Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN265023 Harry M. Elias and Aaron H. Katz, Judges.
McCONNELL, P. J.
INTRODUCTION
A jury found Derek Auten guilty of possessing a deadly weapon (Pen. Code, § 12022, subd. (a)(1)), and of resisting, obstructing and/or delaying a peace officer (§ 148, subd. (a)(1)). In addition, Auten admitted having two prior prison convictions (§§ 667.5, subd. (b), 668). The trial court sentenced Auten to three years in prison.
Further statutory references are also to the Penal Code unless otherwise stated.
Auten appeals, contending the trial court committed instructional error, and abused its discretion by admitting evidence of Auten's use of profanity during his encounter with the arresting officer. Auten also requests we independently review the in camera proceeding conducted by the trial court under Pitchess v. Superior Court (1974) 11 Cal.3d 531 and Evidence Code sections 1043 and 1045 (Pitchess proceeding) to determine whether the trial court erred in finding the arresting officer's personnel records contained no discoverable information.
We conclude Auten's first two contentions lack merit. In addition, we have reviewed the transcript of the Pitchess proceeding as well as the documents submitted to the trial court during the proceeding. We conclude the trial court did not err in finding the arresting officer's personnel records contained no discoverable information. We, therefore, affirm the judgment.
BACKGROUND
While Oceanside Police Officer Peter Munoz was patrolling a neighborhood associated with a criminal street gang, an older Hispanic man flagged him down. Munoz pulled over and the man walked over to him. The man pointed toward an alley where two other men were walking and told Munoz one of the men had "a stick or something wrapped in his shirt."
Munoz drove through the alley up toward the men, one of whom was Auten. The men were walking side by side. Auten was not wearing a shirt, but was carrying a flannel shirt with a solid object wrapped in it.
Munoz came up behind the men, got out of his patrol car and told them to "stop" and "come here." Auten's companion immediately stopped, turned around and walked toward Munoz. Auten looked back over his shoulder at Munoz and continued walking. Munoz again told Auten to "stop" and "come here."
Auten continued walking. However, instead of continuing down the middle of the alley, Auten veered left toward the fence line and started moving his hand and shirt down in front of his body away from Munoz's view.
Based on Auten's actions, Munoz thought Auten might have a weapon. Munoz drew his gun, pointed it at Auten, and yelled at Auten several times to show his hands. Auten kept walking toward the fence. He then stopped at the fence line and turned around toward Munoz. Auten held his shirt loosely in one hand. His other hand was empty.
Munoz told Auten to come to him. At that point, Auten became belligerent and started yelling profanities, including "f--k you, " "p---y" and "f----t." Auten told Munoz that he had no reason to stop him and could not stop him.
When Auten reached Munoz, Munoz told Auten to sit on the ground, but Auten refused. Munoz repeated the command and Auten eventually complied. Auten's behavior raised officer safety concerns as Munoz was alone with two people in alley in a known gang neighborhood.
After a cover officer arrived, Munoz walked directly to the spot by the fence where Auten had stopped and turned around. Munoz found a 10- to 11-inch wooden table leg or a stool leg with a string or lanyard tied around it for a handle. Munoz picked up the object, walked back to Auten, and showed it to him. Auten stated the object was not his.
DISCUSSION
I
Instructional Error
A
Possession of Object as a Weapon
Section 12020, subdivision (a)(1), prohibits possession of numerous weapons, including, as relevant here, "any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag." As part of the proof of an unlawful weapon possession charge, the prosecution must establish the object the defendant possessed had the necessary characteristics to fall within the statutory proscriptions. The prosecution must also establish the defendant knew the object had these characteristics. (People v. King (2006) 38 Cal.4th 617, 625, 627.)
To aid juries in determining whether the prosecutor has established the knowledge element, the applicable CALCRIM jury instruction, CALCRIM No. 2500, contains two alternative instructions for this element. The first alternative (alternative 3A) applies when the possessed object has innocent uses. It instructs the jury that the prosecution must prove: "The defendant [possessed] the object as a weapon. When deciding whether the defendant [possessed] the object as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was [possessed] [, ] [and] [where the defendant was going][, ] and [whether the object was changed from its standard form][, ] and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose....]" (CALCRIM No. 2500; Judicial Council of Cal., Crim. Jury Instns. (2011 ed.) Bench Notes to CALCRIM No. 2500, p. 372 (Bench Notes); Judicial Council of Cal., Crim. Jury Instns. (2011 ed.) Commentary to CALCRIM No. 2500, pp. 375-376 (Commentary).)
The second alternative (alternative 3B) applies when the possessed object's sole use is as a weapon. It instructs the jury that the prosecutor must prove, "The defendant knew that the object (was (a/an) ________<insert characteristics of weapon from Penal Code, § 12020(a)...>/could be used ________<insert description of weapon...>).]" (CALCRIM No. 2500; Bench Notes, p. 372; Commentary, pp. 375-376.)
In this case, without any objection from Auten, the trial court selected alternative 3B and instructed the jury that the prosecution must prove Auten "knew that the object was any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, or sandbag." Auten now contends the trial court prejudicially erred in selecting alternative 3B because the object he possessed had an innocent use as a table or stool leg. By not instructing the jury with alternative 3A, Auten contends the trial court unconstitutionally relieved the prosecution of its burden of proving Auten actually possessed the object as a weapon, instead of as a table or stool leg.
Auten's contention finds support in People v. Fannin (2001) 91 Cal.App.4th 1399 (Fannin). In Fannin, a police officer found a two-foot length of metal chain with a heavy padlock attached to one end in the defendant's pocket. The defendant initially told the officer the lock and chain were for his bicycle, which he had left at home. The defendant did not have the key to the lock, which was also at home. The defendant subsequently told the officer he carried the lock and chain for self-defense. (Id. at p. 1401.) The trial court convicted defendant of possession of a slungshot in violation of section 12020, subdivision (a). (Fannin, at pp. 1400-1401.)
Defendant challenged his conviction on, among other grounds, that section 12020 was unconstitutionally vague both facially and as applied to him because it encompassed ordinarily useful items, like a bicycle lock and chain, not modified for use as weapons. (Fannin, supra, 91 Cal.App.4th at p. 1402.) The appellate court rejected this challenge and construed section 12020 to avoid vagueness concerns by requiring that "if the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon." (Fannin, at p. 1404.) The appellate court clarified that, "[t]he only way to meet that burden is by evidence 'indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.' " (Ibid.) The appellate court further clarified that, "[t]he evidence may be circumstantial, and may be rebutted by the defendant with evidence of 'innocent usage.' [Citation.] The prosecution may not, however, merely show that the defendant had a table leg in his car while driving through a dangerous neighborhood, and require him to prove that he did not carry it as a weapon. Such a rule would turn the presumption of innocence on its head. Intended use is not an element of weapon possession, but the prosecution always bears the burden of proving that the defendant possessed a weapon." (Ibid.)
Fannin is distinguishable from this case because, unlike the bicycle lock and chain at issue in Fannin, the object possessed by Auten had been equipped with a handle and, therefore, was modified for use as a weapon. An ordinarily useful object sufficiently modified for use as a weapon may become a weapon per se. (People v. Grubb (1965) 63 Cal.2d 614, 621, fn. 8 (Grubb), superseded by statute on another point as noted in In re David V. (2010) 48 Cal.4th 23, 26-27.) In such circumstances, a trial court may properly give the alternative 3B, instead of the alternative 3A instruction. (Fannin, supra, 91 Cal.App.4th at p. 1405 [If an object is only useful as a weapon, the prosecution is not required to prove the defendant possessed it as a weapon. "[P]roof of mere possession is sufficient."]; CALCRIM No. 2500; Bench Notes, p. 372; Commentary, pp. 375-376.)
Even if the object Auten possessed was not a weapon per se and, by failing to the give the alternative 3A instruction, the trial court relieved the jury of its obligation to determine whether the prosecutor proved the knowledge element of the unlawful weapon possession charge beyond a reasonable doubt, the error does not require reversal. "[W]e may affirm despite the error if the jury that rendered the verdict at issue could not rationally have found the omitted element unproven; the error is harmless, that is, if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted element was not." (People v. Sakarias (2000) 22 Cal.4th 596, 625.)
Here, in order to convict Auten of the unlawful possession of a weapon charge, the jury necessarily accepted as true Officer Munoz's testimony that Auten carried a modified table or stool leg hidden under a shirt, and discarded the object when Officer Munoz approached him to investigate. The parties do not dispute the incident occurred in an alley in an area known for gang activity. Given the accepted and undisputed facts, the jury could not rationally have found Auten carried the object as anything other than a weapon. (See, e.g., Grubb, supra, 63 Cal.2d at p. 621 [section 12020 encompasses possession of a table leg when it is detached from the table and carried through a tough neighborhood to the scene of a riot].) Accordingly, we conclude the trial court's failure to give the alternative 3A instruction, if erroneous, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Jennings (2010) 50 Cal.4th 616, 676-677.)
B
Inadequate Definitions of Weapons
Consistent with the language of section 12020 and the Bench Notes for the CALCRIM No. 2500 instruction, the trial court instructed the jury: "The defendant is charged in count 1 with unlawfully possessing a weapon, specifically a billy, in violation of Penal Code section 12020(a)(1). To prove the defendant is guilty of this crime, the People must prove that: 1) the defendant possessed any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, or sandbag; [and] 2) the defendant knew that he possessed this in strument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, or sandbag; and, three, the defendant knew that the object was any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, or sandbag." (Italics added.) The trial court further instructed the jury: "A billy means a bludgeon, including one for the carrying in the pocket, or a policeman's club. (Italics added.)
Auten contends the trial court's failure to provide the jury with the definitions of the other specified weapons precluded the jury from being able to determine whether the object he possessed was actually "of the kind" prohibited by the section 12020 since the jury had no means of knowing the common characteristics or features of a blackjack, slungshot, billy, sandclub, or sandbag.
Auten's contention misapprehends the "of the kind" language. The "of the kind" language reflects a legislative intent to prohibit possession of both manufactured weapons and their homemade equivalents. (Grubb, supra, 63 Cal.2d at pp. 620-621.) The language has never been interpreted to require the prosecution to prove an object shares characteristics common to all of the proscribed weapons. Rather, the language requires the prosecutor to prove an object is one of the specifically proscribed weapons or the definitional equivalent of one of the specifically proscribed weapons. (See, e.g., People v. Mayberry (2008) 160 Cal.App.4th 165, 171-172; People v. Mulherin (1934) 140 Cal.App. 212, 214; People v. Mercer (1995) 42 Cal.App.4th Supp. 1, 4-5.)
Moreover, the trial court specifically informed the jury in this case that Auten was charged with unlawfully possessing a billy. The trial court also informed the jury of the definition of a billy. The object Auten possessed, which the jury had an opportunity to view firsthand, fit squarely within this definition. Therefore, even if the trial court erred by failing to provide the jury with comparative definitions of the other proscribed weapons, there is no reasonable likelihood the error contributed to the jury's verdict as the jury could not rationally have found the object Auten possessed was not a billy. Accordingly, we conclude any such error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Jennings, supra, 50 Cal.4th at p. 678.)
C
Cumulative Prejudicial Effect of Instructional Errors
Auten contends the cumulative prejudicial effect of his claimed instructional errors denied him a fair trial. As we have concluded both of the claimed errors were harmless beyond a reasonable doubt, we conclude the cumulative effect of the claimed errors did not deprive Auten of a fair trial. (People v. Jablonski (2006) 37 Cal.4th 774, 832.)
II
Evidence of Auten's Profanity
Before trial, the prosecution sought the trial court's authorization to introduce statements Auten made to Officer Munoz during their encounter. Because the statements included "base, vulgar, [and] disrespectful language, " defense counsel objected to the admission of the statements as more prejudicial than probative and likely to inflame the jury. The prosecution countered that admission of the evidence was necessary for the jury to fully appreciate the circumstances underlying the resisting or delaying an officer charge.
The trial court acknowledged admission of Auten's remarks to Officer Munoz could prejudice the jury; however, the court also acknowledged the People should be able to give the jury an accurate presentation of the events underlying the resisting or delaying an officer charge. The trial court resolved the matter by ruling Officer Munoz could testify Auten used vulgar language and recite the least inflammatory statement as an example; however, Officer Munoz could not testify about the specifics of the other more inflammatory statements. Instead, the trial court limited Officer Munoz's testimony to stating Auten used profanity, including the word "f--k, " and referred to the officer as a "f t." The trial court explained it wanted the focus of Officer Munoz's testimony to be on Auten's behavior, not on Auten's language, so the jury would not convict Auten because of his vulgarity.
Consistent with the trial court's ruling, Officer Munoz testified that, when he detained Auten, Auten immediately started "yelling profanities and being uncooperative." When asked what types of things Auten said, Officer Munoz testified Auten repeatedly said, "f---k you, p---y, and f----t" during the encounter. No further questioning about Auten's profanity occurred.
Auten contends admission of the profanity evidence deprived him of his federal constitutional right to due process and a fair trial. We disagree.
A trial court has broad discretion under Evidence Code section 352 "to assess whether the probative value of certain evidence 'is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citations.] A trial court's discretionary ruling under this statute ' "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Williams (2008) 43 Cal.4th 584, 634-635.)
In this case, the trial court expressly weighed the probative value of the profanity evidence against its potential prejudicial effect. The trial court concluded it was necessary to admit some of the profanity evidence to provide the jury with an accurate context for the resisting or delaying an officer charge. The trial court, however, sharply limited the evidence to Auten's least offensive remarks and directed the prosecution to focus on Auten's conduct, not his profanity. It is apparent from these circumstances that the trial court did not exercise its discretion in an arbitrary, capricious or patently absurd manner. (People v. Williams, supra, 43 Cal.4th at pp. 634-635.)
Moreover, we note from the record that the prosecution actually elicited less profanity evidence than the trial court permitted — just three profane remarks comprising a few seconds of testimony. While the remarks were distasteful and disrespectful, they were not particularly shocking. Consequently, we cannot conclude their potential prejudicial effect clearly outweighed their probative value, or that their admission resulted in a manifest miscarriage of justice, violated Auten's due process rights, or otherwise deprived him of a fair trial.
V
Pitchess Proceeding
Before trial, Auten moved for discovery of information in Officer Munoz's personnel records under Pitchess v. Superior Court, supra, 11 Cal.3d 531 and Evidence Code sections 1043 and 1045. The trial court granted the motion in part, agreeing to review Officer Munoz's personnel records to determine whether they contained discoverable information related to acts of dishonesty or making false reports. After reviewing the records in camera, the trial court determined they contained no discoverable information.
At Auten's request, we have independently reviewed the sealed transcript of the Pitchess proceeding and the records submitted to the trial court during the proceeding. We conclude the trial court did not err in finding there was no discoverable information in the records.
The transcript of and the documents reviewed by the trial court in the Pitchess proceeding were not initially included in the appellate record in this case. Despite his request for our review of the Pitchess proceeding, Auten did not take any steps to have the transcript and documents included in the record. (See Cal. Rules of Court, rules 8.324(b)-(c), 8.328(c).) We exercised our discretion to augment the appellate record on our own motion. (Cal. Rules of Court, rules 8.155(a), 8.340(c).) "[T]he failure of counsel to perfect the record delays the processing of cases and wastes judicial resources. Accordingly, we urge appellate counsel to ensure that the record is properly perfected in cases in which a Pitchess claim is raised." (People v. Rodriguez (2011) 193 Cal.App.4th 360, 366.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., IRION, J.