Opinion
G056738
10-07-2019
THE PEOPLE, Plaintiff and Respondent, v. MIKE ESCOBAR, Defendant and Appellant.
Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF2608) OPINION Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Mike Escobar was convicted of, among other things, carrying a loaded firearm in a vehicle while on a public street. During deliberations, in response to the jury's request for a legal definition of the word "carry," the trial court advised the jury that any word that was not defined by the jury instructions should be given its ordinary, everyday meaning. Defendant argues that the word "carry" is ambiguous, and that the court erred by failing to define the word "carry" for the jury. We disagree. There was no ambiguity in the meaning of the word "carry," given its ordinary meaning in the context of carrying a firearm in a vehicle. Even if the trial court had erred, the error was not prejudicial. Under defendant's preferred definition of the term "carry," the evidence established that defendant had carried the loaded firearm in a vehicle. It is not reasonably probable that the use of defendant's preferred definition would have resulted in a more favorable outcome for him.
Defendant also argues the trial court erred by refusing to strike his prior strike conviction for purposes of sentencing. We conclude the trial court properly exercised its discretion.
We therefore affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On November 5, 2016, Officer Nathaniel Cox of the Garden Grove Police Department stopped a white sedan for having paper license plates and dark tinted driver and passenger windows. Defendant was the driver and the only occupant of the car. Cox asked defendant to step out of the car and whether he had anything illegal on him. Defendant answered that he had heroin in his pocket. After handcuffing defendant, Cox recovered a small amount of a tan-colored, rock-like substance from defendant's right front pants pocket.
Cox placed defendant in the back seat of his patrol vehicle. In searching defendant's car, Cox found a holstered semiautomatic pistol under the front passenger's seat. Cox testified the gun was "easily accessible" from where defendant would have been sitting in the driver's seat. It was about two and a half feet from the driver's seat and could be reached "[b]y simply leaning over the center console"; nothing was blocking access to the gun. The gun was loaded. A search of the gun's serial number showed it was not registered.
The stop of defendant's vehicle had occurred near his home. During the stop several individuals claiming to be defendant's family members approached both Cox and defendant. The patrol vehicle's dashboard camera system recorded defendant telling a man, who identified himself as defendant's brother, that the police "found the gun."
The substance in defendant's pocket was analyzed by the Orange County crime laboratory and found to be a useable quantity of fentanyl, a controlled substance. Scientists in the laboratory were unable to identify any fingerprints on the gun or the holster. DNA samples from the gun's grip, slide, trigger, and magazine, as well as the holster, indicated four or five different people had handled the gun, and no individual contributor could be identified.
The parties stipulated that defendant had been convicted of a felony before November 5, 2016.
A jury found defendant guilty of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1))(count 1); possession of ammunition by a prohibited person (§ 30305, subd. (a)(1))(count 2); being a felon carrying a loaded firearm in public (§ 25850, subds. (a), (c)(1))(count 3); and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a))(count 4). In a bifurcated proceeding, the court found true the sentencing enhancement allegations that defendant had suffered two prior serious and violent felony strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and had served one prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise noted.
At sentencing, the trial court imposed a four-year term: the midterm of two years on count 1, doubled due to the strike priors, and six months on count 4 to be served concurrently. The court imposed and stayed sentence on counts 2 and 3, pursuant to section 654. The court struck the prison prior for purposes of sentencing.
DISCUSSION
I.
RESPONSE TO JURY'S QUESTION
Section 25850, subdivision (a), with which defendant was charged in count 3, provides: "A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a 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." As to that count, the court instructed the jury with CALCRIM No. 2530, as follows: "The defendant is charged in count 3 with unlawfully carrying a loaded firearm in a vehicle, in violation of Penal Code section 25850 . . . . To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant carried a loaded firearm in a vehicle; two, the defendant knew that he was carrying a firearm; and, three at the time, the defendant was in a public place or on a public street."
During deliberations, the jury sent a note to the court stating in relevant part: "We, the jury in the above entitled action request the following: - Definition of law for the term 'carried' in regards to the third charge." The court provided the following written reply: "Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings."
The jury also asked for the "definition of the legal requirements for knowledge" and received the same answer from the court. Defendant does not challenge the court's response to this portion of the jury's question on appeal. --------
"An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury." (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) "If a supplemental instruction is given, however, its correctness presents a question of law that we review de novo." (People v. Franklin (2018) 21 Cal.App.5th 881, 887, fn. 4.)
"[S]ection 1138 imposes on the trial court a mandatory 'duty to clear up any instructional confusion expressed by the jury.'" (People v. Lua (2017) 10 Cal.App.5th 1004, 1016; see People v. Smithey (1999) 20 Cal.4th 936, 985 [court has a "duty to provide the jury with information the jury desires on points of law"].) If "the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) In an appropriate case, the court may be able to satisfy its duty by advising the jury to reread the instructions previously given. (Ibid.)
Defendant argues that the trial court erred by failing to further define the word "carry" for the jury, and instead simply advising the jury that any undefined terms should be given their everyday, ordinary meanings. Defendant contends the word "carry" is ambiguous, as it can mean "to take or support from one place to another; convey; transport" or "to wear, hold, or have around one." Defendant further contends that when used in connection with a firearm, carry means "holding or bearing arms" (People v. Overturf (1976) 64 Cal.App.3d Supp. 1, 6), or "'being armed and ready for offensive or defensive action in a case of conflict with another person'" (District of Columbia v. Heller (2008) 554 U.S. 570, 584).
We conclude the use of the word "carry" in section 25850 and CALCRIM No. 2530 is not ambiguous and the failure to provide clarification or further instruction to the jury was not error. (See People v. Wade (2016) 63 Cal.4th 137, 139 [defendant violates § 25850, subd. (a), carrying loaded firearm, by wearing backpack that contains a loaded gun]; People v. Gant (1968) 264 Cal.App.2d 420, 424-425 [gun "concealed under the dash to the right of the glove compartment" was "readily accessible" to the car's driver for purpose of criminal liability under former § 12025, carrying a concealed firearm]; People v. Dunn (1976) 61 Cal.App.3d Supp. 12, 13-14 [person who has a gun in a locked suitcase "carries concealed [firearm] upon his person" in violation of former § 12025].) In this case, defendant was accused of carrying a loaded firearm in a vehicle. In this context, "carry" does not mean holding a firearm. Indeed, it must have a meaning other than holding or there would be no difference between carrying a firearm "on the person or in a vehicle." (§ 25850, subd. (a), italics added.) The ordinary, everyday meaning must be that the firearm is readily accessible for the defendant's use.
Even if the trial court erred by failing to further define the word "carry" for the jury, we would conclude the error was harmless. An error resulting from a court's failure to adequately answer a jury's question during deliberation is subject to the People v. Watson (1956) 46 Cal.2d 818, 836 prejudice standard. (People v. Roberts (1992) 2 Cal.4th 271, 326.) Thus, defendant must establish a reasonable probability that he would have obtained a more favorable outcome in the absence of the error. Defendant cannot do so.
Defendant suggests that the jury should have been instructed that "to 'carry' means 'to hold the firearm or have it at hand readily available for use.'" If the trial court had provided this proposed instruction as an answer to the jury's question, the outcome would have been the same. Cox testified the gun was under the front passenger seat and "easily accessible" from the driver's seat. The gun was near the front of the seat, and could be reached by the driver "simply" leaning over the center console; nothing was blocking his access to the gun. Defendant acknowledged knowing the gun was there when he told his brother the police "found the gun." Given these facts, the gun was "at hand readily available for use."
Defendant points to Cox's testimony that he did not see the gun when he searched the driver's side of the car or when he opened the passenger side door. The test suggested by defendant is not that the gun was readily observable, but that it was readily accessible. The gun could be hidden from public view, yet still accessible to defendant.
II.
DENIAL OF MOTION TO STRIKE THE PRIOR STRIKES
Defendant also challenges the trial court's refusal to strike his prior strike convictions, resulting in the doubling of defendant's midterm sentence on count 1. (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) A trial court's refusal to strike or dismiss a sentencing enhancement under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) In exercising its discretion, the court must consider both the defendant's constitutional rights and the interests of society. (Romero, supra, at p. 530.)
In denying the motion to strike, the trial court stated on the record: "Considering the factors of Romero, . . . I have to consider the fact that his strike prior was not remote in time, because he was in prison for some time. Out for less than two years when he is on parole still and found with a firearm. So, I think that is a risk for danger to the public, and the Romero motion is denied." Additionally, as the prosecution pointed out at the sentencing hearing immediately before the court ruled, defendant's prior strikes were for firearm charges—assault with a firearm and criminal street gang terrorism—and there was no evidence the gun belonged to anyone other than defendant.
Defendant contends on appeal that the trial court limited its review under Romero "to an assessment of potential public safety risk based on the amount of time [defendant] had been out of prison." Defendant argues that because the trial court is required to conduct "a thoughtful and conscientious assessment of all relevant factors" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979), it abused its discretion by considering only the facts of defendant's prior strike convictions. We reject defendant's contention. The trial court specifically stated it had considered the Romero factors. That it focused on one factor in explaining its ruling on the record, and did not identify every factor that it had considered in reaching its decision not to strike the prior strikes, does not constitute an abuse of discretion. Further, in imposing the midterm sentence on count 1, the court noted it found no mitigating factors and four aggravating factors, evidencing the court was aware of and had considered factors other than the facts of defendant's prior strike convictions.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.