Opinion
C084968
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. GLEN DEL STEVENSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16F6235, 13F2050)
A jury found defendant Glen Del Stevenson guilty of crimes including misdemeanor methamphetamine possession and carrying a loaded firearm in a vehicle. On appeal, defendant contends (1) insufficient evidence supported the methamphetamine possession count; and (2) as to the firearm count, the trial court erred in failing to instruct that the prosecution must prove defendant knew the gun was loaded. We will affirm.
BACKGROUND
During what the parties stipulated was a lawful search and arrest, an officer asked defendant if he had anything illegal on him. Defendant said no. The officer then removed what he suspected was methamphetamine from defendant's front pant pocket. Defendant said, " 'Except for that.' " When asked what he meant, defendant said, " 'Well, you asked if I had anything illegal on my person.' . . . 'Except for that.' "
The officer had found "a clear, crystal-like substance" in a clear Ziploc baggie, and based on his prior contacts and training on visual identification of controlled substances the officer believed the substance was methamphetamine. At trial, the officer testified he had been trained in the visual identification of controlled substances at the police academy, the sheriff's office, and at several in-house police department trainings. He had made over 300 drug related arrests. And in his 16 years on the force, he had come into contact with methamphetamine almost daily.
On cross-examination, the officer was asked if he had sent the substance to a Department of Justice lab. He said he had, but added, "I'm not sure if it was tested there or not yet."
In limine, the trial court excluded evidence the officer performed a NARK II presumptive test on the substance.
An inventory search of defendant's motorcycle uncovered a glass smoking pipe. Based on his training and experience, the officer testified he determined the pipe was consistent with one used to smoke methamphetamine. He added he comes into contact with items like that almost daily.
Also in the motorcycle was a .380-caliber handgun loaded with a magazine of eight 9-millimeter rounds. Asked whether a .380-caliber gun could fire larger 9- millimeter rounds, the officer explained: "The first one could potentially fire. I'm not sure. I wouldn't want to be the one attempting it."
As the officer was driving defendant to the jail, he read defendant his Miranda warnings and asked if defendant wanted to make a statement. Defendant said no, adding, " 'It was pretty cut and dry.' "
The jury found defendant guilty of possessing a firearm as a felon (Pen. Code, § 29800, subd. (a)); carrying a loaded firearm in a vehicle (§ 25850, subd. (a)); misdemeanor methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possessing an injecting or smoking device (Health & Saf. Code, § 11364, subd. (a)).
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Substantial Evidence Supports the Methamphetamine Possession Count
Defendant first contends insufficient evidence established he possessed methamphetamine. He notes no test results from the Department of Justice lab were presented, and he avers the officer never testified to his experience and training regarding methamphetamine, never testified he was a narcotics officer, and never testified his training and experience equipped him to identify by sight alone methamphetamine, as opposed to other crystal-like substances. We disagree.
"[C]hemical analysis is not always required to establish the identity of a controlled substance." (People v. Mooring (2017) 15 Cal.App.5th 928, 943.) The elements of possession of a controlled substance charge may be established by circumstantial evidence. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) And where the sufficiency of evidence is challenged, we review the record in the light most favorable to the judgment to determine if there is reasonable, credible, and solid-value evidence from which a reasonable jury could find a defendant guilty beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396.) That same standard of review applies when the conviction rests primarily on circumstantial evidence. (Ibid.) And though the jury must acquit if it finds circumstantial evidence susceptible of two reasonable interpretations (one suggesting guilt, one innocence), the appellate court may not reverse simply because the circumstances might also reasonably reconcile with a contrary finding. (People v. Farnam (2002) 28 Cal.4th 107, 143.) We reverse only if on no hypothesis does sufficient evidence support the judgment. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Here, substantial evidence supports the conviction. The officer, a 16-year veteran, testified he had trained in visually identifying controlled substances at the academy, the sheriffs' department, and the police department. He had made over 300 drug related arrests and had almost daily contact with methamphetamine. Further, a glass pipe that the officer identified as consistent with one used to smoke methamphetamine was found in defendant's motorcycle.
Defendant in turn, admitted having an illegal substance: " 'you asked if I had anything illegal on my person.' . . . 'Except for that.' " And when offered a chance to make a statement he volunteered, " ' It was pretty cut and dry.' "
On this record, a jury could reasonably conclude defendant possessed methamphetamine.
II
The Trial Court Properly Instructed the Jury on the Elements of Carrying a Loaded
Firearm in a Vehicle
Defendant challenges his conviction for carrying a loaded gun in a vehicle (§ 25850, subd. (a) ), contending the trial court erred in failing to instruct sua sponte that the prosecution must prove defendant knew the gun was loaded. Citing People v. Gonzales (2015) 232 Cal.App.4th 1449 (Gonzales) he argues section 25850 requires knowledge the gun is loaded. Defendant is mistaken.
Section 25850, subdivision (a), provides: "A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in the vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory."
In the alternative, he argues his trial counsel rendered ineffective assistance in failing to request the instruction.
Gonzalez is no help to defendant. In it, Gonzales had been convicted, under section 26100 subdivision (a), of knowingly permitting a passenger to carry a loaded firearm in the vehicle. (Gonzales, supra, 232 Cal.App.4th at pp. 1452-1453.) Reversed on appeal, the appellate court held section 26100 requires proof the owner or driver knew his or her passenger's gun was loaded. (Gonzales, at p. 1463.) It noted from the legislative history, the Legislature intended to limit criminal liability to a driver who knew the firearm was loaded. (Id. at pp. 1460, 1462.) The rationale being a driver who knows only that a passenger has a firearm — but not that it is loaded — does not act with criminal intent because carrying an unloaded firearm in a vehicle is legal. (Id. at p. 1462.) Extending liability could, for example, reach a driver driving a fellow hunter if the passenger fails to unload his or her gun. (Ibid.) Indeed, a driver has no readily available means of avoiding liability other than personally checking each passenger's gun. (Ibid.)
Section 26100, subdivision (a), provides: "It is a misdemeanor for a driver of any motor vehicle or the owner of any motor vehicle, whether or not the owner of the vehicle is occupying the vehicle, knowingly to permit any other person to carry into or bring into the vehicle a firearm in violation of Section 25850 of this code or Section 2006 of the Fish and Game Code."
Here, however, defendant was not convicted of permitting a passenger to carry a loaded firearm, he was convicted of carrying his own loaded gun in his vehicle — a crime that has been held to not require knowledge the gun is loaded. (See People v. Dillard (1984) 154 Cal.App.3d 261, 263 [under predecessor statute, knowledge the gun is loaded is not an element of the offense]; People v. Garcia (2007) 153 Cal.App.4th 1499, 1514, fn. 3 [same].)
Defendant nevertheless maintains sections 25850 and 26100 are virtually identical with respect to the knowledge element. They are not. Defendant also asserts, "[t]he Gonzales court persuasively explained at length why the contrary holdings in [Dillard] have been superseded by a long line of subsequent California Supreme Court cases." Gonzales, supra, 232 Cal.App.4th 1449 did not. Moreover, the rationale articulated in Gonzales does not apply to section 25850. The challenges of a driver ensuring his or her passengers' guns are unloaded are not present where the gun at issue is carried by the defendant.
The Gonzales court noted Dillard, supra, 154 Cal.App.3d 261 preceded the " 'evolution of [the California Supreme Court's] mens rea jurisprudence,' " but Gonzales otherwise offered nothing to suggest section 25850 requires knowledge the gun is loaded. (See Gonzales, supra, 232 Cal.App.4th at p. 1457.) --------
Accordingly, the trial court did not err in instructing the jury, and defense counsel did not render ineffective assistance in failing to request an instruction that the prosecution must prove defendant knew the gun was loaded.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BLEASE, J.