Opinion
C042929.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL JONES, Defendant and Appellant.
After a handgun was found under the drivers seat of a van that defendant Gabriel Jones was driving, a jury found him guilty of being a convicted felon in possession of a firearm. (Pen. Code, § 12021, subd. (a)(1).)
Defendants position at trial was that, although he may have had access to the handgun, he was unaware of its presence at the time of his encounter with police officers and, hence, could not actually possess the firearm as required by statute. He contends on appeal the trial court erred in refusing to instruct the jury that "access to the thing, without more, is insufficient to support a finding of possession."
We shall affirm the judgment. As we will explain, the court correctly instructed the jury that defendant could not be found guilty of possessing the handgun unless he knew of its presence in the van; the court was required to do no more.
FACTUAL AND PROCEDURAL BACKGROUND
Oroville Police Officers Martin and Bruschi made a traffic stop after they saw defendant, who was driving a van, skid through a stop sign in a high-narcotics crime area. Officer Martin spoke to defendant as he sat inside the van; Officer Bruschi approached the passenger side of the van, where a woman sat in the front passenger seat.
When Officer Martin asked defendant for registration and insurance information, defendant reached with his right hand to the floor between the drivers and passengers seats. From outside the passenger window, Officer Bruschi had a clear view with his flashlight of defendants hand on the handle of a gun on the floor of the van beneath the drivers seat. Officer Bruschi immediately drew his weapon and started yelling, "Show me your hands." Officer Martin pulled defendant out of the van and handcuffed him.
The officers removed a small-caliber revolver containing two live cartridges from underneath the drivers seat of the van. In an ashtray directly behind the drivers seat, the officers found four pieces of rock cocaine in plastic packaging and some methamphetamine.
Defendant was charged with possessing methamphetamine while armed with a loaded, operable handgun (Health & Saf. Code, § 11370.1, subd. (a)); being a convicted felon in possession of a handgun (Pen. Code, § 12021, subd. (a)(1)); and driving while under the influence, a misdemeanor (Veh. Code, § 23152, subd. (b)). He pled no contest to the misdemeanor charge and went to trial on the felonies.
Defendant testified he borrowed the van from an acquaintance to go to the market to buy beer and did not know there were drugs in the ashtray or a handgun under the drivers seat. Contrary to Officer Bruschis testimony, defendant claimed he never touched the handgun and did not know it was in the van until he had been taken into custody and Officer Martin removed the gun from the van.
Defendant was found guilty of being a convicted felon in possession of a firearm and not guilty of possessing methamphetamine while armed with a loaded, operable handgun.
DISCUSSION
Consistent with his theory of defense — that he did not know the handgun was in the van — defendant asked the trial court to instruct the jury with CALJIC No. 1.24 which was modified by adding the italicized sentence below: "There are two kinds of possession: actual possession and constructive possession. [¶] Actual possession requires that a person knowingly exercise direct physical control over a thing. [¶] Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [¶] However, access to the thing, without more, is insufficient to support a finding of possession. [¶] One person may have possession alone, or two or more persons together may share actual or constructive possession." (Italics added.)
The court rejected the proposed instruction. Instead, it gave CALJIC No. 12.44 as follows:
"Defendant is accused in Count Two of having violated section 12021(a)(1), a crime. Every person who, having previously been convicted of a felony, owns or has in his possession or under his custody or control any pistol, revolver, or other firearm is guilty of a violation of section 12021(a)(1) of the Penal Code, a crime.
"In this case, the previous felony conviction has already been established by stipulation so that no further proof of that fact is required. You must accept as true the existence of this previous felony conviction.
"There are two kinds of possession: actual possession and constructive possession. [¶] `Actual possession requires that a person exercise direct physical control over a thing. [¶] `Constructive possession does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [¶] One person may have possession alone, or two or more persons together may share actual or constructive possession.
"In order to prove this crime, each of the following elements must be proved: [¶] One, the defendant had in his possession or had under his control a firearm; and [¶] Two, the defendant had knowledge of the presence of the firearm."
The jury also was instructed with CALJIC No. 3.30 that a guilty verdict requires a union or joint operation of act or conduct and the requisite intent.
Defendant contends the trial courts refusal to instruct the jury that "access to the thing, without more, is insufficient to support a finding of possession" constituted reversible error. The People correctly respond that instructing the jury with CALJIC No. 12.44 adequately communicated the notion that access alone does not amount to possession.
"One criminally charged is reasonably entitled to instruction on his theories of defense which are supported by the trials evidence. He is not entitled to such instructions in language chosen by himself. `[T]here is no requirement that the court instruct in the exact language submitted by the defendant, or that it give redundant or repetitious instructions. [Citation.]" (People v. Mendoza (1986) 183 Cal.App.3d 390, 399; see also People v. Bolden (2002) 29 Cal.4th 515, 558.)
To be found guilty of being a convicted felon in possession of a firearm, defendant had to know that the firearm was present within his reach under the drivers seat. "The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm. [Citations.] Knowledge is also an element of the offense." (People v. Jeffers (1996) 41 Cal.App.4th 917, 922; People v. Snyder (1982) 32 Cal.3d 590, 592.) A defendant may be deemed in possession even if his right to exercise dominion and control over the place where the contraband was located is shared with others. (People v. Rushing (1989) 209 Cal.App.3d 618, 621, 622.) And possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (Ibid.; see also People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) The standard CALJIC instruction correctly described the elements of this offense to the jury.
In addition, the standard instructions explicit requirement that "defendant had knowledge of the presence of the firearm" and its direction that defendant could not be found guilty unless he "exercise[d] direct physical control" over the handgun or "knowingly exercise[d] control over or the right to control [it]" (italics added) were adequate to convey the principle that unknowing access, without more, does not establish possession. Because the standard instruction correctly stated the law, an additional instruction explaining that "access to the thing, without more, is insufficient to support a finding of possession" was unnecessary and would have been duplicative. As a general rule, "`a trial court may refuse a proffered instruction if it . . . is duplicative." (People v. Brown (2003) 31 Cal.4th 518, 559.)
Our conclusion comports with the decision of another Court of Appeal, which rejected a similar "access is not enough" instruction in a case charging possession of a controlled substance. In People v. Mendoza, supra, 183 Cal.App.3d 390, the appellant argued he had been prejudiced by the courts refusal to instruct the jury that the "fact that defendant is in close proximity to or has access to a controlled substance is not enough in and of itself to prove possession. That something more is required to show possession." (Id. at p. 399.) Rejecting his contention, the Court of Appeal concluded "the jury were properly told that `access to a controlled substance is not enough in and of itself to prove possession" when they received the standard CALJIC instruction on actual and constructive possession, including the requirement that appellant know of the contrabands presence. (Id. at pp. 399-400.) The same conclusion is compelled here.
We likewise reject defendants argument that the court should have given the requested instruction because "[u]nder CALJIC 12.44, the jury could find appellant guilty of possessing the gun even if he had discovered the gun only moments before the police detained him." His suggestion that the court erred in failing to instruct consistent with a theory that defendant "did not actually possess the gun because he was unaware of the gun until moments before he was taken into custody" is meritless because there was no evidence from which the jury could have so concluded. To the contrary, defendant testified repeatedly and unambiguously that he knew nothing about the handgun until after he had been removed from the van by police. Although, in criminal cases, "`"`the trial court must instruct on the general principles of law relevant to the issues raised by the evidence"" (People v. Garvin (2003) 110 Cal.App.4th 484, 488), it need not instruct consistent with a theory of defense neither supported by the evidence nor relied upon by the defendant. (Ibid.)
During deliberations, the jury sent the judge a note asking, "If a person did not know about the gun before they got in the van, but then discovered it after or when in transit, is it then considered to be in possession?" This question may have been prompted by defense counsels argument in closing: "Another situation. If that person, lets say theyre in the car, theyre driving it, have no knowledge of whats in it, and they get in the car, and during their trip, they become knowledgeable of the contents of contraband. I would suggest to you they still may not be guilty of possession because they do not have a right to control those items. [¶] So possession does not just mean if its in the car, the person driving the car or the vehicle is legally in possession of it. It doesnt mean that. It doesnt mean access to the items. It doesnt mean if its reachable, if they can obtain it, that it necessarily infers possession. A person has to have knowledge. A person has to have the right to control those items." In response, the court directed the jury to "[r]efer to the general intent and possession instructions, 3.30, 12.44, and 12.52."
The trial court did not err in refusing the requested instruction.
DISPOSITION
The judgment is affirmed.
We concur, NICHOLSON, J., ROBIE, J.