Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F08581
ROBIE, J.
A jury found defendant Keenan Lee Woodssparks guilty of felon in possession of a firearm, possession of cocaine powder for sale, transportation of cocaine powder, and found true a special allegation that defendant was armed during the commission of the latter offense. The trial court sentenced defendant to an aggregate term of eight years in state prison.
On appeal, defendant contends: (1) he was denied due process as a result of the trial court’s failure to adequately respond to the jury’s inquiry regarding possession of a firearm; and (2) the trial court’s execution of sentence for felon in possession of a firearm count and the personal arming enhancement violated Penal Code section 654. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Othello Chase was driving his teenage son, Isaiah Chase, and his girlfriend’s two teenage children, Shunisha Frazier and Rodney Frazier, around Sacramento in a white Nissan Sentra. A Cadillac full of teenagers pulled into a parking lot and parked in front of a liquor store. Othello pulled in and parked next to the Cadillac.
For ease of reference, the witnesses will be referred to herein by their first names. No disrespect is intended.
While Othello was in the store, Isaiah and Rodney talked with the kids in the Cadillac. When Othello returned to the car, he saw a dark car with a driver and one passenger pull into the parking lot and hit the Cadillac as the driver attempted to park the car. The car backed up, fishtailing as it did, and then “took off” out of the parking lot. Approximately 15 minutes later, as Othello was leaving his parking space, the dark car returned, cutting him off as he attempted to follow the Cadillac out of the parking lot. Within seconds, someone in the dark car reached out of the driver’s side window and fired several shots. Believing the shots were being fired at him, Othello told the kids to get down.
When the shooting stopped, the dark car drove off. Othello gave chase, calling 911 as he drove. Eventually, the dark car pulled into an apartment complex, driving over speed bumps without slowing down, causing several tires to come off the rims. The dark car stopped in the complex parking lot and both occupants got out and ran between the apartment buildings. Watching as the two men ran through the complex, Othello waited for police to arrive. Police apprehended defendant, whom Othello and Isaiah identified in a field showup. Shunisha identified defendant as the driver.
At trial, Othello did not recall affirmatively identifying defendant or telling police defendant was the shooter. He testified, however, that he did not want to testify because he did not want to be a “snitch.”
Adonnis Taylor, a passenger in the Cadillac, told police the passenger was the shooter. Rodney Taylor, another passenger in the Cadillac, told a police investigator the passenger was the shooter. He also said he did not want to go to court and did not want to be a “snitch.” When shown a photographic lineup that included defendant’s picture, Rodney Taylor said defendant looked familiar, but did not identify him.
Police searched defendant and the apartment complex for weapons and bullet casings but did not find any. A search of defendant’s car revealed a nine-millimeter bullet casing on the passenger-side floorboard. Police also found a piece of cellophane with cocaine on it, along with four separate packages containing a total of 9.2 grams of cocaine hidden in the car’s headliner near the sunroof.
Deputy Anthony People obtained statements from Othello and Isaiah at the scene. Othello told People the driver of a black vehicle leaned out the driver’s side window and fired two to four shots. Isaiah said he saw three to four shots fired from the black car. Both Othello and Isaiah identified defendant as the shooter.
Detective David Moranz conducted gunshot residue (GSR) tests on defendant. Defendant said he had fired a firearm in the recent past, but not that day or the day prior. Moranz tested both of defendant’s arms for GSR. Defendant’s right hand tested positive for GSR. His fingerprint was found on the exterior of the driver’s side door. The green car found at the apartment complex was registered to the defendant.
Rodney Frazier told Officer Michael Lee that when defendant’s vehicle returned to the liquor store parking lot, defendant hung his head out the driver’s side window and yelled, “What’s up now, Nigga,” then pulled out a gun and fired three to four times at their vehicle. Shunisha told Lee the same story, but said she heard only two gunshots. Shunisha and Rodney both identified defendant as the shooter.
Isaiah identified defendant and recognized him as the person who leaned out of the driver’s seat and fired the gun. Ashley Burnham, one of the passengers in the Cadillac, told investigators she never saw the shooter. Justina Chaplain, another passenger in the Cadillac, told investigators she could not identify either of the men in the dark car.
At trial, Isaiah was not sure defendant was the same person he identified at the scene.
DISCUSSION
I
Response To Jury Request For Clarification
During deliberations, the jury made the following request: “Clarification of charge 6, unlawful possession of a firearm by a felon. If the gun belonged to the passenger and was discharged only by the passenger, not by the defendant, would this charge still apply.”
The jury was provided the following response: “Even if the defendant was the driver and the gun ‘belonged to the passenger and was discharged only by the passenger,’ the defendant could still be guilty of the crime charged in Count 6. See bottom two paragraphs of the instruction at p. 30, which applies to the crime charged in Count 6 too.: [¶] 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.”
On appeal, defendant contends the trial court’s response to the jury’s inquiry failed to adequately clarify the definition of possession, thus denying him due process. Defendant now claims the trial court should have instructed the jury on the specific facts it would need to consider in order to find constructive possession of the gun.
As memorialized in the court minutes, the court and counsel met in chambers to discuss the request, after which a response was agreed to by counsel.
The record does not contain a transcript of the in-chambers discussion.
Defendant agreed to the response to the jury’s inquiry and remained silent when it was given. As such, he waived the claim he now raises on appeal. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265.) Moreover, when the trial court gives an instruction that is correct in law and the defendant’s only claim is that the court should have given an additional, amplified, explanatory, more complete or more specific instruction, the defendant must request the additional instruction and failure to do so forfeits a claim of error. (Pen. Code, § 1259; People v. Welch (1999) 20 Cal.4th 701, 757; People v. Lang (1989) 49 Cal.3d 991, 1024; People v. Carothers (1946) 77 Cal.App.2d 252, 255.) In any event, the claim lacks merit.
Once the jury retires to deliberate, it may request information on any point of law arising in the case. (Pen. Code, § 1138.) “Although this section mandates a court to provide information requested by a jury concerning any point of law arising in the case [citations], where the instructions given are full and complete in themselves, the court has discretion to determine what additional explanations or definitions are needed to satisfy the jury’s request for information.” (People v. McCleod (1997) 55 Cal.App.4th 1205, 1219-1220.)
The jury requested clarification on the issue of possession, i.e., whether defendant could still be found guilty of being a felon in possession if the gun at issue belonged to the other occupant of the dark car and was discharged by that person and not by defendant. The response agreed upon by counsel stated that defendant could indeed be found guilty of that charge, explaining that, as set forth in CALCRIM No. 2302, possession is not limited to one person exclusively nor does it require that the possessor hold or touch the firearm, only that he “has control over it or the right to control it, either personally or through another person.” The trial court, together with counsel, determined no additional explanations or definitions were necessary to satisfy the jury’s request for information. Nothing more was required.
Defendant’s assertion that the jury’s true concern was what constituted dominion and control is pure speculation. In any case, the trial court directly addressed that issue when it instructed the jury that in order to find that defendant possessed the firearm, it had to find defendant, either personally or through the passenger, had control over, or the right to control, the gun. The jury necessarily concluded as much by its verdict.
There was no instructional error.
II
Penal Code Section 654Defendant claims the charge of felon in possession of a firearm and the arming enhancement both resulted from the same gun in the car and were thus both part of a single indivisible objective. As such, the sentence for felon in possession should have been stayed pursuant to Penal Code section 654. We disagree.
Penal Code section 12022, subdivision (c), provides in relevant part: “Notwithstanding the enhancement set forth in subdivision (a), any person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four or five years.”
The crime of being a felon in possession of a firearm “is committed the instant the felon in any way has a firearm within his control.” (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410, italics omitted.)
Here, the defendant left the liquor store parking lot, then returned, at which time the weapon was fired from the driver’s side window. We can safely infer that the gun was in the car on the way back to the liquor store. Therefore, the crime of felon in possession of a firearm was committed because it was within defendant’s control.
Penal Code section 654 provides, in relevant part: “An act or omission that is punishable in different ways by different provisions of law may 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.”
Here, defendant’s possession of the firearm was not merely simultaneous with the shooting in the liquor store parking lot, but continued before, during, and likely for a brief time after that crime. Penal Code section 654 therefore does not prohibit separate punishments. (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1413.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.