Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA076890, Daniel J. Buckley, Judge.
Jonathan B. Steiner and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SUZUKAWA, J.
Efrain Coronado appeals from the judgment entered following a jury trial in which he was convicted of possession of a destructive device on a public street (Pen. Code, § 12303.2) and sentenced to prison for the middle term of four years. He was found not guilty of possession of flammable material (Pen. Code, § 453, subd. (a)) and possession of a destructive device (Pen. Code, § 12303).
Penal Code section 12303.2 provides in relevant part, “Every person who recklessly or maliciously has in his possession any destructive device or any explosive on a public street or highway... is guilty of a felony, and shall be punishable by imprisonment in the state prison for a period of two, four, or six years.”
The evidence at trial established that on October 28, 2006, at approximately 2:00 a.m., Los Angeles County Deputy Sheriff Glen Eads responded to a call that a person in a dark-colored vehicle was throwing bottles at a home on Lomitas Avenue, in the City of Bassett, County of Los Angeles. When Deputy Eads arrived at the location, he observed a black Mercedes automobile, with the driver’s side window rolled down, parked in front of the residence. Deputy Eads approached appellant, who was sitting in the driver’s seat and was the only person in the vehicle. The deputy asked, for safety reasons, to see appellant’s hands. Appellant’s hands were between his legs, and he immediately moved his hands toward the right portion of his body. Deputy Eads again asked to see appellant’s hands and appellant, who appeared nervous, made the same movement. Not knowing if appellant was trying to recover a weapon, the deputy asked appellant to exit the vehicle so they could talk. After appellant exited the vehicle, the deputy observed a bottle, with a cloth stuffed in the neck, between the center console and the passenger seat, and a lighter on the center console. Deputy Eads suspected the bottle was a Molotov cocktail. After removing the cloth from the bottle, he smelled gasoline.
Ana Rosa Cosio lived at the residence on Lomitas and called the police at approximately 1:00 a.m., when she heard bottles being thrown. Her husband, Servando Cosio, went outside after the police had detained appellant and recognized him as someone with whom he had had a dispute regarding construction blueprints. A few days before the bottle-throwing incident, appellant came to Mr. Cosio’s home with a gun in his waistband and threatened to harm him.
Los Angeles County Deputy Sheriff James Gonzalez was a detective based out of the arson/explosive detail and it was his opinion that the beer bottle recovered in appellant’s vehicle was a Molotov cocktail, also referred to as a destructive device or an incendiary device.
Appellant testified in his defense that he never had any business dealings with Mr. Cosio regarding construction work or blueprints and never had a dispute with him. Appellant was a confidential informant for “Alcohol, Tobacco, and Firearms... a federal agency,” and had mentioned Mr. Cosio as a person of interest to his agent in charge. Appellant advised his agent he was to meet with Mr. Cosio on or about October 27, 2006. Appellant was not intending to purchase items from Mr. Cosio but rather to verify the location of items being offered for sale and the person offering the items for sale. After meeting with Mr. Cosio at a restaurant, appellant gave him a ride home. Upon arriving at the Cosio residence, Mr. Cosio asked appellant to wait so he could retrieve something. Appellant sat in his car waiting for Mr. Cosio to return and the police arrived after approximately five minutes. Appellant never tossed any beer bottles. The bottle found in appellant’s car contained fuel for power tools and was left by workers appellant had transported.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
An ATF special agent testified that during the relevant time appellant was being used as a confidential informant. Appellant supplied the name of Mr. Cosio to the agent as a person of interest.
Appellant’s motion for a new trial based on newly discovered evidence was denied.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On December 15, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. Appellant’s application for extension of time to file a supplemental brief was granted and on January 29, 2009, he filed same. Appellant raises numerous issues. He contends:
1. The trial court erred in not granting a new trial in that there was insufficient evidence that the item appellant possessed was a destructive device. He claims the evidence failed to establish the flash point of the liquid since the liquid had been destroyed prior to testing. Appellant also asserts the cloth received along with the liquid was destroyed in an open flame test, which was not a controlled test, thus the temperature of the flame was never established. Appellant acknowledges there was substantial testimony that gasoline was a component of the liquid.
Contrary to appellant’s claim there was sufficient evidence that appellant possessed a destructive device. Steven Phillips, a senior criminalist for the sheriff’s department, testified he examined the vial that had contained the liquid found in the beer bottle in appellant’s possession. When Phillips examined it, the stopper was off and there was no visible liquid. This, however, did not affect his ability to do the necessary testing. He tested the vapor-tight can that housed the vial for the presence of ignitable liquid residue and identified weathered or partially burnt gasoline. Phillips was unable to test for a flash point because there was no liquid but testified that the flash point of gasoline was minus 40 degrees Fahrenheit. He tested the fabric to see if it burned, and it did.
2. The prosecution’s failure to preserve evidence prejudiced the defense. Witness Phillips testified the liquid in the vial had evaporated but the remaining vapors in the vapor-tight can were sufficient to conduct the necessary testing. Even though the investigating officer testified that after he siphoned out some of the contents of the beer bottle for testing and “dump[ed] the rest of the contents,” appellant has made no showing that this evidence possessed an exculpatory value that was apparent before it was destroyed or that the officer acted in bad faith. Appellant’s claim must fail. (See People v. Ochoa (1998) 19 Cal.4th 353, 417.)
3. The trial court erred in failing to instruct on the element of knowledge. Appellant asserts the jury should have been instructed that, to find him guilty, it had to find he knew or should have had known of the destructive characteristics of the device. He also asserts that knowledge was required to establish he acted recklessly.
The mens rea required for a conviction under Penal Code section 12303.2 is that the defendant acted with either malice or recklessness. (See People v. Heideman (1976) 58 Cal.App.3d 321, 355-356.) The jury was properly instructed, “A person acts recklessly when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk, (2) he or she ignores that risk, and (3) the person’s behavior is grossly different from what a reasonable person would have done in the same situation. [¶] Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else.” To the extent appellant is claiming the instruction needed amplification or clarification, he waived such a claim by failing to make such a request at trial. (See People v. Catlin (2001) 26 Cal.4th 81, 149.)
4. The prosecutor committed misconduct by expressing a personal opinion that a defense witness was lying. The prosecutor’s statement, however, was made in the context of the record and was proper comment on the evidence. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1059.)
5. The prosecution prejudicially violated appellant’s right to discovery by failing to disclose that the liquid sample from the bottle found in appellant’s vehicle was missing and by failing to disclose a conversation its investigating officer had with Fortino Villalobosa, an individual involved in the preparation of architectural drawings. Appellant’s claim is unavailing as he has failed to demonstrate this evidence was material evidence favorable to the accused as required under Brady v. Maryland (1963) 373 U.S. 83, 87.
6. The court erred in not granting a new trial based on newly discovered evidence. Included in appellant’s motion for new trial was a declaration of Efren Navarro, which in essence contradicted Mr. Cosio’s trial testimony that appellant and Mr. Cosio were involved in the preparation of architectural drawings for Mr. Navarro. In denying the motion for new trial, the court observed appellant “had a Molotov cocktail. He’s not supposed to have a Molotov cocktail. By the definition of reckless, [the court agrees] that this issue of lurking outside for bad purposes is not necessary, but to me the evidence had to come in because the slippery slope was — someone was pushed down the slippery slope by Mr. Cosio’s direct testimony. But notwithstanding that, I’m definitely convinced that the prong or element that there would have been a different result with the evidence being proffered now would not be met by the defendant. In other words, I don’t think the result would be different if all this came in.”
We agree that the asserted newly discovered evidence would not have produced a different result, and the trial court did not abuse its discretion in denying the motion for new trial. (See People v. Delgado (1993) 5 Cal.4th 312, 328.)
7. The court erred in limiting the scope of testimony by the ATF agent by prohibiting him from testifying to any other cases or their outcome. Appellant asserts that since his credibility was critical, appellant should have been allowed to present evidence that he had not given bad information about a “mark” as the prosecution insinuated. Further, he contends that not discussing other cases left the jury with an incomplete explanation of how appellant came to meet Mr. Cosio.
We disagree. The agent in fact was permitted to testify that appellant was a confidential informant for the ATF, giving credibility to appellant’s testimony. Additional testimony by the agent was properly limited pursuant to Evidence Code section 352, which gives the trial court discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
8. The photographs of the bottle found in appellant’s vehicle were taken after the scene had been disturbed and the bottle manipulated by different officers. Appellant asserts the pictures were tainted and only served to inflame the jury and that use of the “Elmo” device made the bottle appear larger than life and more sinister. Apart from the fact that no objection to the photographs was made, there is no showing that the jury would have reached a more favorable verdict had those photographs not been received into evidence. (See People v. Gionis (1995) 9 Cal.4th 1196, 1220.)
9. He was denied effective assistance of appellate counsel and requests new counsel be appointed. We do not find appellant has been denied effective assistance of counsel. We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.
Penal Code section 12301 defines destructive device, in relevant part, as “(5) Any breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited....”