Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA079243, Dorothy Shubin, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
A jury convicted appellant Nathan Elmont Eli of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 1) and possession of ammunition (§ 12316, subd. (b)(1)) (count 2). The jury found true with respect to both counts that appellant was convicted of violating section 187, subdivision (a), in May 1965 within the meaning of the Three Strikes Law. (§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i).)
All further references to statutes are to the Penal Code unless stated otherwise.
In count 1, the trial court imposed the midterm of two years, doubled to four years because of the prior strike conviction. In count 2, the trial court imposed a consecutive term of one-third the midterm doubled to 16 months because of the strike. Appellant’s total sentence is five years four months.
Appellant appeals on the grounds that: (1) the trial court erred in excluding evidence relevant to appellant’s defense and rebutting the prosecution’s theory of the case, thus violating his right to due process of law; and (2) the trial court prejudicially erred in failing to instruct the jury that it must find that the prosecution proved each element of the offenses beyond a reasonable doubt in violation of due process.
FACTS
We recite the evidence in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In February 2010, Juanita Rochelle lived in Monrovia with her 19-year-old son. She had known appellant for five years, and they had been boyfriend and girlfriend for periods of time. Rochelle loved appellant. Rochelle also knew appellant’s son, Nathan Eli, Jr. After Rochelle had known appellant for four years, he told her he had been convicted of murder in the 1960’s. In the weeks before February 1, 2010, Rochelle saw appellant or had contact with him almost every day.
On February 1, 2010, Rochelle learned that appellant and his son had been arrested. Because she was concerned, Rochelle went to the Monrovia Police Station where she met with Detective Stewart Levin. In the evening of February 3, 2010, while appellant was still in jail, Rochelle learned that the police had been at appellant’s home. Rochelle was afraid and “didn’t want the guns to be there.” She did not want “them” to get in trouble. Rochelle went to appellant’s home and removed the guns she knew were there. “Freeway, ” an acquaintance of appellant’s, assisted Rochelle in removing the guns. Rochelle also removed ammunition from the house. She did not own any guns and had no use for ammunition. She removed four or five guns from appellant’s home, including at least one rifle and at least one handgun. She put the guns in a closet in her bedroom. Rochelle kept the guns to protect appellant and appellant’s son. The guns had been in “Junior’s” bedroom, and adjacent to that bedroom was an office used by appellant. These rooms were walled off from the rest of the house. Appellant rented out other rooms in the house.
On the same evening that Rochelle moved the guns, appellant telephoned her from county jail. The conversation was recorded, and the recording was played for the jury. During the telephone call, appellant asked Rochelle to contact Freeway about bailing appellant out of jail. Rochelle stated that she had just spoken to Freeway and that she “took the guns out of the house.” When appellant asked what she did with the guns, Rochelle stated, “They’re here.” Appellant replied, “Okay. Cool.” Rochelle told appellant that the police had been at his home that morning and “[t]hey had a paper with them, ” but the police did not enter the yard because of the dogs.
On February 5, 2010, Rochelle bailed appellant out of jail. On February 10, 2010, Detective Levin listened to a recording of the telephone call that appellant made to Rochelle from jail. After hearing Rochelle’s statements about removing guns from appellant’s home, Detective Levin prepared search warrants for appellant’s home and Rochelle’s home.
At 3:00 a.m. on February 18, 2010, search warrants were simultaneously served on appellant and Rochelle. At 3:14 a.m., during the search of Rochelle’s home, Detective Wendy Contrares observed a text message from appellant coming in on Rochelle’s cell phone. The message read, “Cops are here.” At Rochelle’s home, police seized the guns and ammunition that Rochelle had taken from appellant’s. The items were found in her closet. On March 9, 2010, Rochelle pleaded guilty to a misdemeanor charge of being an accessory after the fact to appellant’s offense of possession of the firearms.
The items seized from Rochelle’s home included a.22-caliber Erma Werke rifle, a.25-caliber Colt semiautomatic pistol with a magazine loaded with six cartridges, a Terni 6.5-millimeter Carcano bolt-action rifle, a Plainfield M1.30-caliber rifle, and a Winchester.30-caliber rifle model 94. All of the guns were test-fired and found to be operable. The ammunition seized from Rochelle’s home included a 10-round magazine of.30-caliber bullets, a 30-round magazine of.30-caliber bullets, a magazine for the.22-rifle, a clip for the 6.5-millimeter rifle, eleven 6.5-millimeter cartridges for the rifle, a magazine containing twenty-seven.30-caliber cartridges, and some.22-caliber cartridges.
In appellant’s home, police found a double-barrel shotgun at the top of the stairs. It was determined to be operable. In appellant’s garage, the police found three partially full boxes of ammunition, including two boxes of 6.5-millimeter Carcano rifle shells, and one box of 30/30 Winchester ammunition. None of the guns seized by the police were registered.
DISCUSSION
I. Exclusion of Evidence
A. Proceedings Below
On cross-examination of Rochelle, appellant, who acted as his own attorney, asked her how long she had known him. Rochelle replied, “Five years.” Appellant then asked Rochelle if, in those five years, she had ever seen him with a gun. Rochelle replied, “Never. Not once.” The prosecutor objected on the basis of relevance, and the trial court sustained the objection. The trial court struck Rochelle’s response at the prosecution’s request. Appellant stated, “It’s irrelevant that I’ve never—” The trial court replied, “Don’t argue. Sustained. The court’s ruling stand[s].”
B. Appellant’s Argument
Appellant contends the trial court erred in striking Rochelle’s response, since the evidence was relevant and exculpatory, and it undermined the prosecution’s case. Appellant argues that the striking of the testimony deprived him of his due process right to present a defense, and the error was not harmless beyond a reasonable doubt. The evidence of possession was weak, and the jury’s query regarding definition of the term “possession” shows that it was a close case.
C. Relevant Authority
We review a trial court’s ruling on the admissibility of evidence questions for an abuse of discretion. (People v. Hoyos (2007) 41 Cal.4th 872, 898; People v. Smithey (1999) 20 Cal.4th 936, 973.) A trial court’s ruling will not be disturbed unless it exercised discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.) “Relevant evidence is defined as ‘evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Evid. Code, § 210.)” (People v. Mills (2010) 48 Cal.4th 158, 193.) The trial court has wide discretion in determining the relevance of evidence, but no discretion to admit irrelevant evidence. (Evid. Code, § 350; People v. Scheid (1997) 16 Cal.4th 1, 14.)
D. No Abuse of Discretion or Constitutional Error
We believe the trial court properly excluded Rochelle’s testimony that she had never seen appellant with a gun. Rochelle’s statement that she had never seen appellant with a gun was not relevant to the issue of whether he kept guns in his house, i.e., whether he possessed guns. As the jury was instructed, the People had to prove in count 1 that appellant “owned, purchased, received or possessed a firearm”; that he knew he owned, purchased, received, or possessed a firearm; and that he had previously been convicted of a felony. (CALCRIM No. 2510.) Whether Rochelle had ever seen appellant with any of the guns that were the basis for the charge had no tendency to disprove any disputed fact that was of consequence to the case.
The cases appellant cites, People v. Kennedy (2005) 36 Cal.4th 595, 619 (Kennedy), and United States v. Garcia (9th Cir. 2005) 401 F.3d 1008, 1010-1012 (Garcia), are not on point. Appellant claims that these cases show that other courts have recognized that evidence of a defendant not being seen with a gun in the past was relevant to the issue of whether the defendant possessed guns at the time of the offense. Kennedy was convicted of murder and robbery with use of a firearm in both crimes. (Kennedy, supra, at p. 602.) In closing argument, the prosecutor mentioned Kennedy’s tattoo depicting a gun, and Kennedy argued that this was prosecutorial misconduct. (Id. at p. 619.) The defense in that case had been able to elicit from a witness that he had never seen Kennedy with a gun. The Kennedy court stated that, since that testimony gave rise to the inference the defendant did not use and was not around guns, the existence of a gun tattoo was a proper subject of closing argument because of its impeachment value. (Ibid.) The fact that the Kennedy court concluded that the prosecutor, in closing argument, could properly attempt to refute any adverse inference from a witness’s comment (to which the prosecutor had failed to object on relevance grounds) does not constitute a holding that supports appellant’s claim of error in the instant case.
Garcia is a nonbinding intermediate federal appellate court ruling. (People v. Bradley (1969) 1 Cal.3d 80, 86.) In any event, it does not aid appellant’s cause. Garcia addressed the denial of a motion to withdraw a guilty plea to drug and weapons charges on the basis of a declaration by a newly discovered witness. (Garcia, supra, 401 F.3d at pp. 1009, 1010.) The denial of Garcia’s motion was reversed, but not based solely on a mere statement that the witness had never seen the firearms in Garcia’s possession, as appellant suggests. The witness stated that Garcia had never lived at the house where the drugs and guns were found, that two other persons had lived in the room where the firearms were seized, and that she recognized two of the three seized firearms as belonging to the husband of the woman (Garcia’s landlady) who had accused Garcia of being involved with guns and drugs. (Id. at pp. 1009, 1010) Moreover, there was no issue of relevance in Garcia—the court merely decided that the newly discovered evidence was sufficient to justify the withdrawal of the plea under the “‘fair and just reason’” standard. (Id. at p. 1012.)
Not only did the trial court here not act in an arbitrary or capricious manner so as to engender a miscarriage of justice, any error in striking Rochelle’s statement was harmless under any standard. The jury heard Rochelle’s statement to police, in which she stated there were four to five guns in appellant’s house, and they belonged to “Senior.” She said they were “Eli’s.” Later on she said they belonged to “Mr.... yea... Mr. Eli.” She then said they were “Junior’s.” When the detective told her she had said they were Senior’s before, she stated she “just said his name because I was just upset. So what.” She then said, “They belong to them. They’re a unit. I’m sorry.” She repeated that they belonged to both Junior and Senior. She said she brought the guns to her house because she felt bad for them. She got them from Junior’s room, but “They belong to both of them.” Rochelle admitted that she knew the guns were there, therefore, she did not have to see appellant holding a gun in his hand for the jury to reach a guilty verdict. She said her relationship with appellant had been “off and on” since she met him five years earlier, which would explain why she might never have seen appellant holding a gun. Moreover, even if appellant only rarely handled the guns he kept in his home, a guilty verdict was still called for.
The fact that there may have been one or more jurors who needed further explanation of the word “possess” does not signify that this was a close case. Appellant argued to the jury that, since he was arrested on February 1, and he bailed out on February 4 or 5, legally he had no firearms in his possession during these days. And since the guns were at Rochelle’s and he did not go there, legally he was not in possession of any firearms from the 1st to the 18th as the information charged. He argued that the shotgun still in his house was in a common area and the prosecution had not proved he knew it was there. Appellant told the jury it was a “really, really close question with this possession thing.” The prosecutor told the jury that the term possession had a legal definition that was “different and broader than you might have thought about than your normal every day use of that term.” Given these messages during argument, some of the jurors may have been confused. After receiving the query, the trial court instructed the jury on actual and constructive possession from CALJIC No. 12.43, which it found more informative than any CALCRIM instruction. The prosecutor and appellant agreed to the instruction.
We believe that appellant suffered no prejudice, and any error in excluding the evidence was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18 (Chapman) [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability the error did not affect the outcome].) His federal constitutional claims therefore also fail. As a general matter, the application by the trial court of the ordinary rules of evidence does not impermissibly infringe on the accused’s right to present a defense. (People v. Marks (2003) 31 Cal.4th 197, 226-227; People v. Lawley (2002) 27 Cal.4th 102, 154-155.) There was no abuse of discretion or violation of appellant’s constitutional rights to present a defense or due process.
II. Jury Instruction on Reasonable Doubt
A. Appellant’s Argument
Appellant contends the jury instructions were inadequate in that they did not inform the jury it must find that the prosecution proved each element of the offenses beyond a reasonable doubt. This constituted structural error, which requires reversal. Even assuming the error was subject to harmless-error analysis, it was not harmless beyond a reasonable doubt under Chapman.
B. Proceedings Below
In relation to the prosecution’s burden of proof, the trial court instructed the jury with CALCRIM No. 220 on reasonable doubt. The trial court also read CALCRIM Nos. 2510 on the elements of possession of a firearm in violation of section 12021, subd. (a)(1), and 2591 on the elements of possession of ammunition in violation of section 12316, subd. (b)(1).
CALCRIM No. 220 was read as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant because he has been arrested, charged with a crime or brought on trial. A defendant in a criminal trial is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
CALCRIM No. 2510 was read in pertinent part as follows: “The defendant is charged in Count 1 with unlawfully possessing a firearm in violation of Penal Code section 12021(a)(1). To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant owned, purchased, received, or possessed a firearm. Two, the defendant knew that he owned, purchased, received or possessed the firearm. And three, the defendant had previously been convicted of a felony.... Two or more people may possess something at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it either personally or through another person.”
CALCRIM No. 2591 was read in pertinent part as follows: “The defendant is charged in Count 2 with unlawfully possessing ammunition in violation of Penal Code section 12316 (b)(1). To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant owned, possessed or had under his custody or control, ammunition. Two, the defendant knew he owned, possessed or had under his custody or control, the ammunition. And three, the defendant had previously been convicted [of] a felony.... Two or more people may possess something at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it either personally or through another person.”
C. Relevant Authority
Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5; People v. Osband (1996) 13 Cal.4th 622, 678-679; § 1096.) Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions, viewed in their entirety. (Victor v. Nebraska, supra, 511 U.S. at p. 5; see People v. Chavez (1985) 39 Cal.3d 823, 830-831.) “We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘“In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v.Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).)
D. No Error or Constitutional Violation
We believe there was no instructional error. In giving CALCRIM No. 220, the trial court told the jury: “Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt.” The jury also received jury instructions on the two charged offenses that defined the elements that had to be proved. Each instruction states, “To prove that the defendant is guilty of this crime, the People must prove that...” followed by a list of the separate elements of the offense. Thus, CALCRIM No. 220, viewed in context, correctly informed the jury regarding the prosecution’s burden to prove each and every element of the charged offenses beyond a reasonable doubt.
In Ramos, the defendant made the identical claim as appellant. (Ramos, supra, 163 Cal.App.4th at p. 1087.) The Ramos court observed that we must assume jurors are intelligent persons capable of understanding and correlating all jury instructions, and the portion of CALCRIM NO. 220 stating “‘[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, ’” combined with the instructions enumerating the elements of the charged crimes, leads to the conclusion that the instructions as a whole adequately informed the jury that the prosecution had to prove each element beyond a reasonable doubt. (Ramos, at pp. 1088-1089; see also People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601 [CALCRIM No. 220 along with instructions on individual crimes correctly informed the jury that the prosecutor was obliged to prove each element of the crimes beyond a reasonable doubt].) The Ramos court noted that the defendant (like appellant) cited numerous out-of-state authorities that use “each element” or “every element” language in their jury instructions on reasonable doubt. The court did not doubt the appropriateness of the language but observed that defendant (like appellant) did not cite any California or United States Supreme Court authority holding that such language is constitutionally required. (Ramos, supra, at p. 1090.)
Moreover, in the instant case, in closing argument, the prosecutor told the jury: “There are essentially three elements to each of the two crimes in this case. There are three things that have to be proven with respect to count 1 and count 2.” The prosecutor went on to list the elements. The prosecutor then repeated, “To prove that the defendant is guilty of the crime charged in count 1, I have to prove to you three things.” The prosecutor enumerated the three things and set out the evidence to prove each element. He repeated the process with count 2. The defense also talked about the “elements of proof.” Appellant focused on the element of knowledge, but also discussed possession extensively.
Appellant’s reliance on People v. Vann (1974) 12 Cal.3d 220 and People v. Mayo (2006) 140 Cal.App.4th 535 is misplaced. In those cases, unlike the instant case, the trial courts failed to instruct the jury with CALJIC 2.90 on reasonable doubt. (Vann, at pp. 225-226; Mayo, at p. 541.) Moreover, in Mayo, despite this error, the court held that other instructions required the jury to convict the defendant only if the People proved beyond a reasonable doubt each of the elements of the crime, or to convict of lesser charges if the jury had a reasonable doubt as to the greater charge. (Mayo, supra, at p. 545.)
We conclude that the jury was properly instructed with CALCRIM No. 220 and other proper instructions, and that no more was constitutionally required.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.