[ ] to be manufactured" an assault weapon without ever possessing it by paying one person to manufacture the assault weapon. Before the manufacturer ever transfers the weapon, the defendant would have violated section 30600 but not section 30605. Similarly, with importing, one can cause someone else to import an assault weapon without ever obtaining possession of that weapon. The statutory elements test is therefore not satisfied so the convictions for both manufacturing and possessing the Herstal were therefore valid.
DISPOSITION
The judgment is affirmed.
We concur:
RAYE, P. J.
ROBIE, J.