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People v. Brock

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Dec 27, 2011
F061389 (Cal. Ct. App. Dec. 27, 2011)

Opinion

F061389 Super. Ct. No. BF125612B

12-27-2011

THE PEOPLE, Plaintiff and Respondent, v. DONALD JOHN BROCK, Defendant and Appellant.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Arthur Wallace, Judge. (Retired Judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

William I. Park, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Donald John Brock was convicted of various drug and weapon charges arising from a search of his house. On appeal, he contends (1) the trial court abused its discretion by admitting evidence of uncharged methamphetamine manufacturing, (2) the trial court erred in failing to stay the term on one conviction for being a felon in possession of a firearm, and (3) the trial court failed to exercise its sentencing discretion when it imposed a personal arming enhancement. We will affirm.

PROCEDURAL SUMMARY

On February 5, 2009, the Kern County District Attorney charged defendant with manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a); count 1), possessing marijuana for sale (Health & Saf. Code, § 11359; count 2), possessing methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a); count 3), possessing methamphetamine for sale (Health & Saf. Code, § 11378; count 4), possessing ammunition (Pen. Code, § 12316, subd. (b)(1); count 6), possessing a cane sword (§ 12020, subd. (a); count 7), and three counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1); counts 5, 8, 9). As to count 4, the information also alleged that defendant was personally armed when he possessed methamphetamine for sale (§ 12022, subd. (c)), and that he had suffered a prior conviction pursuant to Health and Safety Code section 11370.2, subdivision (b).

All statutory references are to the Penal Code unless otherwise noted.

Before the jury was empanelled, the trial court granted the district attorney's motion to dismiss count 1.

Throughout trial, the counts appear to have been referred to by their original numbers (counts 2 through 9), except on the verdict forms where they were renumbered as counts 1 through 8. We refer to them as counts 2 through 9.

The jury found defendant guilty on all counts and found the personal arming allegation true. Defendant admitted the prior conviction allegation.

The trial court sentenced defendant to 12 years 8 months in prison, as follows: three years on count 4, plus four years on the personal arming enhancement and three years on the prior conviction enhancement; eight months on count 2, to be served consecutively; four years on count 3, stayed pursuant to section 654; three years on count 5, stayed pursuant to section 654; three years on count 6, stayed pursuant to section 654; eight months on count 7, to be served consecutively; eight months on count 8, to be served consecutively; and eight months on count 9, to be served consecutively.

FACTS

At approximately 6:00 p.m. on November 12, 2008, about 15 officers executed a search warrant at defendant's house as part of a narcotics raid. When the officers arrived, several people, including defendant, were outside trying to move an Oldsmobile from the back yard to the side of the house and onto a trailer. A motor home was parked behind the Oldsmobile. The people had been going in and out of the house through an open door in the back, and they were standing around the Oldsmobile when the officers arrived. Defendant's girlfriend, Caroline, came out of the motor home.

All references to November 12 are to 2008.

Officers detained everyone and sat them on the curb. Officer McIrvin, the lead investigator on the case, spoke to defendant on the street. Defendant told him he did not live at the house. When McIrvin asked defendant if he was going to find any mail with defendant's name and address inside the house, defendant told him he "shouldn't" find any.

The officers decided to enter the house through the front door. After knocking twice, they rammed open the locked door and announced themselves. The house appeared to be lived in. It was furnished and the lights were on. There was no distinctive chemical odor inside. The first thing officers saw was a 39-millimeter rifle leaning against a wall by the door in the living room. It was loaded and had a magazine of cartridges taped to it. A second rifle in a case was found in the living room. The officers heard someone getting out of the shower in the bathroom connected to a bedroom. Mark Martinez had heard the officers announce themselves and he was still wet when he emerged. McIrvin ordered him into the living room. Mark told the officers that his items were in a black duffle bag near the front door in the living room. The bag contained some toiletries and men's clothing. The officers detained Mark.

Because 39 millimeters is over 1.5 inches (and because we have seen photographs of this rifle and various ammunition found at the scene), we assume that the designation "39-millimeter rifle," used both in testimony and on the verdict form, referred to the cartridge case length, rather than the bullet diameter. But for consistency, we also use this shorthand designation to refer to this rifle.

After the house was cleared, McIrvin spoke to defendant a second time. He read defendant his Miranda rights and defendant agreed to speak with him. McIrvin told defendant the officers were there because they believed he possessed or was selling methamphetamine. He said he did not possess methamphetamine. McIrvin told him they found a loaded rifle when they walked in the front door. Defendant said it was not his; an unknown person had brought it to his house and just left it there. McIrvin returned defendant to the other detainees, who were now in the living room, because he thought defendant might be too nervous to be interviewed.

Miranda v. Arizona (1966) 384 U.S. 436.

Meanwhile, officers continued searching the house. They found the northwest bedroom in disarray, with random pieces of furniture and a lot of clothes and trash. It was not set up as an organized bedroom and it looked like no one lived in it.

The southwest bedroom, however, was organized and furnished with bedroom furniture. "DON + CAROLINE" was spray painted on the wall. This room was a lot cleaner and appeared to be livable. The bed was made up with sheets and pillows, and a television was on the dresser, along with DVD's and CD's. Various items and men's clothing were in drawers and hanging in the closet. The dresser contained a California driver's license with defendant's name on it, and at least one legal document bearing his name and the address of his house. Officers also found pay-owe sheets, two digital scales (typically used to measure drugs for repackaging and sales), a syringe containing a liquid, a 12-gauge shotgun loaded with five shells, and thirty-three .22-caliber bullets inside a jacket in the closet. A red and black backpack in the closet contained a plastic baggie holding about 203 grams of methamphetamine (worth $8,000 to $10,000) and a plastic baggie of marijuana. On another shelf in the closet was a box with a handwritten label, "DON'S PAPER WORK." The box contained several bottles of M.S.M tablets.

Sergeant Bonsness said he saw the card, but admitted it might have been a California identification card because it would have looked the same.

We assume M.S.M. refers to methylsulfonylmethane.

Directly south of the southwest bedroom was a laundry closet that contained a cane sword and a sawed-off shotgun barrel.

In the kitchen, food was on the table, and there were pots and pans and dirty dishes. Officers found three boxes of clear plastic sandwich baggies. Inside a bench next to the table, officers found a loaded .22-caliber revolver and various types of ammunition. Live .22-caliber ammunition was on the table, and other ammunition was found in a food container.

Outside, officers searched the Oldsmobile and a black sport utility vehicle (SUV). The trunk of the Oldsmobile contained a stack of methamphetamine recipes and a box containing laboratory glassware, including a triple-neck, round-bottom flask, typically used to manufacture methamphetamine. Suspecting the presence of hazardous materials, the officers waited for special investigators to continue searching the Oldsmobile.

The SUV contained a backpack with three plastic bags holding large amounts of marijuana—180 grams, 340 grams, and 350 grams. Another backpack contained a scale, a pay-owe sheet, seven vials of concentrated cannabis (a marijuana derivative), a large jar of liquid and concentrated cannabis, and four baggies of marijuana containing 90 grams, 234 grams, 234 grams, and 280 grams. A third backpack held a scale and baggies of marijuana containing 171 grams, 205 grams, and 251.5 grams. The SUV also contained empty baggies of various sizes.

An hour or two after the officers arrived at the house, Woody, the owner of the house, arrived.

McIrvin spoke to defendant a third time, approximately two hours after the entry into the house. Sergeant Bonsness was present during this interview. Defendant seemed much calmer and said he wanted to cooperate. McIrvin was now aware of the items that had been found in the search, although defendant was not, and McIrvin asked defendant to explain the exact location of the items they would find in the house. Defendant said they would find a large amount of methamphetamine and marijuana in a backpack inside his bedroom closet. They asked him about the marijuana in the SUV and he admitted it was his. He said he started buying the marijuana in small quantities, but the quality was good and he continued to buy more and more of it. McIrvin also asked about the items found in the Oldsmobile, characterizing them as a possible meth lab. Defendant said he did not know what McIrvin was talking about and he had never cooked methamphetamine. Defendant said if they looked at the items, they would see they were clean and had never been used. He said someone brought the items to his house about a month earlier, but he would not provide a name. When McIrvin asked about the firearms, defendant admitted obtaining them. He said he got them for protection after he was robbed. When asked if he knew it was illegal for a felon to possess firearms, he became quiet and nodded his head affirmatively.

The second and third times McIrvin spoke to defendant, defendant said he had lived in the house for nine months, but was in the process of moving out. He said he had to be out of the house by 7:00 the next morning, and he was there to move his belongings. He said a trailer had already been moved off the property, but he did not discuss what was in the trailer. Someone told McIrvin that defendant was moving the Oldsmobile off the property that night.

McIrvin determined that neither the Oldsmobile nor the SUV belonged to defendant. The SUV belonged to defendant's girlfriend, Caroline, or her parents.

McIrvin did not attempt to lift fingerprints from the evidence because defendant had described all the items and stated that everything was his. He had confessed.

Based on his training and experience, McIrvin believed defendant possessed the methamphetamine for sale. He possessed a large amount of methamphetamine, worth between $18,000 and $20,000, and also scales, pay-owe sheets, and packaging materials. The pay-owe sheets reflected sales from $300 to thousands of dollars. Although only $69 was found on defendant's person, large amounts of cash are not always present in every case.

Based on his training and experience, McIrvin also believed defendant possessed the marijuana for sale. He possessed almost five and one-half pounds of marijuana, worth about $16,000, and also concentrated cannabis (worth $40 or $50 per gram, with multiple grams per ounce), scales, and packaging materials.

McIrvin determined that the four firearms were operable. All of them were loaded and accessible in the house, and one was right by the front door.

On cross-examination, McIrvin conceded a driver's license was not booked into evidence and he had never seen one. He was told one was found, but he admitted it was not seized as evidence.

Officer Feola, who investigated methamphetamine laboratories, arrived at about 9:00 or 9:30 p.m. He spoke to defendant, who had already been read his Miranda rights. Feola asked defendant whether the items in the Oldsmobile were hazardous. Defendant said he knew about the items, but did not know exactly what was there. He said he had been given the items from an unknown person because he had expressed an interest in making methamphetamine, although he had never done so.

At that point, Feola and another officer put on chemical protective suits, set up a safety perimeter and an evidence area, and began removing items from the Oldsmobile.In the trunk, they found various laboratory glassware (including a triple-neck flask, other flasks, and glass tubes with stoppers), syringes, bottles of liquid, a box containing a brown powder, and a stack of computer printouts of various recipes for making methamphetamine. Most of the glassware was laboratory grade equipment that could be obtained only through a dealer. The stoppers and tubing attached to the glass items were charred and had a red, off-black staining on them. Based on Feola's training and experience, he concluded the items found in the trunk were consistent with a methamphetamine lab. The glassware, stoppers, and tubing were later found to contain no precursors or byproducts of any controlled substances. The items either had never been used or had been cleaned. The brown powder, however, contained heroin and a liquid contained the active ingredient of marijuana.

At trial, jurors were shown photographs of Feola and a detective engaging in this investigation.

In the back yard, the officers found trash in a can and in a pile. They found empty blister packs of Sudafed, which contains ephedrine, a precursor to methamphetamine. They also found an empty box of muriatic pool acid, a component in every method of methamphetamine production. (There was no pool on the property.) In addition, the trash contained numerous bottles of iodine and isopropyl alcohol, both of which are used in certain methods of methamphetamine production.

On cross-examination, Feola testified that he did not know who owned the Oldsmobile or the house. There was no physical evidence that defendant had touched or controlled the items in the Oldsmobile.

Defense Evidence

Neighbor Richard Amaya

Richard Amaya lived next door to defendant and saw him occasionally. The last time Richard saw defendant was a few days before November 12. Richard was in his front yard when he saw defendant arrive in his black car and go into his house. Within 10 minutes, defendant came storming out the back door with two men yelling at him. He climbed a fence, but a board gave way and he fell to the ground. He got up and came into Richard's front yard. Woody, the owner of defendant's house, drove up and asked what was happening. Woody and defendant talked.

Defendant

Defendant, who was 58 years old at the time of trial, testified on his own behalf. He explained that Woody had owned the house for 14 years, but then lost it to foreclosure. When defendant lived there, it was with Woody's permission. Defendant stayed in the southwest bedroom. He moved out of the house about three weeks before November 12. Three men had aggressively attacked him and he got hurt falling over the fence and reinjuring an old injury to his ribs. He fled, leaving everything behind. As he approached Richard's yard, Woody came by and spoke with him.

Some of defendant's friends—Mark, Lewis, and Leonard—moved his things because he was injured. They packed up his trailer with all his belongings and moved it to his new address at Lewis's father's property. After defendant moved out of his house, the locks were changed and he had no access to the house.

On November 12, defendant was at the house to help Caroline move her motor home out of the back yard. He was checking the battery because the motor home had been parked there for several months. The motor home could not be moved out of the back yard because the Oldsmobile was in the side driveway, blocking the gate completely. The Oldsmobile had been placed there after defendant moved out. The SUV was owned by Robert Archer. The next morning at 6:00 a.m., sheriffs were coming to lock the house up.

When defendant was near the motor home, George Lara came through the side gate and told him an officer was there and wanted to know who owned the black car. Defendant walked out and asked the officer what he could do for him. The officer immediately handcuffed him and told him he was under arrest. Defendant asked, "For what?" and the officer responded, "Don't worry about it. You'll find out in a little bit." When the officer told him they were serving a search warrant on the house, defendant said he did not live there. The officer said, "I know you live here," and defendant said, "No, I don't." The officer asked if he would find any mail with defendant's name and address on it. Defendant told him, "No, you shouldn't be shocked." He did not know for sure because his friends had moved his possessions. The officer said, "Yeah, I know you live here, because I believe that you're selling narcotics out of the house[.]" Defendant said, "What [are] you talking about? Selling what drugs?" The officer responded, "Methamphetamine and marijuana." Defendant said he did not have any of those drugs. The officers detained everyone who was outside.

The officers emptied defendant's pockets, looked at his keys, and said the keys did not look like they fit the door of the house. Defendant told them they did not fit because the locks had been changed. Consequently, the officers used the battering ram to enter the house. Defendant told McIrvin and Bonsness that all of his possessions were at his new address. When the officers tried to get him to implicate himself, he said, "No, I don't know what you are talking about. I really don't. I haven't been here. I don't live here anymore. [W]hat's gone on the last three weeks isn't my business. I challenge you to go into my [new address] with ... all my property. It will prove my innocence."

At some point, the detainees were moved into the living room, where defendant saw Mark for the first time that evening. After the six detainees had been handcuffed for about five hours in the living room, McIrvin and Bonsness started threatening defendant that if he "didn't man up, cop to everything that was [his]," they would "put so many charges on [him that he] would never see the street again, and they would put a bail so heavy and put a [flag] on [him for] carrying multiple firearms, and every time a cop pulled [him] over they would arrest [him]." They said he was going to jail anyway and everyone would go to jail if he did not "man up" and "cop to being the owner of all the stuff ...." By this time, the detainees were extremely uncomfortable. They were cold, their handcuffs were too tight, and they were not allowed to use the restroom despite repeated requests.

Bonsness went outside to speak to Woody's stepson, David, who was sitting in a vehicle on the street. When Bonsness returned, he asked defendant where the money was. Defendant asked, "What money?" He had only $69 on his person. He said he did not have any money. Bonsness said, "If you give me $10,000, I'll take it easy on you. If you don't, I'm going to drum up everything on you, and you'll never see the street again." When defendant said he did not have $10,000, Bonsness said, "Yeah, you do." Defendant told him he had the wrong guy. Bonsness went back outside to talk to David, then returned and asked defendant where the weapons were. Defendant said he did not know about them. Bonsness was getting irritated and abusive because defendant was not able to provide the information he wanted. Bonsness's demeanor was entirely different than his demeanor at trial. He went outside again to talk to David, returned, and asked defendant where the finished product was. Again, defendant told Bonsness he did not know what he was talking about. Defendant knew nothing about any drugs or any manufacturing items that were in the Oldsmobile.

Bonsness asked defendant about papers in the Oldsmobile that had Mark's name on them, papers which were not produced at trial. When Bonsness asked defendant about Mark, defendant said "he was an idiot and delusional and went around trying to start doing all this stuff and never would finish."

Defendant never told the officers he knew the methamphetamine was in a black and red backpack. That backpack did not belong to him and he did not know whose it was. Bonsness repeatedly told defendant he should "man up," until defendant finally told him, "Just write down whatever you want to do, because that's what you are go[ing] to do anyway, because I don't know what you are talking about." He continued, "You know, what's it matter? What about—what about this conversation? You're going to write it down. What's the point?" Defendant was tired and upset. He kept saying he had nothing to do with anything and Bonsness kept trying to get him to say something that was not true. Defendant said he was not going to do it. He called Bonsness an asshole because he was so abusive and aggressive. After this discussion, which occurred in the presence of McIrvin, the group was detained another two or three hours before defendant was taken to jail. Defendant estimated his total detention in handcuffs at the house was about nine hours, during which time he was not allowed to use the restroom.

At trial, defendant denied running a drug operation in the house "on that particular morning, afternoon, or evening." He was not selling methamphetamine or marijuana from his property. His fingerprints could have been on any of the paraphernalia found. He had given his friend, Lewis, the authority to handle his affairs, and defendant had no way of knowing what had happened at the house during the three weeks after he moved out. He had not entered the house since he had been attacked by the three men. He did not put weapons in the house and he did not know who owned the cane sword. His driver's license could not have been found in the house because he had not had a license for four years. He had a California identification card, but he did not leave that behind. It was currently in his wallet and had not been renewed recently.

Defendant admitted he had been convicted of a felony of moral turpitude on May 16, 1986.

On cross-examination, defendant explained that one of the men who attacked him in his back yard was Woody's stepson, David. After defendant fell from the fence, he saw Richard and went to him for help. Defendant was afraid. Richard called 911 to report a disturbance because defendant's cell phone and keys were still in his back yard. Defendant did not wait for the police to arrive because he was injured and in pain. He did not return to the house because he felt his life was threatened, although he felt it was okay to return three weeks later to move the motor home.

Defendant testified that the Oldsmobile was owned by Mark's friend, Mario. Mario received it from his father who had died. Defendant did not see Mario at the house on November 12, and he did not know Mario's last name. Defendant was not moving the Oldsmobile that night; it was Mark's car. Lewis, Leonard, George, and Larry were moving it for Mark. At first, Mark could not find the keys, so they were moving it onto a trailer. Then Mark came out and said he had found the keys.

The SUV had once been owned by Caroline, but Robert Archer assumed ownership when it was impounded. It was towed into the back yard of the house after defendant had already moved out.

Defendant's belongings were completely removed from the house four days before November 12. That was when Lewis notified defendant that the locks had been changed. Defendant believed that Woody gave Mark physical possession of the house. Woody and Mark had known each other for more than nine years and were friends.

On November 12, when the officers asked defendant where his personal weapon was, he said he did not know what they were talking about because he had not possessed a weapon in a long time. Then they asked him about the items in the SUV. He said it was not his vehicle, he had no access to it, and he did not know what was in it.

On redirect, defendant explained that Woody had gone into foreclosure. Thus, defendant had stopped paying Woody rent for two months because Woody had no right to the rent money. Woody's stepson, David, and the other two men came to evict defendant from the property and take back physical possession of the house. At that time, defendant left promptly.

The officers told defendant that if he did not "play ball" with them, they would make life miserable for him. In fact, defendant was booked into jail on 131 felony charges. He originally faced 114 years in prison and $1 million bail.

Steven Ledioux

Steven Ledioux testified that he towed a big white trailer from defendant's house to Lewis's house about a week or two before November 12. Although Steven did not pack the trailer or go into defendant's house, he had been in the house about two weeks before that and had seen no weapons. He believed defendant was living at Lewis's address at the time he towed the trailer. Steven had visited defendant unannounced at Lewis's address six or eight times. Defendant occupied a room and had his personal property there. He complained of pain in his ribs. Steven did not visit defendant at his house after defendant moved to Lewis's address. Steven believed a man named Mark lived in defendant's house after defendant moved out. Steven was not present at the house on November 12.

On cross-examination, Steven explained that defendant and Mark lived together at one time, but Steve did not know which bedrooms they occupied. Steven had been to defendant's house 20 or 30 times, but he never went into the bedrooms. Steven never bought any drugs from defendant while he lived in the house. At Lewis's address, defendant lived in a separate structure that was furnished and had its own kitchen and bathroom. When Steven towed the trailer, he parked it in the back of Lewis's property by the fence.

On redirect, Steven testified that he would see Mark at defendant's house when he visited defendant. But he never saw any weapons.

George Lara

George helped move defendant out of his house two or three weeks before November 12. Defendant asked George to help him because he had injured his ribs and could hardly move. George loaded the trailer with all of defendant's personal possessions. When George was packing defendant's things, he knew there were no weapons around him. He was an ex-felon and was very careful not to be around weapons. He did not believe there were any drugs either, but he did not look through everything. George moved the trailer to Lewis's address. George was living at Lewis's address, so he was aware that defendant was living there. When defendant first moved to Lewis's address, he slept in a motor home on the property.

George explained that Mark always talked about having no place to stay. He was kind of a floater. Mark told George that defendant let him stay at his house for a while. Mark was the type of person who got into anything and everything.

George worked for Lewis's father. On November 12, when George was at work, he got a call from Lewis, asking him to pick up a truck and come to defendant's house to help move some cars and get a motor home. When George got off work, he went to Lewis's house, got Lewis's father's truck, and took it to defendant's house. George thought defendant had already moved out and just needed to move some vehicles off the property. Defendant did not own the Oldsmobile; he owned the black Thunderbird parked on the street. When George arrived, the Oldsmobile was stuck in the mud. It was locked and no one had the keys. He and the others tried unsuccessfully to move it.

When George went to get the truck, he noticed an officer had arrived. The officer told him he wanted to talk to the person who owned the black Thunderbird parked there. George found defendant and told him an officer wanted to speak to him. When defendant went to the officer, the officer threw him on the ground and told him he was under arrest. The officer radioed someone and a van arrived with more officers. They jumped out and ordered everyone to the ground. The detainees sat on the curb for a long time while the officers talked to various people. Eventually, the detainees were brought into the house.

The officers finally took defendant to jail at 2:30 a.m. George walked home and arrived at 2:45 a.m.

On cross-examination, George explained that defendant's bedroom was the one closer to the back yard, although George had never been in it. Defendant told him the two bedrooms were connected to the same bathroom.

When George packed up defendant's things, he loaded household items, a lot of furniture, and various other things. When he was done loading, there was still a sofa and table in the living room.

During the time that George was packing defendant's possessions, defendant was not staying at Lewis's address. George did not know where he was staying. Defendant did come to stay at Lewis's address after he got out of jail.

On November 12, George had been at defendant's house for about an hour before the police arrived. Defendant arrived after he did. George told the officers he was there to move the two vehicles that were blocking the motor home.

Kelly Williford

Kelly Williford knew defendant when he lived in his house. Mark, who was basically a transient, lived at the house sporadically. Kelly visited the house often and never saw weapons. Defendant drove a black Thunderbird while he was living at the house. He complained of a rib injury before November 12.

Kelly visited defendant at Lewis's address, which was owned by Lewis's parents. Defendant's bed and clothes were there. Kelly's sister was Lewis's girlfriend.

On cross-examination, Kelly said she was defendant's friend. Defendant's bedroom in his house was the one closer to the back yard. The two bedrooms were connected by a bathroom. Kelly did not assist in moving defendant's possessions. At Lewis's address, defendant stayed in a trailer for a while.

Rebuttal Evidence

Sergeant Bonsness

Bonsness testified that he did not threaten defendant on November 12. He did not tell him he would flag his record and officers would beat him up because they knew he had weapons. He never said he would go easy on defendant if he gave him $1,000 or $10,000.

On cross-examination, Bonsness testified that sometimes officers use deceit to get information.

On redirect, Bonsness said he did not use deceit in this case to try to elicit a statement from defendant. Officers searched defendant's house thoroughly and Bonsness thought they would have found cash if it had been there.

The prosecutor offered a certified DMV registration of the SUV, showing it was registered to Caroline.

Surrebuttal Evidence

George Lara

George testified that he was present while Bonsness interviewed defendant. George heard Bonsness mention money to defendant three times. Bonsness said to defendant, "You give me $10,000, and we'll go easy on you." When that did not work, Bonsness asked defendant about the weapons. Defendant said, "I don't know what you are talking about," and Bonsness answered, "Come on, man up to these things, because all you guys are going to go to jail, no matter how much you man up on this, we'll decide who goes home." George remembered it exactly. He was sitting right there, handcuffed, and thinking, "How can these people do this to somebody, come at them like that."

On cross-examination, George explained that when defendant said he did not have $10,000, Bonsness told him he had to have something. Defendant said he only had $69 in his pocket and he would give them that. The officers kind of laughed and said, "No, we want more than that."

DISCUSSION

I. Evidence Related to Manufacture of Methamphetamine

Defendant contends the trial court abused its discretion by admitting evidence of his uncharged possession of the methamphetamine manufacturing items because the evidence was highly inflammatory and only minimally relevant to the determination of whether he possessed drugs for sale. He maintains the error implicated his right to a fair trial and due process. The People respond that the evidence was relevant to whether defendant possessed drugs for sale because a person who possesses drugs only for personal use does not manufacture the drug or possess a manufacturing lab. We agree with the People.

"While evidence of other crimes is inadmissible when offered to prove criminal disposition or the propensity of the accused to commit a particular crime [citation], such evidence is admissible when offered to prove such issues as motive, opportunity, intent, common design and plan, knowledge or identity. (Evid. Code, § 1101, subd. (b); [citation].) However, before admitting such evidence for such a qualified purpose, it must be determined that the probative value of the evidence outweighs its inherent prejudicial nature. The proffered evidence must logically, naturally and by reasonable inference tend to prove the issue in dispute." (People v. Perez (1974) 42 Cal.App.3d 760, 763-764.) "On appeal, a trial court's ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion." (People v. Lewis (2001) 25 Cal.4th 610, 637.) A court abuses its discretion only when its ruling exceeds the bounds of reason. (People v. Kipp (1998) 18 Cal.4th 349, 371.)

Intent to sell is an element of possession of a controlled substance for sale. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) Here, the evidence that defendant possessed methamphetamine manufacturing equipment and recipes for making methamphetamine was relevant to prove that defendant's interest in methamphetamine extended beyond his own personal recreational use and into the realm of commercial enterprise. This is true even if the evidence did not establish that the equipment had ever been used or that defendant had ever made methamphetamine. Defendant possessed the equipment and, by his own admission, he had been interested in manufacturing. The reasonable inference was that he intended to manufacture methamphetamine so he could sell it.

We do not believe, as defendant urges, that the evidence was unduly inflammatory because the search involved hazardous chemical suits and a cordoned-off perimeter. Reasonable jurors are capable of understanding, without being unduly influenced by, the dangerous nature of certain materials and the need for careful investigation. In our estimation, the single photograph of two investigators in hazardous chemical suits is not particularly disturbing or inflammatory.

In any event, we conclude that even if admission of the evidence was error, it was harmless error. Evidence apart from the manufacturing evidence overwhelmingly demonstrated that defendant possessed the methamphetamine for the purpose of sales— not only did he possess a large amount of the drug, he also possessed scales, packaging materials, pay-owe sheets, and firearms, all of which were indicative of sales rather than personal use. In addition, the evidence that defendant possessed a second drug for sale further supported the conclusion that defendant was in the business of selling drugs. In our opinion, admission of the manufacturing evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

Having found no resulting prejudice, we need not address whether the performance of counsel was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Hester (2000) 22 Cal.4th 290, 296-297 [if on review court finds that alleged incompetence of counsel was not prejudicial, court need not address whether counsel's actions were deficient].)

II. Section 654

Defendant argues the trial court erred by imposing punishment on both counts 8 and 9 for being a felon in possession of a firearm because there was no evidence he harbored separate intents or objectives in the possession of the two weapons. The verdict on count 8 specified possession of the 12-gauge shotgun, and the verdict on count 9 specified possession of the 39-millimeter rifle. We find no error.

"Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the 'intent and objective' of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)

Whether the defendant possessed multiple objectives and intents within the meaning of section 654 is a factual question. We will uphold a trial court's explicit or implicit finding if it is supported by substantial evidence. The trial court's determination is viewed in the light most favorable to the People and we presume the existence of every fact that could reasonably be deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The absence of a timely objection during sentencing does not forfeit a section 654 claim. (People v. Le (2006) 136 Cal.App.4th 925, 931.)

Section 12021, subdivision (a)(1) states: "Any person who has been convicted of a felony ... and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." The purpose of section 12021 is to protect the public by banning possession of firearms by those who are more likely to use them for improper purposes. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037.) A felon who possesses multiple weapons that can be used for multiple purposes is inherently more dangerous than a felon with a single firearm he possesses for a single objective. His firepower and dangerousness, and thus his culpability, increase with each additional firearm he possesses. (See People v. Perez (1979) 23 Cal.3d 545, 553 ["A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act"].)

In People v. Kirk (1989) 211 Cal.App.3d 58 (Kirk), the court held that the defendant could not be convicted of multiple counts of unlawfully possessing a sawed-off shotgun under former section 12020 for his contemporaneous possession of two shotguns, which were found at the same time and place. (Kirk, supra, at p. 65.) In light of this holding, the court did not consider the defendant's contention that section 654 barred punishment for more than one violation of section 12020. (Kirk, supra, at p. 65.)

In response to Kirk, the Legislature added subdivision (k) to section 12001, which provides that for the purposes of, among other things, sections 12021 and 12021.1, "notwithstanding the fact that the term 'any firearm' may be used in those sections, each firearm or the frame or receiver of the same shall constitute a distinct and separate offense under those sections." (See Stats. 1994 (1993-1994 1st Ex. Sess.) ch. 32, § 5, pp. 8657-8658.)

Thus, it has been established that a felon may be separately convicted for possession of multiple firearms. But the question of whether a felon may be separately punished for possession of multiple firearms is pending before the Supreme Court in People v. Correa, review granted July 9, 2008, S163273.

Here, we decide that defendant's possession of both the 39-millimeter rifle and the 12-gauge shotgun, which were distinct and separate offenses under section 12001, subdivision (k), were properly subject to separate punishment because the record contains substantial evidence of independent criminal objectives. (§ 654; People v. Cleveland, supra, 87 Cal.App.4th at pp. 267-268.) The 39-millimeter rifle was found leaning against the wall at the front door, and the 12-gauge shotgun was found in defendant's bedroom, where he kept a large stash of methamphetamine and marijuana, plus scales and packaging material. Although defendant stated he obtained the weapons for his protection after he was robbed, the nature and placement of the weapons supported a reasonable inference that the weapons could serve different purposes and could be used to commit multiple crimes. The rifle could be used during drug deals at the front door or for protecting the house from approaching threats, and the shotgun could be used to protect defendant and his stash of drugs against intruders who might enter the bedroom, possibly at night. In our opinion, these two uses support sufficiently different objectives. Under these facts, the trial court did not err in failing to stay one of the sentences for being a felon in possession of a firearm.

III. Personal Arming Enhancement

Lastly, defendant contends the trial court failed to exercise its sentencing discretion when it imposed a four-year personal arming enhancement connected to count 4, rather than striking it. Defendant argues that the facts of his case did not justify the harsh sentence. We disagree.

Section 12022, subdivision (c) provides for a three-, four-, or five-year enhancement when the defendant was "personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code." "The purpose of Penal Code section 12022, subdivision (c) is to require 'proof the defendant personally had a firearm "at the ready."' [Citation.]" (People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1577.) "'The desire of the Legislature to prevent death and injury as a result of the involvement of firearms in the commission of crime is manifest from the various provisions for increased punishment for crimes where firearms are in some way involved. The underlying intent of the Legislature is to deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of the crime. Thus there is aggravated punishment for a person who is armed with a deadly weapon even though no use is made of the weapon.' [Citation.]" (People v. Garcia (1986) 183 Cal.App.3d 335, 350.)

Defendant argues he was locked out of his house and had no ready access to the firearms inside. He also contends there was no evidence he was actively selling drugs on November 12—he was just in the back yard with friends trying to move an old car. Under these circumstances, he asserts, the trial court should have struck the enhancement in the interest of justice. The People incorrectly respond that defendant was found inside the house, exiting the shower. As the record repeatedly establishes, that person was Mark. Defendant was outside. However, both parties fail to mention evidence that although the front door was locked (and defendant may or may not have had a key to it), the people who were outside attempting to move the Oldsmobile were seen going in and out of a back door to the house. Based on the group's proximity to that door, the officers purposely chose to enter through the front door. Thus, there was evidence that while defendant and his companions were outside in the yard, they had ready access to the inside of the house and the weapons kept there. The record also provides ample support for the conclusion that defendant was currently engaged in drugs sales at the house. He admitted living there, buying the marijuana, obtaining the firearms, and having an interest in manufacturing methamphetamine. directed the officers to the drugs in the backpack inside his bedroom closet. His house contained large amounts of drugs, to which he directed the officers, and it contained packaging materials, pay-owe sheets, and firearms.

When asked why the officers did not enter through the open back door, McIrvin explained: "Because that [back] door was open and we had already had the subjects detained out back with multiple officers out back. We chose to make entry through the front, the opposite side, leaving a couple officers in the back to make sure nobody ran out the front if we had gone through the same door where the subjects had been going in and out. So we left the south side of the yard and walked around to the front, the north side, and made our entry that way."
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On this record, we conclude the trial court did not abuse its discretion by imposing the personal arming enhancement. Again, having found no prejudice, we need not address whether counsel was ineffective. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Hester, supra, 22 Cal.4th at pp. 296-297.)

DISPOSITION

The judgment is affirmed.

_____________________

Kane, J.
WE CONCUR:

_____________________

Gomes, Acting P.J.

_____________________

Dawson, J.


Summaries of

People v. Brock

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Dec 27, 2011
F061389 (Cal. Ct. App. Dec. 27, 2011)
Case details for

People v. Brock

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DONALD JOHN BROCK, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Dec 27, 2011

Citations

F061389 (Cal. Ct. App. Dec. 27, 2011)