Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA085815, Allen J. Webster, Jr., Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Marco Bravo was convicted, following a jury trial, of one count of carrying a loaded firearm in violation of Penal Code section 12031, subdivision (a)(1). The jury acquitted appellant of the charges that he possessed methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) and possessed methamphetamine with a firearm in violation of Health and Safety Code section 11370.1, subdivision (a). The jury found true the allegation that appellant had suffered a prior conviction within the meaning of section 12031, subdivision (a)(2)(A). The trial court sentenced appellant to probation for a period of three years, on the condition that he serve 60 days in county jail.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant appeals from the judgment of conviction, contending that the trial court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 2540 concerning his prior conviction and failing to provide a limiting instruction for the conviction. Appellant further contends that the trial court erred in characterizing his prior conviction as being punishable as a felony within the meaning of section 12031, subdivision (a)(2)(A) rather than requiring a jury finding on the issue. At our request, the parties briefed the issue of the applicability of the state court construction penalty to appellant's restitution fine. We affirm the judgment of conviction.
Facts
About 3:00 a.m. on March 30, 2006, Los Angeles County Deputy Sheriff Rafael Cardenas initiated a traffic stop of a blue Ford Mustang which was being driven without any license plates. Appellant was in the driver's seat and Jose Reyes was in the front passenger seat. Deputy Cardenas saw a plastic baggie containing a white substance resembling cocaine in the cup holder area of the car between the two front seats.
Deputy Cardenas asked Reyes whether he had anything illegal in his possession. Reyes replied that he had some cocaine in his pocket. The deputy searched the pocket and found a baggie containing a white substance that was later determined to be cocaine.
According to Deputy Cardenas, appellant stated that the drugs in the baggie in the cup holder were his. Appellant also admitted that he had a handgun in the trunk of the vehicle for personal protection. Appellant stated that he was a musician who worked late at night. Deputy Cardenas searched the trunk of the car and discovered a loaded .45 caliber handgun inside a zipped cloth bag. The gun was later determined to be registered to appellant. The deputy also found a trumpet in the trunk. Appellant claimed that the car belonged to him, but was not registered to him.
Appellant and Reyes waived their Miranda rights and provided written statements. Appellant wrote that the cocaine in the cup holder area was his and that he had a handgun in the trunk of the vehicle. When the substance in the cup holder was tested later, it proved to be methamphetamine. Reyes wrote that he had cocaine when stopped by Deputy Cardenas.
At trial, Reyes testified as a witness for the defense. He stated that the methamphetamine in the cup holder was his. Reyes testified that he told the deputy that the drugs were his, but the deputy told him to keep quiet, that it was appellant's car and the drugs belonged to appellant. Reyes acknowledged that the handgun in the car's trunk belonged to appellant.
Discussion
1. CALCRIM No. 2540
Appellant contends that the trial court erred in instructing the jury with CALCRIM No. 2540 concerning his prior conviction and further erred in modifying that instruction, and that these errors require reversal. We agree with appellant that CALCRIM No. 2540 was not necessary under the circumstances of this case, and that the trial court erred in removing limiting language from that instruction. We do not agree that these errors require reversal.
As we discuss in more detail in section 2 below, a prior conviction within the meaning of section 12031, subdivision (a)(2)(A) is a sentencing factor which makes a current violation of section 12031 a felony. Generally, a criminal defendant can stipulate to the truth of such a conviction and thereby preclude the jury from learning about the prior. (See People v. Hall (1998) 67 Cal.App.4th 128, 134-135 [prior conviction as sentencing factor under section 12025].)
Appellant stipulated that he "was convicted of a violation of Penal Code section 12031(a)(1), a misdemeanor, possession of a loaded firearm, Compton Court Case No. 1CM04412." CALCRIM No. 2540, as given in this case, instructed the jury to find whether appellant had been convicted of "A violation of P.C. 12031(A)(1) on 7-3-01 in the Compton Court, in Case Number 01CM04412." The only difference between appellant's stipulation and the instruction is that appellant's stipulation includes the fact that his conviction was a misdemeanor. The instruction simply omits the degree of the crime. Thus, CALCRIM No. 2540 asked the jury to determine only what appellant had already admitted. It was superfluous and should not have been given.
The court and the prosecutor agreed that appellant's crime was punished as a misdemeanor.
Appellant contends that he was prejudiced by this instruction because the jury learned not only that he had a prior conviction, but that this prior conviction, like the charged offense, involved illegal possession of a firearm. He claims that the trial court caused further prejudice by removing the portion of CALCRIM No. 2540 which tells the jury: "Do not consider this evidence for any other purpose."
Respondent points out that a trial court does not have a sua sponte duty to give a limiting instruction on a prior conviction. (People v. Griggs (2003) 110 Cal.App.4th 1137, 1139.) Here, however, the trial court removed limiting language from a standard instruction. We can see no reason for the trial court to have done so.
The trial court used a printed form for CALCRIM No. 2540, and blacked out the sentence in question.
We see no reasonable probability that appellant would have received a more favorable outcome in the absence of the errors, however. Some limiting language did remain in the instruction. CALCRIM No. 2540, as given, told the jury: "Consider the evidence presented on this allegation only when deciding whether the defendant was previously convicted of the crimes alleged." The evidence against appellant was strong. The gun was registered to him and was found in the trunk of a car belonging to and driven by him. Deputy Cardenas testified that, at the time of the stop, appellant stated that he had a gun in the trunk of his car which he kept for personal protection, because he worked late at night as a musician. Reyes testified that the gun found in the trunk belonged to appellant.
We do not agree with appellant that prejudice is shown by the fact that the jury acquitted him of the drug charges but convicted him of the handgun charge. Although appellant had previously provided a written statement acknowledging that the drugs in the cup holder were his, he described the drugs as cocaine. Tests showed that the substance in the cup holder was in fact methamphetamine. Further, Reyes, who was in a drug rehabilitation program at the time of appellant's trial, testified that the methamphetamine was his. This is more than sufficient to raise a reasonable doubt about appellant's guilt of the drug charge. No such evidence exists in connection with the gun charge. The evidence that the gun was appellant's and that he was aware of its presence in the trunk of his car was uncontradicted. Thus, the differing verdicts do not show prejudice.
To the extent that appellant contends that the court's errors must be evaluated under the standard for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, we do not agree. Appellant has not cited any cases holding that it is federal constitutional error to require the jury to make findings involving sentencing factors as part of their guilt determination. We would, however, find the errors harmless under that standard as well if it were applicable.
2. Prior conviction
Appellant contends that the trial court erred in finding as a matter of law that his prior misdemeanor conviction for carrying a loaded weapon was a conviction within the meaning of subdivision (a)(2)(A), and so was punishable as a felony. He contends that a prior section 12031 conviction only triggers the punishment provisions of subdivision (a)(2)(A) if that prior conviction was punishable as a felony, and that the issue of whether his prior conviction was punishable as a felony was an issue for the jury to decide. We see no jury issue here.
Section 12031, subdivision (a)(1) describes the offense of carrying a loaded firearm. Section 12031, subdivision (a)(2) states: "Carrying a loaded firearm in violation of this section is punishable, as follows: [¶] (A) Where the person previously has been convicted of any felony, or of any crime made punishable by this chapter, as a felony."
Appellant's reading would require us to disregard the comma following "chapter." It would also leave us with no description of what the punishment is if a defendant falls under subdivision (a)(2)(A). Under appellant's reading, the subdivision would simply state that the offense is punishable when the defendant has certain specified prior convictions.
The stated purpose of subdivision (a)(2) is to describe punishment for a current conviction of section 12031. The plain meaning of the phrase "as a felony" in subdivision (a)(2)(A) is a description of the punishment for the current conviction. The subdivisions which follow (a)(2)(A) make this even clearer. Subdivision (a)(2)(B) states "Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony." (Italics added.) Subdivision (a)(2)(E) provides "Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment in the state prison, or by imprisonment in a county jail . . . ." (Italics added.)
Subdivision (a)(2)(A) provides for felony punishment when a defendant has any type of prior felony conviction or any type of prior conviction under section 12031. The jury found that appellant had a prior conviction under section 12031. Nothing more was required.
3. Fines
In July 2007, we asked the parties to discuss the effect of our opinion in People v. Chavez (2007) 149 Cal.App.4th 1340 on the restitution fine imposed in this case. Chavez considers the effects of section 1465.7 and Government Code section 70372 on fines imposed in criminal cases. On August 15, 2007, the California Supreme Court granted review in Chavez, S153920. On October 5, 2007, the Governor approved Senate Bill No. 425 which was enacted to clarify that the state construction penalty is not to be imposed on restitution fines. Section 22 of that bill states that it was enacted in part to "construe and clarify the meaning and effect of the existing law and to reject the interpretation given to the law in People v. Chavez (2007) 150 Cal.App.4th 1288."
Senate Bill No. 425 operates retroactively. (People v. McCoy (2007) 156 Cal.App.4th 1246 [68 Cal.Rptr.3d at p. 141]; People v. Estrada (1965) 63 Cal.3d 740, 748.) Further, a defendant generally is entitled to benefit from statutory amendments that become effective during his appeal. (People v. Vieira (2005) 35 Cal.4th 264, 305.) Accordingly, we conclude that Government Code section 70372 has no application to appellant's restitution fine. The abstract of judgment, which does not reflect a construction penalty, is correct.
In our modification to Chavez, we held that the section 1465.7, subdivision (a) surcharge did not apply to restitution fines or parole revocation fines.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.