Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. SA064418, Cynthia Rayvis, Judge.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant Raheen Mario Childs.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant Harold Randolph Arnold.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, ACTING P. J.
Raheen Mario Childs and Harold Randolph Arnold appeal their convictions for felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1) (section 12021(a)(1)). They join in each other’s issues to the extent applicable. They contend: (1) there is insufficient evidence for Childs’s conviction, (2) there were prejudicial errors in the instructions on the knowledge element of the offense, (3) the trial court should not have excluded defense photos that attempted to recreate what the arresting officer could have seen from his patrol car, (4) a flight instruction should not have been given, and (5) an upper term sentence should not have been selected for Arnold.
Subsequent code references are to the Penal Code unless otherwise stated.
We affirm, as there was substantial evidence of guilt and no prejudicial error.
PROCEDURAL HISTORY
On July 13, 2007, a six-count information was filed against Childs, Arnold, and a third defendant, Sean Andrade Ayala, who is not a party to this appeal.
Count 1 alleged that the three defendants discharged a firearm at an inhabited dwelling. The jury found the defendants not guilty on that count.
Count 2 alleged that Childs and Ayala committed an assault with a firearm. Count 3 contained that same allegation for Arnold. Counts 2 and 3 were accompanied by allegations of personal use of a firearm. The jury “deadlocked seven to five for not guilty” on those counts, and they were later dismissed.
Counts 4, 5, and 6 alleged that Arnold, Ayala, and Childs, respectively, violated section 12021(a)(1). Prior to trial, Ayala’s section 12021(a)(1) charge, count 5, was stricken. The jury found Arnold guilty on count 4 and Childs guilty on count 6.
The information also had various allegations arising from the defendants’ prior felony convictions, which included two strikes for Childs and one strike for Arnold. After the verdict, Childs admitted one of his strikes and the court struck the other. The court found Arnold’s prior strike to be true. It sentenced both Childs and Arnold to six years in prison, based on the upper term of three years for violating section 12021(a)(1), doubled for one strike.
FACTS
1. Prosecution Evidence
A. C.S.’s 911 Call
C.S. telephoned 911 at 4:24 a.m. on May 27, 2007. She reported that she was awakened by the sound of gunfire, looked out her window, and saw four Black men running out of a building located across the street from her home (the building across the street). About an hour earlier, those same men had been seated outside in a white truck, yelling for a girl to come outside. Three girls had come outside and walked into the building across the street. They then came outside and argued with the men in the white truck, who drove away.
B. C.S.’s Testimony
C.S. lived in the front unit of an apartment building (hereafter C.S.’s building). It was about 2:00 a.m. when the four Black men were yelling for the girl to come outside. C.S. described the four men. One of them, who had braids in his hair, told her he was looking for his sister, who had been robbed. Three young Black women came outside. The man in braids asked the women to show him where some people (apparently the robbers) lived. He went into the building across the street with his male companions and the three women. They all came outside and argued some more. Someone said, “If anything happened to my family somebody was going to die.” The four men then drove away in a sports utility vehicle (SUV). C.S. turned on her TV and tried to fall asleep. About “an hour and a half” later, she heard the shooting at the building across the street. Looking through her blinds again, she saw that the four men had returned with two more Black men whom she had not seen before. They all held handguns and were “running out of the apartment building shooting.” They turned and fired over their shoulders at a person inside the building who was firing back at them. They left the building and ran toward another street. C.S. dialed 911 within seconds of the last gunshot. Later that morning, the police took her to the spot where the SUV had been stopped, less than a mile away. She identified Ayala and Childs at that time and at the trial, but she never identified Arnold at any point, and she said she never again saw the man with braided hair after the shooting incident. She indicated at the trial that Childs was one of the two additional men who joined the original four at the time of the shooting.
On cross-examination, C.S. added that she was wearing glasses during her testimony, and always wore glasses, but was not wearing glasses when she looked through her blinds. Also, the window had security bars on it. She heard two to four gunshots and then constant shooting. When she looked through her blinds, she saw the six men “inside the hallway” of the building across the street, running toward its glass doors. They fired “more than ten shots,” and the person inside fired back “at least four shots.”
C.S. added during cross-examination that she had been confused at the preliminary hearing by the numerous questions that Childs’s attorney, Donald Kelly, had asked her. Actually, Kelly was not present at the preliminary hearing, as Childs was represented at that time by a deputy public defender, Thomas Althaus. When C.S. saw Althaus and Kelly in the courtroom at the same time, she said they “kind of look[ed] alike” to her.
C. D.M.’s Testimony
D.M. was a teenage girl who lived inside the building across the street, in a bedroom along the hallway that began on the right side of the front door. Around 2:00 a.m., D.M. heard a man and two women arguing in the hallway. About two hours later, she heard “[f]our or five” gunshots in quick succession. She thought the shots came from inside the hallway, near her.
D. Officer Jose Saldana’s Testimony
At 4:27 a.m., Officer Jose Saldana of the Hawthorne Police Department was alone in a patrol car, a few blocks from the shooting location. He heard a radio broadcast about C.S.’s 911 call, which included the facts that shots had been fired and “a newer model white SUV” was involved. He saw an SUV of that description speeding on the street. He made a U-turn and followed it, with his overhead lights and siren working. The SUV did not stop or reduce speed. He chased it. It turned onto a residential street and moved close to the curb on the passenger’s side. An arm extended from the window on the front passenger side and tossed out a handgun (hereafter the tossed gun). The SUV turned left at the end of the block, drove into a driveway, and stopped at a fence at the end of the driveway.
Officer Saldana stopped behind the SUV and got out of his patrol car with his gun drawn. The only open window was on the front passenger side. Arnold got out from the seat next to that window, ran toward Saldana, put his hands up, and sat down. Ayala, the driver, initially ran away, but was later apprehended. He owned the SUV. The third person in the SUV, who was seated behind Ayala, ran away and was never found. Childs was the fourth person in the SUV. He remained seated in the back seat on the passenger’s side, behind where Arnold had been sitting. After backup officers arrived, Childs obeyed instructions to leave the SUV with his hands up.
E. Other Prosecution Evidence
A.357 magnum revolver that held seven expended bullet casings was recovered at the spot where Officer Saldana saw it thrown from the SUV. The parties stipulated that Childs and Arnold had previously been convicted of a felony.
2. Defense Evidence
The defendants’ fingerprints were not on the tossed gun. No weapons or ammunition were found inside the SUV. At the front of the building across the street, police officers found no evidence of the gun battle C.S. described. Elsewhere in the building they found several bullet holes, two bullet slugs, and an expended bullet casing for a different type of gun.
DISCUSSION
1. Sufficiency of the Evidence That Childs Violated Section 12021(a)(1)
Childs maintains that his conviction must be reversed because there was no evidence that he had knowledge of, touched, or exercised control over the gun that Arnold tossed from the front passenger seat, or that he aided and abetted Arnold’s commission of the section 12021(a)(1) offense. Applying the appropriate standard of review (People v. Kraft (2000) 23 Cal.4th 978, 1053), we disagree.
Section 12021(a)(1) penalizes a 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.”
“The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person. [Citations.] No specific criminal intent is required, and a general intent to commit the proscribed act is sufficient to sustain a conviction. [Citations.] With respect to the elements of possession or custody, it has been held that knowledge is an element of the offense.” (People v. Snyder (1982) 32 Cal.3d 590, 592; see also People v. Jeffers (1996) 41 Cal.App.4th 917, 922 (Jeffers).)
Childs focuses on Officer Saldana’s testimony and relies heavily on United States v. Soto (9th Cir. 1986) 779 F.2d 558, 560. Here, however, there was much more than Saldana’s testimony. C.S. testified that Childs was one of the six men who shot into the building across the street and ran away, seconds before she dialed 911, about three minutes before Saldana saw the SUV on a street near that building. “The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296; see also CALCRIM No. 301.) The jurors were free to believe or reject any part of C.S.’s testimony (see CALJIC No. 2.21.2), and it was partly supported by her 911 call. There also was evidence that the tossed gun contained expended casings, the teenage witness D.M. also heard gunshots, there were bullet holes in the building, and there was a motive for the shooting. The combination of all the evidence convinces us that there was substantial evidence of Childs’s guilt on the section 12021(a)(1) charge.
2. The Instructions on the Mental State of Knowledge
As indicated, section 12021(a)(1) is a general intent crime that requires an additional specific mental state, knowledge. (Jeffers, supra, 41 Cal.App.4th at p. 922.) The jury was correctly informed of the elements of the offense, including knowledge, through CALCRIM No. 2511. The issue is whether the trial court erred by: (a) giving CALCRIM No. 250 without also giving CALCRIM No. 251, or replacing both CALCRIM Nos. 250 and 251 with CALCRIM No. 252; (b) giving CALCRIM No. 224 instead of CALCRIM No. 225; and (c) refusing to give an optional paragraph in CALCRIM No. 401 that Childs’s counsel requested.
A. CALCRIM No. 250
The “Bench Note” to CALCRIM No. 2511 states that the court has a sua sponte duty to instruct on the union of general criminal intent and action in terms of CALCRIM No. 250. The Bench Note to CALCRIM No. 250 states that this instruction should not be given if the crime requires a specific mental state such as knowledge and the crime is a general intent crime. In such cases, the court should give either CALCRIM No. 251 or, if the case involves an offense that require a specific mental state and an offense that does not, the court should give CALCRIM No. 252.
The court should not have given CALCRIM No. 250 but either CALCRIM No. 251 or 252. The question is whether this error was prejudicial; we conclude it was not. First, there was testimony by C.S. that she saw Childs holding and firing a gun. Thus, it is not reasonably probable that the jury would have exonerated Childs if CALCRIM No. 251 or 252 would have been given. (People v. Watson (1956) 46 Cal.2d 818, 836.) Second, it is also true that CALCRIM No. 2511 instructed the jury that they had to find that Childs knew that he was in possession of a gun. Thus, there was not a complete absence of an instruction on knowledge but rather a conflict or tension between CALCRIM Nos. 2511 and 250. Given the evidence, this did not prejudice Childs.
B. CALCRIM Nos. 224 and 225
Childs contends that CALCRIM No. 225 should have been given on circumstantial evidence showing intent or mental state, rather than the more general CALCRIM No. 224 on circumstantial evidence. The People’s case on knowledge did not rest on circumstantial evidence showing knowledge but rather direct evidence that showed that Childs was holding and firing a weapon. In any event, CALCRIM No. 224 was appropriate with reference to other charges.
C. The Optional Paragraph in CALCRIM No. 401
Childs contends that the optional paragraph of CALCRIM No. 401 should have been given; the gist of this paragraph is that mere presence at the crime scene does not make a person an aider and abettor. Child’s conviction rests not on aiding and abetting but on evidence that he personally was knowingly in possession of a firearm. There was no need to give this optional paragraph.
3. Exclusion of Photographs
Arnold and Childs contend that the trial court should not have excluded photographs taken by a defense investigator that purportedly would have impeached Officer Saldana’s testimony that he saw an extended arm toss the gun from the SUV.
Arnold and Childs maintain that exclusion of the pictures violated their constitutional rights to present a defense, to trial by jury, and to confrontation. (U.S. Const., 4th, 6th & 14th Amends.)
A trial court’s decision to admit or not admit evidence is reviewed on appeal for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.) We find no abuse of discretion here because, as indicated by the trial court, there were too many variables involved between the photos and the actual tossing of the gun. Moreover, even if we were to assume error, there was no prejudice, as a gun was indeed found where Officer Saldana saw it tossed, and the jurors would have concluded that Saldana simply under-estimated the distance between the patrol car and the SUV.
4. The Flight Instruction
Childs and Arnold contend that, as to the section 12021(a)(1) offense, there was no evidence to support CALCRIM No. 372, which told the jury that a defendant’s flight after a crime may be used to show consciousness of guilt. Arnold argues that he ran toward Officer Saldana as soon as the SUV stopped, and he had no control over the refusal of Ayala, the driver, to stop for Saldana. Childs stresses that he was sitting in the back seat during Saldana’s pursuit of the SUV and remained seated there after the SUV stopped.
We find sufficient support for the flight instruction as to Childs in the evidence that Childs ran from the building across the street after shots were fired there. As to Arnold, there was sufficient support for the flight instruction in the evidence that Arnold tossed out the gun after Ayala moved the SUV closer to the curb, which showed that Arnold and Ayala were working together while Officer Saldana pursued the SUV.
5. Arnold’s Sentencing Issue
Arnold contends that he received ineffective assistance of counsel because his counsel did not object to inappropriate reasons that were used to impose the upper term.
A. The Record
The information alleged that Arnold had one prior felony conviction, a conviction in 2002 for first degree burglary. That conviction was alleged as a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), as a prior conviction of a serious felony (§ 667, subd. (a)(1)), and as the underlying felony for Arnold’s section 12021(a)(1) count.
At the sentencing hearing, the trial court first heard and denied motions for new trial from Arnold and Childs. Arnold’s counsel then strenuously argued for dismissal of Arnold’s prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), particularly because Arnold successfully completed probation on that crime. Arnold’s and Childs’s counsel both requested lenient sentences for their clients. Childs’s girlfriend spoke for Childs, and Arnold’s sister spoke for Arnold. For both defendants, the prosecutor sought the sentence the trial court eventually imposed, the upper term of three years for violating section 12021(a)(1), doubled for one strike. The prosecutor argued that the upper term was appropriate for Arnold because, in addition to the prior strike, Arnold had a “law enforcement contact” in 2005, he “was hanging around with other ex-cons” when he was arrested on this case, and he tossed out a gun that contained expended casings. The court asked whether Arnold and Childs should have the same sentence, as Childs’s prior record was much lengthier than Arnold’s. The prosecutor thought identical sentences were appropriate.
The court turned to Arnold’s Romero motion. After describing the facts of the strike, which was a residential burglary, it refused to dismiss the strike because of the severity of the prior crime, the fact the current crime involved a weapon, and the fact the two crimes were not remote in time. It then gave these reasons for giving Arnold the upper term: “Mr. Arnold has a prior serious or violent felony, first degree burglary, from 2002. Although probation was terminated early, the court finds that because of that prior felony, the circumstances of that felony and the fact that here he has been convicted of a crime involving a weapon of which he was testimony showed he was the person tossing the weapon out of the car, the court chooses the high term.”
Arnold complains that his trial counsel failed to object that (a) the prior burglary conviction could not be used as the reason for the upper term, as it was the underlying felony for the section 12021(a)(1) violation; and (b) the fact the current crime involved a weapon was also an inappropriate basis for the upper term, as possession of a weapon was an element of the crime.
Arnold’s argument lacks merit because “the finding of even one factor in aggravation is sufficient to justify the upper term” (People v. Steele (2000) 83 Cal.App.4th 212, 226), and one of the reasons named by the trial court was Arnold’s tossing the gun from the car. We assume the trial court was also thinking about the empty cartridges in the gun, which the prosecutor had just mentioned. Possession of a gun is an element of the section 12021(a)(1) offense, but tossing out a gun containing empty cartridges is much more than simply possessing a gun. That fact alone was a sufficient reason for the upper term. Arnold has therefore not met his burden of showing a reasonable probability that, if an objection had been made, the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
The California Supreme Court has not yet resolved whether the prohibition against dual use of facts was affected by the amendment of section 1170, subdivision (b) in Senate Bill No. 40 (2007-2008 Reg. Sess.). That amendment includes this sentence: “The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” The Judicial Council’s Advisory Committee Comment to California Rules of Court, rule 4.420 indicates: “It is not clear whether the reasons stated by the judge for selecting a particular term qualify as ‘facts’ for the purposes of the rule prohibition on dual use of facts. Until the issue is clarified, judges should avoid the use of reasons that may constitute an impermissible dual use of facts.”
DISPOSITION
The judgments are affirmed.
WE CONCUR BIGELOW, J., BAUER, J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.