Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F07906946 Rosendo Pena, Jr., and James R. Oppliger, Judges.
Judge Pena heard defendant’s suppression motion; Judge Oppliger was the trial and sentencing judge.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P.J.
Defendant Elias Gorostiza was the driver of a car, owned by one of the passengers, that was stopped by the police. After consent was given by the owner of the car to search the car, the police found a loaded pistol-grip shotgun and a cell phone. When the cell phone was opened, the officer saw an image of defendant holding a pistol-grip shotgun. The officer searched data inside of the cell phone and found two more images of defendant holding the gun. Defendant was convicted of possession of a firearm by a felon, unlawful possession of ammunition, and evading a law enforcement officer. He appeals, raising numerous issues regarding the images obtained from the cell phone found in the car and one sentencing issue. Except to modify the sentence, we affirm.
FACTS
Fresno police officer Jeremy Preis was on duty on September 3, 2007, when he saw a car driving down the road with a flat tire, a cracked windshield, and the bright lights on. Preis put on his lights to initiate a stop of the car. The car pulled over to the opposite side of the road. Preis shined his spotlight into the car. The car was driven by defendant; the front passenger and owner of the car was Stacey Mendoza; the rear passenger was Jaime Haro. Defendant and Haro were moving around and looking back. Haro was sitting in the middle of the back seat closer to the driver’s side of the car.
As Preis opened the door to his car, defendant drove away. Preis pursued the car, which finally came to a stop. Haro stepped out of the rear door on the driver’s side of the car and ran. Because Preis was alone, he did not pursue Haro. Preis got out of his car and approached defendant, who was behind the wheel. Defendant tried to start the car again, but the car was in poor operating condition and would not start.
Other officers arrived to assist Preis. Defendant and Mendoza were detained and handcuffed. The car was searched. A fan box was found in the back seat. Inside the box, officers found a loaded pistol-grip 12-gauge shotgun wrapped inside of a blanket. Preis found two cell phones in the car. The red cell phone was dead. The black cell phone, found in the driver’s area of the front seat, was operable.
Preis flipped open the black cell phone and immediately saw a picture of a person who looked “very close to the person driving the vehicle holding that same shotgun.” After seeing the initial picture, Preis further investigated the contents. He went to the menu of the cell phone and opened the “My Albums” section of the telephone. Inside the album he found three images. The first image was the same as the image he saw when he opened the phone; the other two images were of an individual who looked like defendant, holding the same gun. After the phone was found in the car, it rang and the screen identified the caller as “June Dog,” which turned out to be the street name for Haro.
Preis spoke to defendant and asked him if the black cell phone was his. He said it did not belong to him. Preis asked defendant the name of the person who ran from the car. Defendant replied that he did not know the person. Finally, defendant was asked why his picture was on the telephone if it did not belong to him. Defendant said that it was not a picture of him and he was being framed.
Mendoza gave officers information regarding where the passenger who ran from the car might live. The next day, Preis went to the address pointed out by Mendoza. A female at the apartment gave Preis consent to search the apartment and identified June Dog/Haro as a person who lived in the apartment. Preis located a fan that matched the fan box containing the shotgun that was found in the car. In addition, a shotgun shell, like the shotgun shells found in the gun, was found in the apartment.
Preis went to the last known residence of defendant and, after gaining consent from the current resident, looked at the bedroom. Preis had been to the residence previously on more than one occasion to conduct a parole search of defendant’s brother. He recognized the room depicted in the telephone images as the bedroom of this residence, formerly occupied by defendant. The room looked exactly the same as that depicted in the cell phone image except for different photographs on the wall. Preis recognized the room within minutes after he saw the first image on the telephone.
Investigator John Swenning opened the cell phone and found the same three images. He sent those images via a text message to investigator Sherry Hall’s e-mail address. Hall printed the pictures from the e-mail she received from Swenning. The first photograph (People’s exhibit 7) was dated September 2, 2007, at 2:17 p.m.; it was the picture that could be seen when the telephone was opened. Exhibits 9 and 10 were two other photographs of defendant holding the shotgun; they were also dated September 2, 2007, with respective times of 2:18 and 2:19 p.m. The cell phone and the photographs were admitted into evidence.
DISCUSSION
I. Suppression Motion
Defendant filed a motion to suppress the images in the cell phone, as well as the photographs retrieved and copied from the black cell phone. In his written motion, he claimed the search incident to arrest would not include a cell phone search because the cell phone is not a container and the cell phone is not part of his person. In addition, he argued that the contents of a cell phone deserve heightened protection.
The People filed opposition to the motion. First, it was argued that defendant failed to demonstrate he had a legitimate expectation of privacy in the telephone since he denied ownership of the telephone at the time of the traffic stop. Next, the People contended the consent given by Mendoza to search the vehicle encompassed the entire vehicle and its contents, including closed containers. In addition, the People argued that the officer was authorized to look in the cell phone case because it was a container and also authorized to search further because the initial image that was seen was plainly displayed when the telephone was opened without any further search. As the People’s last argument, they claimed the cell phone would have been inevitably discovered during an inventory search of the vehicle.
At the suppression motion, defendant was first required to prove that he had an expectation of privacy in the cell phone. Preis testified that he found a black cell phone in the car. He had been told by Mendoza that the telephone belonged to defendant.
The court found that the knowledge by the officer that the cell phone belonged to defendant was sufficient for establishing that defendant had a reasonable expectation of privacy in the telephone.
Preis was then called by the People to establish the legality of the search. He testified that, after he stopped the car, Mendoza told him that she was the owner of the car. Preis asked her for permission to search the vehicle and she gave her consent. In the back seat of the car, Preis found the fan box holding the shotgun. In the driver’s foot well, he found a cell phone with a leather case covering both sides. He did not know what it was, so he opened the case and pulled the cell phone away from the back cover. When he pulled the telephone away from the back cover, a screen was revealed. The screen displayed a picture of an individual who looked like defendant holding a pistol-grip shotgun. Other officers were shown the image on the cell phone and agreed the picture looked like defendant. Preis confronted defendant with the picture, and defendant said it was not he.
After Preis saw the initial image on the screen of the cell phone, he went through the operating system on the telephone to access more pictures. He did this at the scene of the car stop. Photographic copies were admitted into evidence.
Preis also discovered that defendant was driving on a suspended license. It is policy to tow vehicles driven by individuals with a suspended license. When a car is towed, an inventory search is performed.
Defendant argued that when Preis pulled the telephone away from the cover, an unlawful search occurred. It was further argued that even if the initial image was inadvertently seen by the officer, the two additional pictures should be suppressed because Preis searched through the operating system of the cell phone. Defendant also requested that the blown up photographs be suppressed.
The People argued the cell phone was in a container and the first picture was on the outside of the telephone and thus, clearly, the scope of the consent extended to any closed container. As to the two pictures within the cell phone’s operating system, the People admitted there is no binding case authority supporting their position, but analogized going inside of the telephone’s operating system as equivalent to searching a closed container.
The court found that the picture displayed on the screen of the cell phone was the result of a proper search of closed containers based on the consent of the owner of the car. It was noted by the trial court that the opening of the flap of the telephone was necessary because hidden contraband could have been contained within the area under the flap. As to the pictures found within the cell phone, the court stated that it did not believe that a heightened protection should be afforded to cell phones. The trial court denied the motion to suppress.
Defendant contends the trial court erred in denying his motion to suppress. First, he argues the scope of consent by Mendoza was exceeded by the search because the consent, while perhaps enough to allow Preis to open the case holding the cell phone, was not broad enough to allow Preis to remove it from its case, revealing the initial image, and was certainly not enough to allow Preis to search its electronic contents. Defendant likens the cell phone to a locked briefcase or the contents of a computer. He also claims a person has a greater expectation of privacy in a cell phone than he would in other closed containers. This is so, he asserts, because cell phones are repositories for private information.
“On appeal from the denial of a motion to suppress [citation], our standard of review is settled. We defer to the trial court’s express or implied factual findings if supported by substantial evidence, but independently apply constitutional principles to the trial court’s factual findings in determining the legality of the search. [Citations.] Appellate review ‘is confined to the correctness or incorrectness of the trial court’s ruling, not the reasons for its ruling.’” (People v. Baker (2008) 164 Cal.App.4th 1152, 1156.)
Under the Fourth Amendment an individual is guaranteed the “right... to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” (U.S. Const., 4th Amend.) “Under the Fourth Amendment, a warrantless search is unreasonable per se unless it falls within one of the ‘specifically established and well-delineated exceptions.’” (People v. Baker, supra, 164 Cal.App.4th at pp. 1156-1157.)
One of the exceptions to the warrant requirement is where the officer has obtained legally adequate consent. “A consensual search may not legally exceed the scope of the consent supporting it. [Citation.] Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. [Citation.]” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.)
A general unlimited voluntary consent to search an automobile authorizes a search of containers found within the automobile. (People v. Williams (1980) 114 Cal.App.3d 67, 73-74.) “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the [consenting individual].” (Florida v. Jimeno (1991) 500 U.S. 248, 251.)
“‘“[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”’” (People v. Baker, supra, 164 Cal.App.4th at pp. 1158-1159.)
Defendant contends the trial court’s point that contraband could have been concealed in the interior of the cell phone case is not relevant to an analysis of what could have been objectively understood to be the scope of consent given by Mendoza. We disagree.
Preis initially pulled the car over for Vehicle Code violations. The vehicle fled, reasonably giving rise to a suspicion that there was contraband in it. Under these circumstances, it was reasonable for the officer to ask for general consent to search the vehicle. The People presented evidence that Mendoza consented to a search of her car. There was no evidence that she limited her consent in any manner. As noted by the trial court, “the scope of the consent that was given here would certainly cover the officer’s opening of the flap which could easily have contained hidden contraband, narcotics within it. It could have contained perhaps even a small weapon such as a razor blade.” The discovery of the first image on the cell phone was within the scope of the consent.
We have viewed the photographs retrieved from the cell phone. The first picture viewed when Preis merely opened the telephone shows defendant holding the gun. The two pictures retrieved from the further search of the contents of the telephone are the same except for a change in position of defendant and the gun. The two pictures retrieved from the further search of the telephone are cumulative to the first picture; their admission into evidence added nothing to the People’s case and did not prejudice defendant. Because the admission of the additional photographs seized during the further search of the cell phone was not prejudicial, we need not determine additional questions raised by the defendant in his argument. For example, we need not determine if the consent extended to a search of the electronic contents of the telephone, we need not determine if cell phones are subject to heightened privacy interests, and we need not determine if Preis’s knowledge that the telephone belonged to defendant should have curtailed his search of the interior of the cell phone. On this last point, Preis testified that he saw the initial picture “when I was checking it out right when I found it.” Thus, the evidence is clear that Preis did not know there was a cell phone in the car until he found it, and he would not have had an opportunity to gather information from Mendoza regarding the ownership of the telephone until after he had viewed the initial picture.
Defendant’s last argument dealing with consent is that the downloading and printing of the pictures was a further search unauthorized by the initial consent. As we will discuss later, having lawfully found the first image, the People had the right to preserve the evidence on the cell phone. The question is whether the printed representation of the image found on a digital medium is an accurate representation of the image.
Because we have found the first image retrieved from the cell phone was properly discovered based on consent, we need not determine defendant’s final argument that the contents of the cell phone would not have been inevitably discovered by an inventory tow search.
The search was reasonable under the Fourth Amendment.
II. Foundation for Admission of the Photographs
Defendant asserts the trial court abused its discretion in admitting the photographs without a proper foundation. He contends the trial court did not properly determine if the contents of the photographs accurately depicted the scene they purported to represent.
“The general rule is that photographs are admissible when it is shown that they are correct reproductions of what they purport to show. This is usually shown by the testimony of the one who took the picture. However, this is not necessary and it is well settled that the showing may be made by the testimony of anyone who knows that the picture correctly depicts what it purports to represent.
“The essential element is that it be shown in some way that the picture does correctly depict what it purports to show, in other words that it be verified or authenticated as a genuine picture of what it purports to depict. This being the purpose it is not required that the photographer himself be produced where other evidence is available to accomplish the same end. The effect and probative value of such other evidence is the important consideration, and not that the way or manner of making the requisite showing should be exactly the same in all cases.
“There is no reason why the essential element should not be shown in a particular case by other evidence which varies somewhat from the usual pattern, provided it is sufficient to give an equally satisfactory result. There is no reason why it should not be shown by the testimony of witnesses, assisted by other matters, including those which are an inherent part of the picture itself, aside from the relative matter which it purports to depict, provided these other or inherent matters reliably appear and provided that they, with the testimony, sufficiently disclose the authenticity and genuineness of the photograph.” (People v. Doggett (1948) 83 Cal.App.2d 405, 409-410.)
Defendant objected, based on a lack of foundation, to the admission of the photographs from the telephone. He objected that a proper foundation had not been laid to show that the photographs accurately depicted the scene they purported to represent. The court preliminarily ruled that there was a proper foundation for the admission of the photographs. The court relied on several factors, including that defendant is identified as the person in the picture and the weapon in the picture is the seized weapon. The stored data has a date imprint of September 2, the day before the car stop. Also, the cell phone was taken from the vehicle that defendant was in at the time of the seizure. The court stated that further foundation was expected from testimony that the room depicted in the image is one associated with this defendant. The court found sufficient foundation to admit the photographs.
There was sufficient foundation to admit the photographs. The black cell phone was found near the driver’s seat in the car driven by defendant. It displayed the image of an individual who looked like defendant. The location of defendant’s tattoos matched the location of the tattoos in the pictures. The gun in the picture matched the gun found in the car, including the distinctive strap on the gun. The picture depicts a location identified as defendant’s last known address. The data had a date imprint of the day before the car stop. All of these factors point to the authenticity and genuineness of the photographs. The trial court did not err in finding there was a sufficient foundation to admit the photographs.
Although we refer to the photographs collectively, pursuant to our analysis in issue I, only the first photograph is relevant to our discussion.
In making its ruling on the admissibility of the photographs, the trial court also noted that the photographs sought to be admitted were made directly from stored digital data and properly captured from a cell phone. Evidence Code section 1553 governs the admission of a printed representation of images stored on a digital medium. It provides: “A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent.”
Defendant also contends the trial court erroneously utilized Evidence Code section 1553 as the basis for admission of the photographs to the exclusion of defendant’s primary objection that the contents of the photograph were not authenticated. While the trial court did not clearly delineate its discussion into two separate parts regarding the authenticity of the images and the accuracy of the printed images stored on the digital medium in the form of the cell phone, the court’s finding of a proper foundation adequately covered both areas. Our previous discussion demonstrates that a proper foundation was made regarding the authenticity and genuineness of the images on the cell phone.
Furthermore, a proper foundation was made for the admissibility of the photographs which reproduced the digital images. Defendant argues that the presumption of accuracy contained in Evidence Code section 1553 was overcome because he presented evidence showing that the printed representations were inaccurate or unreliable. The evidence defendant relies on are his statements to Preis that he was not the person depicted in the photograph and that he was being framed.
We fail to see how this evidence challenges the accuracy of the images; nor does it have any evidentiary value sufficient to rebut the presumption of accuracy. Even if this evidence could be construed as attacking the images on the cell phone, it does not challenge the accuracy of the printed representation of the images stored there. Defendant did not present any evidence that the printed representations were not accurate reproductions of the pictures stored in the digital medium of the cell phone. The trial court properly found that the printed photographs were an accurate representation of the images they purported to represent.
III. Pinpoint Instruction
Defendant requested that the following pinpoint instruction be read to the jury: “The jury may only consider a photograph to be genuine after testimony verifies that the finished picture is a faithful representation of the things shown and their relative position at the time the picture was taken.”
Defendant requested the instruction to alert the jurors that they should not consider as evidence the contents of the photograph unless they are convinced the objects in the picture are genuine.
The court’s tentative ruling was to reject the instruction. The court found that the proffered instruction was “a correct statement of the law as to the foundational fact for the admission of a photo which is a function of the court.” The court stated that it does not normally instruct the jury as to foundational rulings that the court makes. The court stated it would be willing to hear from each party regarding the giving of the instruction. Defendant submitted the matter without further argument, and the court held that its tentative ruling would stand.
Defendant argues the trial court erroneously denied his request for a pinpoint instruction directing the jury to consider the photographs only if it found that a proper foundation was established. Relying on Evidence Code section 403, subdivision (c)(1), defendant contends that when requested to do so the trial court is obligated to instruct the jury to determine whether the preliminary fact exists and to disregard the evidence unless the jury finds that the preliminary fact does exist.
A preliminary fact that must be shown before a writing is admitted into evidence is the authenticity of the writing. (Evid. Code, § 403, subd. (a)(3).) A “writing,” as defined by Evidence Code section 250, “means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof….” (Emphasis added.)
If the court admits evidence after determining the preliminary fact, the court “may, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.” (Evid. Code, § 403, subd. (c)(1).)
“[T]he correct standard of proof for a preliminary fact under Evidence Code section 403 is evidence sufficient to support a finding by a preponderance of the evidence. [Citations.] In other words that there be sufficient evidence to enable a reasonable jury to conclude that it is more probable that the fact exists than that it does not. [Citations.]” (People v. Herrera (2000) 83 Cal.App.4th 46, 61.)
While the instruction offered by defendant was correct to the extent that the jury should not consider the photograph to be genuine without testimony that shows it is authentic, the instruction did not explain the legal burden of proof the jury was to apply in determining the authenticity of the photograph and thus the instruction was incomplete. “In no context is a defendant entitled to an argumentative instruction that simply highlights particular evidence without further elucidating the relevant legal standards.” (People v. Yeoman (2003) 31 Cal.4th 93, 154.)
When the trial court asked for further comments regarding its tentative ruling that it was not going to give the instruction, defendant did not offer any further comments. Defendant did not point the court to the authority of Evidence Code section 403, nor did defendant offer to expand the instruction to include the correct legal standard. It could be that defendant did not offer Evidence Code section 403 to dispute the court’s refusal to give the instruction because defendant did not want a full instruction that directed the jury that it need only find authenticity based on a preponderance of the evidence. Because the instruction was lacking, the trial court did not err in refusing to give it.
Even if the trial court erred in refusing to give the instruction, any refusal was harmless. The challenge to the authenticity of the photographs was not a defense per se or a theory of the case, but an evidentiary issue regarding the weight of the evidence. A proper instruction would merely have informed the jury of the obvious: that if it found the photographs were not authentic it should disregard them. (See People v. Lewis (2001) 26 Cal.4th 334, 362.)
Error, if any, in failing to give the instruction was harmless.
IV. Admission of Photographs as Other-Crimes Evidence
While acknowledging that he did not object to the admission of the photographs on the theory they were inadmissible other-crimes evidence, defendant contends that the trial court violated his constitutional rights when it admitted irrelevant other-crimes evidence in the form of the photographs.
The simple answer to defendant’s contention is that he has forfeited this issue for purposes of appeal. “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless... [t]here appears of record an objection to or a motion to exclude or strike the evidence that was timely made and so stated as to make clear the specific ground of the objection.” (Evid. Code, § 353.)
“The objection requirement is necessary in criminal cases because a ‘contrary rule would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.”’ [Citation.] ‘The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.’ [Citation.]” (People v. Partida (2005) 37 Cal.4th 428, 434.)
Defendant claims his objection is cognizable on appeal because his actual objection at trial, based on relevance and prejudice, encompassed his due process right to a fair trial and thus his due process argument has been preserved. A defendant may not properly make a due process argument on appeal for reasons other than those articulated in his objection at trial. (People v. Partida, supra, 37 Cal.4th at p. 648.) The basis for defendant’s argument on appeal is that the admission of other-crimes evidence was prejudicial and erroneous. Since the basis of defendant’s argument on appeal is the improper admission of other-crimes evidence, he cannot bootstrap his due process argument onto an argument not properly raised below.
We disagree with defendant’s argument that the photographs from the previous day were not relevant to the question of whether he had knowledge of the gun’s presence when the car was stopped. The photographs were relevant to this question. Other-crimes evidence is admissible when relevant to prove a material fact at issue, such as knowledge. (Evid. Code, § 1101, subd. (b).)
V. Failure to Give a Limiting Instruction on Other-Crimes Evidence
Defendant argues the trial court erred in failing to sua sponte give a limiting instruction regarding other-crimes evidence. He contends the instruction was required because the evidence of his possession on a previous day based on the photographs was highly prejudicial, minimally relevant to a legitimate purpose, and was a dominant part of the prosecution’s case against him.
A trial court is not required to sua sponte give a limiting instruction on other-crimes evidence except in “an ‘extraordinary case’ in which the unprotested evidence was ‘both highly prejudicial and minimally relevant to any legitimate purpose,’ and was ‘a dominant part of the evidence against the accused.’” (People v. Farnam (2002) 28 Cal.4th 107, 163-164.)
While the evidence that defendant was photographed holding the gun the day before the gun was found in the car he was driving was prejudicial, it was more than minimally relevant to his knowledge that the same gun was in the car he was driving. While the photographs were part of the evidence, they were not a dominant part. The crucial part of the evidence against defendant was that he was driving a car; he attempted to elude Preis when Preis tried to initially pull the car over; and, when the car was pulled over, a loaded shotgun was within reach of defendant.
The trial court did not have a sua sponte duty to instruct on other-crimes evidence.
VI. Instructions on Expert Opinion
The trial court stated that it was going to give CALCRIM No. 332, the instruction on expert testimony. Defendant objected.
The jury was instructed regarding expert testimony as follows: “Witnesses were allowed to testify as experts and give opinions. You must consider the opinions but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide.
“In evaluating the believability of an expert witness follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training and education, the reasons the expert gave for any opinion and the facts or information in which the expert relied in reaching that opinion. You must decide whether the information on which an expert relied was true and accurate. You may disregard any opinion that you find to be unbelievable, unreasonable or unsupported by the evidence.
“Witnesses who were not testifying as experts gave their opinions during the trial. You may but are not required to accept these opinions as true and correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness’ opportunity to perceive the matters in which his or her opinion is based, the reason the witness gave for any opinion and the facts or information on which the witness relied in forming that opinion.
“You must decide whether the information on which the witness relied was true and accurate. You may disregard any or all -- excuse me, all or any part of an opinion you find to be unbelievable, unreasonable or unsupported by the evidence.”
It is claimed by defendant that the trial court erred in instructing the jury with the expert opinion instruction where there was not any expert testimony. He argues that this instruction enhanced the credibility of the prosecution witnesses who testified regarding the photographs.
“An expert witness... is one who has special knowledge, skill, experience, training, or education sufficient to qualify as an expert on the subject to which his or her testimony relates.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
Defendant’s argument fails. Preis testified that he had training with regard to firearms in the police academy, as well as experience with hunting since he was a child. He testified regarding the kind of gun found in the car, the caliber of the ammunition, that the gun was loaded, and that the sling on the gun was unusual. All of these things were properly subject to expert testimony.
The trial court did not err in giving the expert witness instruction.
VII. Unanimity Instruction
The People withdrew their request for a unanimity instruction, and the court did not give the instruction.
After the jury began deliberations, defense counsel placed on the record that he had requested a limiting instruction on the admission of the photographs that would instruct the jury that the photographs are limited to circumstantial evidence that defendant possessed the weapon on September 3 only (the day of the car stop) and could not be used as direct evidence of a crime committed on September 2 (the date associated with the telephone pictures).
The court stated its belief that the jury would not find the defendant guilty of possession of a weapon on September 2, based on the photographs.
The jury sent out a note asking for clarification of the charges and asking for a copy of the information. The court rejected defense counsel’s concern that the jury might utilize the photographs of September 2 as the basis of guilt, finding defendant possessed the firearm on September 2 as photographed.
The court brought the jury out and discussed their questions. The foreperson explained that their question had to do with the date. The court sent the jury back to the jury room and then agreed with defense counsel that there may be an issue regarding the date of the offense. After discussion, including whether to give a unanimity instruction or not, the court determined it would limit the jury’s consideration of when the crime occurred to September 3, 2007.
The jury returned to the courtroom and the court instructed them as follows: “You must not find the defendant guilty of count 1, that is the unlawful possession of a firearm unless you all agree that the People have proved specifically that the defendant committed that offense on September 3rd, 2007.”
Defendant now claims the trial court erred in failing to give the unanimity instruction. He argues that some jurors may have believed he possessed the gun as depicted in the photographs and disbelieved the date stamp, while others believed he possessed the gun in the car at the time of the arrest. He posits that the same holds true for count 2, the possession of ammunition.
Defendant’s argument is far-fetched. Based on the evidence and arguments of the parties, it is not plausible the jury would have found defendant guilty of possession of the gun and/or the ammunition based on the possession as depicted in the photographs and not on the possession that occurred on September 3, 2007, when the car was stopped. The court’s instructions to the jury during deliberations that the possession must only be based on the commission on September 3, 2007 could only be reasonably understood to mean the possession of the weapon and ammunition as found in the car.
VII. Failure to Stay the Possession of Ammunition Conviction
The court imposed the aggravated term of three years for count 1, the possession of the gun. The court imposed a concurrent midterm for the possession of the ammunition in count 2. Defendant contends, and respondent concedes, that his sentence in count 2 should be stayed because he was found guilty of possessing the same ammunition that was inside the shotgun. (People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
DISPOSITION
The two-year concurrent sentence for count 2, unlawful possession of ammunition, is ordered stayed pending finality of the judgment and service of sentence on counts 1 and 3, such stay to become permanent upon completion of sentence as to counts 1 and 3. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and send it to the appropriate authorities. As so modified, the judgment is affirmed.
WE CONCUR: CORNELL, J., GOMES, J.