Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VCF196691 of Tulare County. James W. Hollman, Judge.
Karen Anslinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
This is an appeal from a judgment of conviction following a jury trial. On appeal, defendant and appellant Juan Carlos Hernandez contends we should reverse his conviction on one of the two felony counts on which he was convicted. We find appellant’s arguments meritless and affirm the judgment.
Facts and Procedural History
On New Year’s Eve, 2007, a Tulare County Sheriff’s Department detective, driving an unmarked car, heard gunshots as he drove past defendant’s house. The detective parked around the corner, called for backup, and approached defendant’s house on foot. As he approached, he saw defendant fire a rifle into the air. When the detective identified himself, defendant and others ran into defendant’s open garage. The detective followed defendant into the garage, where he saw defendant attempting to hide the weapon. Two assault rifles and two handguns were discovered hidden in the garage. The detective identified one of the assault weapons as the gun he had seen defendant firing and attempting to hide.
Defendant was charged with count 1, discharge of a firearm with gross negligence (Pen. Code, § 246.3, subd. (a)) and count 2, possession of “an assault weapon, to wit, SKS ASSAULT RIFLE,” a violation of Penal Code section 12280, subdivision (b). (All further section references are to the Penal Code.) A jury found defendant guilty of both charges. After his motion for new trial was denied, defendant was placed on three years’ probation and imposition of sentence was stayed.
Count 1 is hand-corrected on the information to reflect a violation of Penal Code section 246.3, subdivision (a) instead of the subdivision (b) charge stated in the original information. The subdivision (b) error is carried throughout the record until the court amended the information during the sentencing process. Subdivision (b), involving grossly negligent discharge of a BB gun, is a misdemeanor, Count 1 is not involved in this appeal.
Discussion
Defendant asserts two arguments on appeal. First, he contends the trial court should have granted his motion for acquittal on count 2. (See § 1118.1.) Second, defendant contends the trial court erred by failing to “define” the term “assault weapon” in the jury instructions.
A. The Motion for Acquittal.
At the close of the prosecution evidence, defendant moved for acquittal. (§ 1118.1.) The trial court denied the motion. On appeal, defendant contends there was insufficient evidence presented by the prosecution to permit a jury reasonably to find that he had the mental state necessary for violation of section 12280.
In In re Jorge M. (2000) 23 Cal.4th 866, 887, the California Supreme Court held that conviction of violation of section 12280 requires proof that the defendant knew or should have known that the weapon defendant possessed had “the characteristics” that bring the weapon within the Roberti-Roos Assault Weapons Control Act of 1989, sections 12275-12290 (hereafter, the Act). Defendant concedes the evidence was sufficient to permit a reasonable jury to find that he knew or should have known the weapon in question was “banned” under section 12276, but not that it had “the characteristics” of an assault weapon necessary for violation of section 12280.
In his opening brief, defendant asserts that the evidence only permitted an inference that he had the weapon for less than a minute, and that there is no evidence from which one can conclude a person could have determined the gun was a prohibited assault weapon in that amount of time. Contrary to defendant’s claim, the prosecution’s evidence showed that defendant fired the weapon and, upon becoming aware of the presence of the detective, tried to hide the weapon in the corner of his garage. Viewed together, this evidence is sufficient to permit a conclusion that defendant owned the weapon and knew its operating characteristics. Such evidence is sufficient to establish, for purposes of a section 1118.1 motion, that defendant knew or should have known his rifle was an assault weapon. (See People v. Cole (2004) 33 Cal.4th 1158, 1212-1213 [standard of review for § 1118.1 motion].)
As reformulated in his reply brief, defendant’s argument is based on a fundamental misunderstanding of the Act. Section 12280, subdivision (b), makes is unlawful to possess “any assault weapon, except as provided in this chapter.” A gun can be an “assault weapon” through the application of two distinct provisions. Section 12276 states that “‘assault weapon’ shall mean the following designated semiautomatic firearms:” There are then listed rifles, pistols, and shotguns, identified by model. One of these designated in section 12276, subdivision (a)(11) is the “SKS with detachable magazine.” The prosecution evidence established that the gun defendant fired, possessed, and hid in the garage was an SKS with a detachable magazine.
In denying the new trial motion, the trial court impliedly concluded the gun was actually not an SKS but was, instead, an AK-47, which is a similar weapon. “All AK series” rifles are also designated assault weapons in section 12276, subdivision (a)(1). This discrepancy is not raised as an issue on appeal.
There is a second, and separate, way in which a gun can be an “assault weapon” under the Act. Section 12276.1 states that “‘assault weapon’ shall also mean any of the following:” The section then sets forth a listing of more generic characteristics a gun may possess. For example, section 12276.1, subdivision (a)(2), designates as an assault weapon any “semiautomatic, centerfire rifle that has a fixed magazine with the capacity to accept more than 10 rounds.”
Defendant’s contention on appeal posits, in effect, that the Supreme Court intended only the generic characteristics listed in section 12276.1 when it stated that conviction under section 12280 requires that the defendant knew or should have known “the characteristics of the weapon bringing it within” the Act. (See In re Jorge M., supra, 23 Cal.4th at p. 885.) Thus, in the present case, defendant would require that the evidence not only establish that the weapon was an SKS with a detachable magazine, but must also establish, for example, that the rifle was a semiautomatic, centerfire rifle and that the magazine held more than 10 rounds of ammunition.
The requirement suggested by defendant would make section 12276 wholly superfluous. There would be no point to statutorily designating “assault weapons” by model if the prosecution were to be required to prove the particular weapon in question had generic characteristics listed in section 12276.1 (which, in any event, was added to the Act 10 years after the original enactment of sections 12276 and 12280 [see Stats. 1999, ch. 129, § 7, adding § 12276.1]). More important, there is no indication in the Act that an assault weapon designated in section 12276 must necessarily have some generic characteristic listed in section 12276.1. Although most section 12276 assault weapons would have one or more section 12276.1 characteristics, a unique weapon without such characteristics would still be an assault weapon if so designated in section 12276.
The language of the Jorge M. opinion itself forecloses defendant’s argument. Thus, the opinion states: “In most instances the fact a firearm is of a make and model listed in section 12276 … can be expected to be sufficiently plain on examination of the weapon so that evidence of the markings, together with evidence the accused possessor had sufficient opportunity to examine the firearm, will satisfy a knew-or-should-have-known requirement.” (In re Jorge M., supra, 23 Cal.4th at p. 885.) It is plain there is no requirement that the prosecution establish generic characteristics that independently would make a listed weapon an assault weapon. The trial court did not err in denying defendant’s section 1118.1 motion.
B. The Jury Instructions.
Defendant contends the trial court improperly failed to instruct the jury “on the definition of ‘assault weapon’” in the Act. His theory is that the jury could not properly find that defendant “knew or should have known” he possessed an assault weapon unless they were instructed “what characteristics of the gun the defendant was required to know about.”
A trial court has the duty sua sponte to instruct the jury on general principles of law relevant to the issues raised by the evidence, commonly stated as those “principles that are closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) Beyond this basic requirement, “[a] defendant who believes that an instruction requires clarification must request it.” (People v. Coddington (2000) 23 Cal.4th 529, 584, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
In the present case, the jury was instructed that the prosecution was required to prove that “defendant possessed an assault weapon, specifically a SKS with detachable magazine,” that defendant knew he possessed it, and that “defendant knew or reasonably should have known that it had characteristics that made it an assault weapon.” The jury was further instructed that an “SKS with detachable magazine is an assault weapon.” Defendant did not request any instructions to clarify or expand on those given.
The evidence in this case did not require the jury to make a determination whether, in the abstract, defendant knew or should have known the generic characteristics that can make a nonlisted firearm an assault weapon. Instead, the jury was required to determine whether the defendant knew or should have known that he possessed a particular rifle that “had characteristics that made it an assault rifle,” as the instruction stated. In this case, those “characteristics” were that the rifle was an “SKS with detachable clip.” Having a fuller description of those features of the particular weapon that may (or may not) have led the Legislature to list this rifle as an assault weapon would not in any way have aided the jury’s understanding of the issues before it. Accordingly, the court had no sua sponte duty to give any further instructions on these issues.
Similarly, the jury was not required to arrive at an abstract definition of “assault weapon,” and there is no danger in the present case that the jury would have substituted a “lay” definition of “assault weapon” in place of the court’s clear instruction that, in the case before it, an SKS with a detachable clip is an assault weapon.
Defendant insists the court failed to instruct the jury on “the legal definition of ‘assault weapon,’” thereby failing to instruct on an element of the crime in violation of the Sixth Amendment. As we explained in the previous section, however, defendant misapprehends that “legal definition.” In the case of a listed weapon, the listing is the legal definition of “assault weapon.” The trial court did not deprive defendant of his Sixth Amendment rights.
Disposition
The judgment is affirmed.