Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F02553
HULL, J.Following a jury trial in which defendant Cory Juan Braden was convicted of unlawful possession of a firearm (Pen. Code, § 12021, subd. (c)(1)), imposition of sentence was suspended and defendant was placed on five years’ probation conditioned upon serving 365 days in jail. He now appeals that conviction.
His sole contention on appeal is that the trial court prejudicially misinstructed the jury regarding the issue of defendant having come into possession of the firearm without planning or preparation. We affirm the judgment.
Facts and Proceedings
In March 2006, defendant and Eddy Bustillos had been coworkers for about a year. On March 2, 2006, defendant, Bustillos and a few friends and coworkers went to a local bar. Bustillos had bruises on her face and a black eye. Bustillos and a coworker, Tricia Kyoto, were discussing the bruising and Bustillos admitted that her then boyfriend, Marcus Moreno, had caused them. Moreno and Bustillos had been living together, but she had kicked him out of the house the day before.
Bustillos claimed Moreno accidentally gave her the black eye, a claim of which her coworker was skeptical. Defendant was present during this conversation. Bustillos was drinking that night and became intoxicated. Defendant was also drinking, but not as much because he was driving. Bustillos, Kyoto and defendant left the bar together and went to get something to eat. Afterwards, defendant dropped Kyoto off at home and took Bustillos home.
When they arrived at Bustillos’s home, she saw Moreno standing outside his friend’s apartment. Bustillos walked toward her apartment and started talking to Moreno. Moreno was angry. He asked what she was doing with defendant, then started yelling at her and pushing her. As Bustillos and Moreno continued to argue, defendant got out of the car to be sure Bustillos was “okay.”
Moreno did not appreciate defendant’s interference in the argument, which then led to defendant and Moreno arguing. Bustillos was telling them to stop, got between the two of them and started pushing Moreno to leave. Neither Moreno or defendant would “back[] off.” Finally, Moreno said, “Whatever” and went into his friend’s apartment. Bustillos then asked defendant to leave, but he refused to do so. He continued arguing and yelling at Moreno, “If you want to hit somebody, hit a man. Why can’t you hit a man?”
Moreno came back outside, continuing to argue with defendant and “acting like he was going to fight him.” Moreno wanted to know why defendant was protecting Bustillos and he continued “talking crap” about her. Defendant then walked to his car, which was approximately 10 feet away, and got a gun out of the trunk. The gun appeared to be a rifle. He walked back towards Moreno and Bustillos. Bustillos was begging him to just leave and not to do this. Bustillos tried to get in front of Moreno, while Moreno answered, “If he could get it out, he could do it.” Bustillos moved out of the way, defendant fired shots into the ground and the air and then returned to the car, placed the rifle in the trunk, and drove off.
Sacramento County Sheriff’s Deputy James Knacke responded to the call of shots fired at the apartment complex. Upon investigation, the deputies found four shell casings in the parking area and found an area which looked like a bullet had been fired into the ground. The shell casings appeared to be from a rifle.
Initially, defendant admitted he had been at the apartment complex, but denied there had been any shooting. When confronted with the fact that Moreno and Bustillos had both indicated he had a gun and that casings had been found at the scene, defendant stated the gun belonged to his friend, Tony, in Rancho Cordova. Defendant explained he had the gun because Tony was going to sell it to him and it was in his car because he did not have a place to live.
Defendant had suffered prior felony and misdemeanor convictions, making it a felony for him to possess a firearm.
Defendant was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2); further undesignated statutory references are to the Penal Code), discharging a firearm in a grossly negligent manner that could cause injury or death (§ 246.3), unlawful possession of a firearm (§ 12021, subd. (c)(1)) and unlawfully carrying a loaded firearm in a public place. (§ 12031, subd. (a)(2)(F).) With respect to the assault charge it was further alleged that defendant had personally used a firearm, making it a serious felony. (§§ 1203.06, 12022.5, subd. (a).)
Following a jury trial, defendant was convicted of unlawful possession of a firearm. He was acquitted of carrying a loaded firearm in a public place. The jury deadlocked on the other two counts and, as to those, the trial court declared a mistrial. Defendant was subsequently retried and convicted on those two counts. This appeal concerns only defendant’s conviction for unlawful possession of a firearm. Defendant’s appeal of his other two convictions is pending before this court in case No. C056191.
Imposition of sentence was suspended and five years’ formal probation was granted.
Discussion
The Court’s Instructions on Self-Defense
Defendant raised a claim of self-defense/defense of others. In furtherance of that claim, he argued that based on Bustillos’s having been previously “roughed up” by Moreno, he reasonably believed she was in imminent danger of suffering significant or substantial physical injury. He argued there was no planning or preparation for the assault, rather defendant’s appearance at Bustillos’s apartment was a sequence of events, not preplanned.
Based on defendant’s assertion of a self-defense/defense of others claim, the court instructed the jury on the issue of self-defense, with Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 2514, which states, in pertinent part: “The defendant is not guilty of unlawful possession of a firearm, as charged in Count 3, if he temporarily possessed the firearm in self-defense or defense of another. The defendant possessed the firearm in lawful self-defense or defense of another if:
One, the defendant reasonably believed that he or Eddy Bustillos was in imminent danger of suffering significant or substantial physical injury;
Two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
Three, a firearm became available to the defendant without planning or preparation on his part;
Four, the defendant possessed the firearm temporarily, that is, for a period no longer than was necessary or reasonably appeared to have been necessary for self-defense;
Five, no other means of avoiding the danger of injury was available;
And, six, the defendant’s use of the firearm was reasonable under the circumstances.”
During deliberations, the jury requested “clarification to an item on jury instructions. Page 28 [CALCRIM 2514], item #3. Does ‘without planning’ mean with regards to this situation or just in general.”
The court requested clarification of this inquiry and the jury responded: “In the statement ‘A firearm became available to the defendant without planning or preparation on his part,’ does ‘without planning or preparation’ mean for the situation of alleged shooting or in general.”
Over defendant’s objection, the court responded to the jury that “Element number 3 of jury instruction number 2514 (page 28) concerns how the firearm became available to the defendant. Stated another way, this element concerns how the defendant came into possession of the firearm. Was it without planning or preparation on his part?”
Defendant’s sole contention on appeal is that the court prejudicially erred in instructing the jury in response to the jury’s question as to element three of the charge. That is, whether the rifle became available to defendant without his planning. Defendant’s argument relies on a distinction between the instruction on whether the gun became “available” to defendant without planning versus the whether the gun came into defendant’s “possession” without planning. Defendant argues this was error because these are “entirely different issues” and that such an error was prejudicial because the gun became “available to [defendant] without planning (i.e. it was in his trunk), but that [defendant] had obtained possession of the firearm with planning (i.e., he walked to his car, and popped the trunk in order to retrieve it).” This argument suggests a fundamental misunderstanding of the law of possession and the defense asserted in this case.
The language in the instruction at issue here comes from People v. King (1978) 22 Cal.3d 12, 24, in which the California Supreme Court held when a felon was “in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021.”
The factual context of the holding in King provides valuable insight on what the court meant by “without preconceived design” a gun is “made available” to the defendant. William King and some friends went to another friend’s apartment for her birthday party. (Id. at p. 16.) Shortly after they arrived, a fight broke out between some uninvited men and the partygoers. (Id. at pp. 16-17.) The altercation got progressively more violent, as ultimately 10 male party crashers were trying to break into the apartment by breaking down the front door and throwing things through windows. In the apartment were five women, one man in a wheelchair and defendant. One of the women retrieved a .25 caliber automatic pistol from her purse and handed it to King. He took the gun, stepped outside and fired three shots in the air, to frighten the party crashers. Ultimately, the intruders did leave. There was no evidence defendant had the gun in his possession prior to the specifically described period when it was handed to him or after the time when the threat had dispersed. (Id. at pp. 17-20.)
Ultimately, we need not decide whether in defendant’s somewhat metaphysical argument that the court somehow erred in referring to a firearm having been made available to defendant as opposed to his possessing it. Even if the trial court’s answer to the jury’s question was legally erroneous, and we do not decide that it was, the error was, without question, harmless. We may assume for the purpose of resolving this appeal that we must find the argued error harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
In the first place, the defendant admitted that he had been carrying the weapon in the trunk of his car in anticipation of buying it from a friend. He obviously planned to make it available to himself generally by keeping it in the trunk of his car.
As the jury was properly instructed, defendant did 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.” “The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation].” (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) Defendant was in possession of the gun by virtue of it being in the trunk of his car with his knowledge. (See People v. Nieto (1966) 247 Cal.App.2d 364, 368.)
Second, after firing shots into the air, defendant put the gun back in the trunk of his car and left. The defense that he tendered required the evidence to show that, however he came into possession of the weapon, he possessed it only temporarily, that is, for a period that was no longer than that necessary or reasonably appeared to have been necessary for self-defense.
By the time he returned to the car and drove away, still possessing the weapon in the trunk, its possession was no longer necessary for self-defense. We are convinced beyond a reasonable doubt that no rational jury would have found otherwise.
Disposition
The judgment is affirmed.
We concur: DAVIS, Acting P.J., NICHOLSON, J.