Opinion
No. 36822-6-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00270-7, Roger A. Bennett, J., entered September 5, 2007.
Reversed and remanded by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Armstrong, J.
UNPUBLISHED OPINION
Rene Hernandez Castillo appeals his jury conviction for unlawful possession of a firearm and the associated 18-month firearm sentencing enhancement. He argues that (1) the trial court erred in failing to instruct the jury on the "knowledge" element of unlawful firearm possession, (2) his trial attorney was ineffective in stipulating to his (Castillo's) prior conviction for second-degree assault by name and allowing the jury to examine the judgment and sentence for this crime rather than stipulating simply that he had been previously convicted of a felony that prohibited his possessing a firearm, and (3) RCW 9.94A.533(3)(f) prohibits attaching a firearm enhancement to a sentence for unlawful possession of a firearm.
In his Statement of Additional Grounds, Castillo argues that his trial attorney was ineffective in (1) stating that his (Castillo's) offender score was "seven" instead of "six," (2) failing to conduct an independent fingerprint analysis, and (3) failing to interview any of the witnesses. He also argues that the State's forensic expert altered the fingerprint evidence.
RAP 10.10.
Holding that failure to instruct the jury on the knowledge element was error, we reverse and remand Castillo's unlawful possession of a firearm conviction, Count I, for a new trial.
FACTS I. Unlawful Possession of Firearm
On February 12, 2007, City of Vancouver police officers received information that Rene Hernandez Castillo, who had an outstanding felony arrest warrant, was visiting a residence at the 3300 block of South Street in the Rosemere neighborhood. Between 12:00 and 1:00 am, the officers parked their cars at a local mini-mart, and several of them checked the neighborhood on foot for Castillo.
At that time, Castillo was visiting his uncle's home in the Rosemere neighborhood. Around midnight, Castillo asked his uncle's friend John Newberry for a ride down the road. Newberry agreed, and the two men left in Newberry's Ford Mustang. Meanwhile, the officers on foot saw people leaving the 3300 block residence in a Ford Mustang and advised the other officers in the parking lot. Within a few seconds, the Ford Mustang stopped at a stop sign less than 100 feet from the officers parked in lot. Officer Jeffrey Wilken, in one of the parked police cars, turned on his lights and pulled-over the Mustang.
As Wilken approached the Mustang, he noticed movement on the car's passenger side. Several other police officers joined Wilken, surrounded the Mustang, and asked Newberry and Castillo to exit with their hands up. Newberry and Castillo complied. As Castillo exited the passenger side of the Mustang, the police officers saw him drop a white, golf-ball-sized object on the ground. The officers frisked and handcuffed Castillo before placing him in the backseat of a patrol car. They also read Castillo his Miranda warnings. Castillo acknowledged that the object he had dropped was methamphetamine, and the officers transported Castillo to the police station.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The officers separately questioned Newberry and took his statement. The record before us on appeal contains no details about whether the officers arrested Newberry, where they questioned him, or what he told the officers.
Then the police officers searched the Mustang. They found a fully loaded .38-caliber handgun jammed into the space between the cushion of the front passenger seat and the center console.
II. Procedure
By amended information, the State charged Castillo with unlawful possession of a controlled substance (methamphetamine) and unlawful possession of a firearm in the first degree. The State also asserted (1) a special firearm sentencing enhancement for Count II (possession of a controlled substance); and (2) a special sentencing enhancement for committing Count I (unlawful possession of a firearm) "shortly after being released from incarceration." A jury tried the case.
A. State's Evidence
The parties stipulated to admitting the following three items of evidence: (1) Castillo's ink fingerprint card; (2) Castillo's June 29, 2005 Judgment and Sentence for second-degree assault with a deadly weapon; and (3) the Crime Laboratory's report, confirming that the substance was methamphetamine.
The trial court admitted the 2005 Judgment and Sentence into evidence as Exhibit 16. We note that the copy of the judgment and sentence appended to the Br. of Resp. at Appendix B contains Castillo's criminal history, which was not appended to Exhibit 6 provided to the jury.
Police officers testified to the facts set forth above, including that Castillo admitted at the scene that the object he dropped was methamphetamine. In addition, Officer Jason Beach testified that he had given this object to the Washington State Patrol Crime Laboratory ("Crime Laboratory"), which confirmed it was 11 grams of methamphetamine.
Mike Bailey (Mike), the father of Castillo's girlfriend, Stephanie, testified that the police officers came to his home to search Stephanie's belongings for evidence related to Castillo. After the police left, Mike later found four or five .38-caliber-handgun bullets in the bottom of the passenger-side glove box of his daughter's car; Mike reported this to the police. Mike further testified that neither he, Stephanie, nor anyone else in his house, owned a .38-caliber handgun.
This memorandum identifies the Bailey witnesses by their first names for clarity. We intend no disrespect.
Stephanie testified that (1) she had given Castillo a ride approximately one week before his arrest; (2) she did not remember whether Castillo had opened her glove box at that time; (3) she had owned the car for nine months before this incident; (4) during that time, she gave rides to approximately 20 people; (5) she did not remember any of her passengers opening the glove box; (6) she did not give her car keys to Castillo at any time; and (7) she did not own a firearm.
Stacy Auman, a forensic scientist at the Crime Laboratory, testified about analyzing two latent fingerprints lifted from the bullet cartridges found in Stephanie's car. Auman concluded that these prints originated from the same source, but she did not identify the source; in particular, she did not testify that these prints were Castillo's.
Testifying for the State, Newberry denied that the handgun belonged to him, admitted that he had several felony convictions; and acknowledged that he knew it was illegal for him, a felon, to possess a firearm. Newberry further testified that (1) just before the police officers walked up to the Mustang, Castillo had said he "needed some help; (2) Castillo had an object in his hand, but he (Newberry) did not see what it was; (3) the object was reflective and metallic "like [an] aluminum can or chrome"; (4) Castillo tried to place the object somewhere in the dashboard; and (5) Castillo then tried to open the car door, but he could not do so because the door's lock was broken. When the State asked Newberry if he remembered Castillo's placing the object in the console between the Mustang's front seats, Newberry responded that he was "not exactly sure" where Castillo had put the object. Newberry agreed, however, that he had seen Castillo reach into the console.
B. Jury Instructions
The trial court gave the jury the following "to convict" instruction for unlawful possession of a firearm:
To convict the defendant of the crime of unlawful possession of a firearm in the first degree, as charged in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 12th day of February, 2007, the defendant had a firearm in his possession or control;
(2) That the defendant had previously been convicted of Assault in the Second Degree, which is a serious offense; and
(3) That the possession or control of the firearm occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Clerk's Papers at 17. This instruction mirrored the "to convict" instruction that Castillo's defense counsel proposed, which, in turn, mirrored the Washington Pattern Jury Instruction, 133.02, for "Unlawful Possession of Firearm or Pistol." Castillo's proposed instruction similarly omitted the "knowledge" element.
The Washington Pattern Jury Instruction for "Unlawful Possession of Firearm or Pistol" provides:
To convict the defendant of the crime of unlawful ownership or possession of a short firearm or pistol, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant [owned a firearm] [or] [had a firearm in [his] [her] possession or control];
(2) That the defendant had previously been [convicted] [adjudicated guilty as a juvenile] [or] [found not guilty by reason of insanity of [(name of serious offense)], [a serious offense]; and
(3) That the [ownership] [or] [possession or control] of the firearm occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any of these elements, then it will be your duty to return a verdict of not guilty.
11A Washington Pattern Jury Instructions: Criminal § 133.02 at 567 (2008).
None of the jury instructions included the "knowledge" element of the unlawful firearm possession offense. Castillo's attorney neither objected to this omission, nor proposed an instruction on the "knowledge" element.
C. Verdict and Sentencing
The jury found Castillo "guilty" of both counts (unlawful possession of a firearm and unlawful possession of a controlled substance). The jury also found by special verdict that Castillo was armed with a firearm when he possessed the methamphetamine, and that he had committed the offenses "shortly after being released from incarceration," an aggravating sentencing circumstance.
At sentencing, the parties agreed that, with an offender score of six, Castillo should receive the statutory maximum of 60 months on Count II (possession of methamphetamine). The standard range for Count I (unlawful possession of a firearm) was 57-75 months. Based on RCW 9.94A.533, the State argued that the trial court should add the firearm enhancement to the longer sentence for Count I because the trial court lacked authority to impose a sentence that exceeded the 60-month maximum on Count II. Thus, the State recommended 75 months confinement on Count I, 60 months on Count II (to run concurrently with the 75 months imposed on Count I), 18 months for the firearm enhancement, and 12 months for the aggravating factor (rapid recidivism).
On Count I, the trial court sentenced Castillo to 60 months of confinement, plus 18 months for the firearm enhancement and 12 months for the recent recidivism enhancement, for a total of 90 months confinement. On Count II, the trial court sentenced Castillo to 60 months of confinement, to be served concurrently with the sentence on Count I.
Castillo's attorney told the trial court that a rapid recidivism aggravator does not require the court to go outside the standard range. Castillo's attorney otherwise voiced no objection to any of the sentencing enhancements.
Castillo appeals his firearm possession conviction and the firearm sentence enhancement.
Castillo does not appeal his conviction for possession of methamphetamine or the other sentence enhancement.
ANALYSIS I. "Knowledge" Element
Castillo argues that the trial court committed reversible error in failing to instruct the jury on the "knowledge" element of unlawful possession of a firearm. We agree.
A. Standard of Review
Although Castillo neither objected to omission of the "knowledge" element from the "to convict" instruction nor proposed a correct instruction, appellate courts may review an issue for the first time on appeal if it is "a manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988). Failure to instruct on an element of the offense is an error of constitutional magnitude. State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001). Instructions allowing the jury to convict the defendant without finding an essential element of the crime charged improperly relieve the State of its burden to prove all elements of the crime charged beyond a reasonable doubt; this type of error violates the defendant's constitutional right to a fair trial. Id. Castillo alleges that omission of the knowledge element from the "to convict" instruction is such a manifest error affecting this constitutional right.
We review de novo alleged errors of law in the jury instructions. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Jury instructions are proper when they (1) permit the parties to argue their theories of the case, (2) do not mislead the jury, and (3) properly inform the jury of the applicable law. Id.
An erroneous jury instruction that omits an element of the offense is subject to harmless error analysis. State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002) (citing Neder v. United States, 527 U.S. 1, 9-10, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). When dealing with an omitted element in a jury instruction, the error is harmless when (1) uncontroverted evidence supports that element, Brown, 147 Wn.2d at 341 (citing Neder, 527 U.S. at 18), and (2) when the reviewing court can "conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error." Brown, 147 Wn.2d at 341 (quoting Neder, 527 U.S. at 19). Conversely, omitting an element from the "to convict" instruction is reversible error when only weak or controverted evidence "supports" the missing element and we cannot conclude beyond a reasonable doubt that the verdict would have been the same absent the error. See State v. Borrero, 147 Wn.2d 353, 370, 58 P.3d 245 (2002). Under this standard, we do not conclude that the instructional error was harmless.
B. Failure to Instruct on the "Knowledge" Element
Castillo contends that because "knowledge" was an essential element of unlawful possession of a firearm, which the State had the burden of proving, the absence of a jury instruction on "knowledge" was reversible error. The State counters that the trial court's failure to include a jury instruction on the knowledge element of the offense was, at most, harmless error because the outcome would have been the same without this omission. The law and facts support Castillo's argument.
1. Improper shift in burden of proof
RCW 9.41.040(1)(a) defines "Unlawful Possession of Firearm" as follows:
A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense as defined in this chapter.
Although RCW 9.41.040(1)(a) does not expressly include "knowledge" as an element of unlawful firearm possession, our Washington Supreme Court has held that "knowledge" is an additional non-statutory element that the State must prove beyond a reasonable doubt. State v. Anderson, 141 Wn.2d 357, 359, 5 P.3d 1247 (2000). In reversing the court of appeals holding that unlawful firearm possession is a strict liability offense, the Supreme Court held that because "knowing possession" was an element of unlawful possession of a firearm and it did not appear in the "to convict" instruction, Anderson did not receive a fair trial. Id.
The Anderson trial court specifically instructed the jury that "knowledge" was not an element of the offense. Here, in contrast, the trial court simply omitted the "knowledge" element from the "to convict" instruction. Nevertheless, the effect was the same in both cases: Both instructions improperly relieved the State of its burden of proving an essential, non-statutory element of the crime — knowledge — beyond a reasonable doubt, contrary to the dictates of Anderson. Id. at 366-67.
Our analysis in Cuble is also instructive. State v. Cuble, 109 Wn. App. 362, 364, 35 P.3d 404 (2001). The Cuble "to convict" instruction for first-degree unlawful possession of a firearm was almost identical to the "to convict" instruction that the trial court gave here: The Cuble instruction similarly omitted the essential element of "knowledge," which, taken together with Cuble's unwitting possession instruction, erroneously shifted the burden of proof from the State to Cuble. Id. at 370. Holding that a defective jury instruction that shifts the burden of proof to the defendant requires reversal, we reversed Cuble's conviction. Although, unlike Cuble, Castillo did not propose an unwitting possession instruction, the effect of the trial court's omission of knowledge from the "to convict" instruction nonetheless relieved the State of its burden to prove that Castillo knew that the handgun was in Newberry's car.
Accordingly, as we concluded in Cuble, Castillo's "to convict" instruction was erroneous because it failed to instruct the jury that the State had the burden of proving that Castillo "knowingly possessed" the firearm. See Id. at 369.
2. Error not harmless
We next consider whether this error was harmless or reversible. Castillo argues that the error requires reversal because we cannot conclude, beyond a reasonable doubt, that his verdict would have been the same without the erroneous instruction. We agree.
Under Brown, uncontroverted evidence does not support the "knowledge" element because the State's evidence against Castillo was circumstantial and inconclusive. First, although Castillo readily admitted to possessing the methamphetamine, he denied possessing the handgun. Second, the car in which the police found the gun belonged to Newberry, who was also driving the car; moreover, the police found the handgun between the front seat and the center console, where either Newberry or Castillo could have placed or reached it. Third, although Newberry testified that he saw Castillo try to put a metallic object in the dashboard, Newberry could not see what the object was and he was "not exactly sure" where Castillo actually put it. Fourth, because he was a felon, Newberry had strong motivation to deny that the handgun was his: He understood that admitting to possessing the handgun would likely expose him to prosecution for unlawful possession of a firearm.
Fifth, the only connection between Castillo and the bullets Mike Bailey found in his daughter's car is that they were designed for the same type of gun (.38-caliber handgun); there is no evidence that Castillo owned these bullets. And although the State's fingerprint expert lifted two usable prints from the bullets found in Stephanie's car, the expert did not testify at trial about whose fingerprints they were; and specifically no one ever identified these prints as Castillo's. Sixth, Stephanie Bailey testified that she did not know whether Castillo had put anything in her glove box and that she never gave him the keys to her car.
Based on this evidence, the jury could have found that Castillo did not know that the handgun was in Newberry's car. Consequently, it would be difficult, if not impossible, to say, beyond a reasonable doubt, that the jury verdict would have been the same absent the erroneous instruction. Omitting the knowledge element from the "to convict" instruction relieved the State from proving unlawful possession of a firearm beyond a reasonable doubt and, therefore, was not harmless error. Accordingly, we reverse Castillo's firearm possession conviction and remand for a new trial.
Because we reverse and remand for a new trial, we do not address Castillo's argument that his trial attorney was ineffective in stipulating to his prior conviction for second-degree assault instead of stipulating merely to a prior qualifying felony in general. For the same reason, we need not address Castillo's SAG arguments.
II. Firearm Enhancement
Because this issue may arise on retrial, we address Castillo's argument that the trial court erred in using the firearm enhancement to increase his sentence for unlawful possession of a firearm. We agree with Castillo that RCW 9.94A.533(3)(f) does not grant the trial court this authority.
The jury found Castillo guilty of first-degree unlawful possession of a firearm under Count I. The jury also found that Castillo was armed with a firearm when he possessed methamphetamine, as alleged in Count II. At sentencing, however, the trial court decided that, because it could not add the firearm enhancement to the maximum term of 60 months for Count II (possession of methamphetamine), it would add Castillo's firearm enhancement to Count I (unlawful possession of a firearm) instead.
In deciding to add the enhancement to Count I, the trial court relied on RCW 9.94A.533, which provides:
If the offender is being sentenced for more than one offense, the firearm enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a firearm enhancement.
But RCW 9.94A.533(3)(f) expressly forbids adding a firearm enhancement to a sentence for first degree unlawful possession of a firearm. RCW 9.94A.533(3)(f), "Adjustment to Standard Sentences," expressly provides:
The firearm enhancements in this section shall apply to all felony crimes except the following: Possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree and use of a machine gun in a felony.
RCW 9.94A.533(3)(f) (emphasis added). This explicit statutory limitation prohibits the trial court from enhancing Castillo's firearm possession sentence under RCW 9.94A.533(3). It was erroneous during Castillo's first trial, and it would be erroneous to impose such a sentence enhancement following a retrial and conviction.
We reverse Castillo's unlawful firearm possession conviction, Count I, and remand for a new trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Armstrong, J. and Van Deren, C.J., concur.