Opinion
C086409
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. HOMER GENE BLACK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F06222)
Following a bench trial, the trial court found defendant guilty of two counts of possession of a firearm by a felon (counts two and three) and one count of possession of ammunition by a felon (count four). Defendant was found not guilty of assault with a firearm (count one) and of unlawful discharge of a firearm (count five). On appeal, he contends: (1) there was insufficient evidence to support his conviction for count two; (2) the trial court abused its discretion in imposing the upper base term of three years for count two; and (3) the electronic search condition of probation was unconstitutionally overboard. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The victim was in the process of repossessing defendant's car and backing his tow truck into position when he heard a loud "pop." He thought that a tire on his tow truck had blown out but later checked his tires and found them all intact. Defendant approached the cab of the tow truck and pointed a gun at the victim. The victim thought the gun was a revolver and stated that he knew the difference between different types of handguns. Defendant put the gun down, and the two men argued until the victim "gave up" and left. The victim drove a short distance and then called the police to report the incident.
Counsel for the parties stipulated, inter alia: "If called to testify, Charles Bauer would say that he was awaken by a single gunshot at 0245 hours. He did not hear anything else nor did he see who fired the one round"; Detective Robinson would testify that during the execution of a search warrant at defendant's home, "he located a 9mm High Point semi-automatic firearm in a cupboard in the kitchen" with a damaged handle and trigger guard as well as "[a] magazine with [seven] 9mm rounds"; defendant was not the registered owner of the semiautomatic firearm; "In the kitchen trash can a .45 caliber Winchester casing was located"; "A 9mm hollow point bullet was found in a nightstand in the master bedroom near indicia belonging to [defendant]"; defendant was tested for gunshot residue.
In his defense, defendant testified that he thought the victim was stealing his car, so he grabbed a gun he claimed was a "hunk of metal" and not in working condition in order to scare the victim away. He claimed that he kept the gun in his pocket the entire time during the altercation with the victim. He denied shooting the gun at any point that night. Defendant claimed that after the victim left, he then moved his car "a block or so, just trying to hide it around the corner."
In summation, the prosecutor argued that the gun related to count two, possession of a firearm by a felon, was not the nine-millimeter semiautomatic firearm recovered from defendant's kitchen cupboard but "another firearm" that was capable of shooting the .45-caliber Winchester casing recovered from defendant's trash can. She argued defendant must have fired an operable gun separate from the broken gun recovered from his home because the gunshot residue report indicated defendant had gunshot residue on his hands. She argued that defendant had an opportunity to dispose of the gun when he moved his car.
Following a bench trial, the trial court found defendant guilty of two counts of possession of a handgun by a felon (counts two and three) and one count of possession of ammunition by a felon (count four). The court found defendant not guilty of the remaining counts. In finding defendant guilty of count two, the trial court reasoned: "[A]n independent witness heard what he believed to be a gunshot. Gunshot residue was found on [defendant]. An expelled casing was found on top of a trash [can], to indicate recent deposit. The Court finds the testimony that a nonfunctioning gun was used in self-defense to be unreasonable and not supported by the evidence. The circumstantial evidence points to only one reasonable conclusion, and the Court does find [defendant] guilty . . . ."
The court imposed sentence as follows: the upper term of three years as to count two plus one third the midterm of eight months as to count three, consecutive. Further, the court imposed and stayed sentence as to the ammunition charge (count four) pursuant to Penal Code section 654. The court then suspended execution of sentence and placed defendant on five years' formal probation on various terms and conditions, including an electronic search condition under section 1546. The search condition provided: "Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any objects under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] . . . [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all necessary to conduct a search."
Further undesignated sections are to this code.
DISCUSSION
I
Sufficiency Of The Evidence
Defendant contends the evidence was insufficient to support his conviction on count two because "the evidence was insufficient to establish [he] possessed more than one weapon." We disagree.
In reviewing a challenge to the sufficiency of the evidence supporting a conviction, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "[I]t is the[trier of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 933.) "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Defendant was charged with assault with a firearm in count one. The first charge of possession of a firearm by a felon (count two) was described as "the handgun used in Count One." In count three, defendant was charged with possession of a firearm by a felon described as "a loaded Hi-Point 9mm semi-automatic firearm." There is no dispute defendant was in possession of the inoperable nine-millimeter handgun as charged in count three. The only question then, is, whether there was sufficient evidence defendant was also in possession of another gun that was operational (count two).
The victim testified that the gun he saw was a revolver as opposed to a semiautomatic. Further, the victim heard an unexplained pop similar to a gunshot, a separate witness heard a gunshot, there was an expelled .45-caliber casing on top of defendant's trash, and defendant had gunshot residue on his hands. It was reasonable for the trial court to infer from the placement of the .45-caliber casing that it had been recently placed in the trash and that it was unreasonable that defendant would have used an inoperable gun to confront the victim when he believed the victim was stealing his car. Further, it was reasonable for the trial court to infer that defendant possessed and fired an operational gun that night because two witnesses heard a sound like a gunshot and defendant had gunshot residue on his hands. This is strong circumstantial evidence that defendant had another gun that was operational. These circumstances, and the inferences therefrom, reasonably justify the trial court's finding defendant guilty of possession of two separate firearms.
The trial court's findings in acquitting defendant of the other charges do not, as defendant claims, evidence an inconsistent decision. The trial court acquitted defendant of assault with a firearm because it concluded that the prosecutor had failed to prove an element of the crime, namely, that defendant did not act in reasonable defense of his property. This verdict is not at all inconsistent with the court's conclusion that defendant illegally possessed more than one gun. Further, the trial court acquitted defendant of discharging a firearm in a negligent manner which could result in injury or death to a person because the evidence did not demonstrate "that when the gun was fired it was fired in such a way that the act amounted to a disregard for human life or an indifference to the consequences of that act." This finding is not inconsistent with the court's verdict on count two either; in fact, the court reiterated that it was persuaded by the evidence that defendant fired a working gun. While only the nine-millimeter gun was recovered from defendant's home and the evidence could support a contrary finding, this does not justify reversal. Accordingly, we reject defendant's claim that substantial evidence does not support his conviction.
II
Abuse Of Discretion In Sentencing
Defendant contends the trial court erred in not stating a reason for imposing the upper term on count two. The People argue that defendant forfeited this claim in failing to object in the trial court. We agree with the People.
A
Defendant Has Forfeited His Argument
For the first time on appeal, defendant argues the court abused its discretion in imposing the upper term on count two because the record does not justify the imposition of the upper term. However, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) This doctrine "appl[ies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.) Defendant has therefore forfeited this argument. His argument that defense counsel implicitly raised an objection by requesting that defendant receive probation is unavailing. Defense counsel did not submit a written statement in mitigation of punishment nor did he advocate for a minimal term of imprisonment at the sentencing hearing. He simply asked the court to follow the probation department's recommendation and grant probation, which the court did. Had counsel objected to the court's imposition of the upper term or failure to state its reasons for selecting that term under California Rules of Court, rule 4.420(e), the court would have had the opportunity to correct the error.
Further rule references are to the California Rules of Court. --------
B
Trial Counsel Was Not Ineffective
As a secondary argument, defendant contends his trial counsel was ineffective for failing to object to the imposition of the upper term as to count two. We conclude that there was no prejudice in defense counsel's failure to object to the court's decision to sentence him to the upper term. (See People v. Ledesma (1987) 43 Cal.3d 171, 216-217 [prejudice is the second requirement of a successful ineffective assistance of counsel argument; deficient performance is the first].)
An upper term sentence may be based upon "any aggravating circumstance that the court deems significant" or any other circumstance, even if it is not enumerated in rule 4.421, so long as it is " 'reasonably related to the decision being made.' " (People v. Sandoval (2007) 41 Cal.4th 825, 848, quoting rule 4.408(a).) A single valid factor is enough to justify imposition of an aggravated term. (See People v. Black (2007) 41 Cal.4th 799, 813, overruled on another ground in Cunningham v. California (2007) 549 U.S. 270, 293 [166 L.Ed.2d 856, 876].)
Despite defendant's contentions, there were several valid factors supporting the upper term, including defendant's numerous criminal convictions as an adult increasing in seriousness. His criminal history included the following: possession of a controlled substance in 1988; selling a controlled substance in 1995; felony evading a peace officer in 1995; and several traffic-related convictions between 1999 and 2005 (exhibition of speed, reckless driving, and driving with a blood-alcohol content over .08 percent). Rule 4.421(b)(2) specifies that it is an aggravating circumstance that " 'defendant's prior convictions . . . are numerous or of increasing seriousness.' " (People v. Black, supra, 41 Cal.4th at p. 818.) Defendant's convictions are numerous and his convictions in this case are arguably of increasing seriousness. Further, defendant's prior performance on probation was unsatisfactory within the meaning of rule 4.421(b)(5): his probation was revoked and he was ordered to serve an additional 120 days in regard to his first felony conviction for possession of a controlled substance. The existence of any one of these factors in aggravation would have been enough to impose the upper term. (Black, at p. 813.)
For the foregoing reasons, we conclude it is not reasonably probable defendant would have received a more favorable outcome had defense counsel objected. The upper term was justified, and the court could have stated any of the aforementioned reasons on the record. Defendant has not shown that it is reasonably probable the trial court would have imposed a lesser term if defense counsel had objected to the court's imposition of the upper term or its failure to state reasons for imposing it. Accordingly, defendant was not prejudiced by defense counsel's failure to object.
III
Electronic Search Condition
Defendant contends the electronic search condition is unconstitutionally overbroad. Challenges to probation conditions ordinarily must be raised in the trial court; if they are not, appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Because defendant did not object to the electronic search condition in the trial court, he has forfeited his ability to challenge both the probation condition's reasonableness and any claim concerning its constitutionality as applied to him. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) However, a defendant who did not object to a probation condition at sentencing may raise a challenge to that condition on appeal if that claim "amount[s] to a 'facial challenge,' " i.e., a challenge that the "phrasing or language . . . is unconstitutionally vague and overbroad," (id. at p. 885) that is, a " ' "pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court" ' " (id. at p. 889). Such a claim "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts . . . ." (Id. at p. 885.)
A review of defendant's overbreadth claim shows that it is not a facial challenge presenting a pure question of law. Defendant argues "the convictions in this case do not involve the use of . . . electronics." The implication of this argument is that the circumstances of his convictions could not support the application of the electronic search condition. To assess whether such circumstances exist in this case and review defendant's appellate claim, we would have to look at the record, particularly as it relates to defendant's history and the circumstances of this crime. Since the alleged constitutional defect is correctable by reference only to the factual record, it is not a facial constitutional challenge, and the claim it is overbroad has been forfeited by failing to object in the trial court. (In re I.V. (2017) 11 Cal.App.5th 249, 260-261; People v. Kendrick (2014) 226 Cal.App.4th 769, 777-778.)
To the extent there remains a portion of defendant's claim that is a pure legal question and thus properly raises the claim that the condition is facially overbroad, we reject that contention. In a facial overbreadth challenge to an electronic search condition, the question is whether the search condition, in the abstract, and not as applied to the particular probationer, is insufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (In re Sheena K., supra, 40 Cal.4th at p. 885.) The answer here is "no." Electronic search conditions are not categorically invalid. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1128.) Thus, although application of this search condition could be constitutionally overbroad as applied to certain probationers, in other circumstances it may be entirely appropriate and constitutional. The criminal offense or defendant's personal history may provide a sufficient basis on which to conclude the condition is a proportional means of deterring future criminality. (Id. at pp. 1128-1129.) In those cases, the imposition of such probation conditions would be constitutional. Because there could be circumstances in which such a condition was appropriate, we reject the claim that the electronic search condition is facially overbroad.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.