Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF138450., Raymond Edwards, Jr., and Roger A. Luebs. Judges.
Judge Edwards presided over defendant’s trial. Judge Luebs pronounced sentence.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Stephanie Irene Lucero appeals from her conviction of unlawfully carrying an loaded firearm not registered to her (Pen. Code, § 12031, subds. (a)(1) and (a)(2)(F) (count 1)) and being a felon in possession of a firearm (§ 12021, subd. (a)(1) (count 2)). Defendant contends: (1) the evidence was insufficient to support her convictions; and (2) instructing the jury with CALCRIM Nos. 223, 226, 302, and 332 undermined the presumption of innocence and shifted the burden of proof to the defense. We find no error, and we affirm.
All further statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL BACKGROUND
In the afternoon of July 24, 2007, Riverside Police Officer Bryan Galbreath activated the lights on his patrol car to initiate a traffic stop. The vehicle started to slow, and Officer Galbreath testified that he saw the driver (defendant), and her passenger, Lance Reed, both lean forward, making furtive movements with their arms, as if they were reaching down below towards each other. The officer believed they were trying to reach for something or conceal something.
Reed pleaded guilty to the same offenses as defendant. Reed is not a party to this appeal.
Defendant gave Officer Galbreath permission to search the car, and the officer had defendant and Reed get out of their vehicle. The officer searched the vehicle and found a loaded double-shot Derringer pistol partially underneath the passenger seat, within reach of both defendant and Reed. The car was registered to a third person who was never questioned as to whether the gun belonged to him. No fingerprints were obtained from the gun or bullets.
At the scene, Reed initially told Officer Galbreath that the pistol was not his, and he had not known it was in the car. Later, Reed told the officer that when he and defendant were being pulled over, defendant handed him the pistol and told him to hide it, so he put it beneath the seat.
At trial, Reed testified he had not been aware that a police car was behind them until defendant stopped the car. The gun had been in his pocket before the stop, and he threw the gun underneath the seat. He claimed defendant had yelled at him because she had not known he had the gun before she saw him throw it under the seat. He denied telling the officer that defendant had handed him the gun.
Riverside County Probation Officer Margaret O’Brien testified that defendants often lie to her after they plead guilty so she will recommend a more lenient sentence. She testified that Reed had told her the gun was not his and that defendant had a gun.
The jury found defendant guilty of unlawfully carrying a loaded firearm not registered to her (§ 12031, subds. (a)(1) and (a)(2)(F)) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)).
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Sufficiency of Evidence
Defendant contends the evidence was insufficient to establish that she possessed a firearm. She contends the only evidence showing she had knowledge of the gun was the statements of Reed and Officer Galbreath, and those statements were not credible.
1. Standard of Review
When a criminal defendant challenges the sufficiency of the evidence to support his conviction, this court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence (People v. Johnson, supra, at p. 576), and we do not substitute our judgment for that of the jury. (People v. Ceja (1993) 4 Cal.4th 1134, 1139, 1143.) The same principles apply when the conviction rests solely or primarily on circumstantial evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “[U]nless the testimony is impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) This court may not reject the testimony of a witness who has been believed by the trier of fact unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. (People v. Duncan (2008) 160 Cal.App.4th 1014, 1018.)
2. Analysis
Knowledge of the presence of the firearm is an element of violations of both sections 12031, subdivision (a)(1) and 12021, subdivision (a)(1). (See People v. Llamas (1997) 51 Cal.App.4th 1729, 1743; People v. Low (1983) 148 Cal.App.3d 89, 92 [substantial evidence established that the defendant convicted of a violation of section 12021 had knowledge of the presence of a handgun found in his car].) Defendant contends the evidence was insufficient to establish that element of the crimes.
At trial, Officer Galbreath testified that he had seen both defendant and Reed lean forward towards each other and move their arms while defendant’s car was slowing for the traffic stop. However, Officer Galbreath also testified, after refreshing his memory with a tape recording made at the scene, that he had told defendant he had seen the passenger moving, and the officer did not recall if he had told defendant he had seen her moving. Even though Reed testified the gun belonged to him and defendant had not known about the gun before the traffic stop, it was the jury’s duty to determine whose testimony was more credible, and we may not reject the jury’s determination unless the evidence is impossible or inherently improbable. (People v. Young, supra, 34 Cal.4th at p. 1181.) The fact that evidence has been contradicted or impeached does not mean that it is inherently improbable.
People v. Padilla (2002) 98 Cal.App.4th 127, is remarkably similar to the present case. In Padilla, thedefendant was convicted of possession of a firearm by a felon (§ 12021, subd. (a)(1)). Sheriff’s deputies initiated a traffic stop of the vehicle in which the defendant was a passenger, and before the vehicle pulled over, the deputies saw the defendant “lifting [his] right shoulder, turning [his] head and body to the left, and [making] repeated up and down motions toward the center area of the front seat.” (Padilla, supra, at p. 132.) Those actions “gave the appearance of [the defendant’s] reaching for something from his right pocket or waistband and then ‘stuffing’ something down into the center area of the seat,” where the officers found a gun. (Ibid.) Without telling the defendant that the gun had been found, a deputy asked the defendant what else was in the car, and the defendant replied, “There’s nothing else in there but the gun.” At the police station, the defendant told a deputy that the gun was not his, but that it belonged to the driver. (Ibid.) The defendant said he had been unaware of the gun until the driver threw it to him, and he then stuffed it between the seats. (Id. at p. 134.) On appeal, the defendant contended the evidence was insufficient to support his conviction. The court found that contention “patently without merit.” The court observed that the driver had denied owning the gun, the deputies had described the defendant’s motions that supported a reasonable inference the defendant had withdrawn the gun from his waistband before concealing it between the seats, and the jury could discredit the defendant’s self-serving statement. (Id. at pp. 134-135.)
We conclude substantial evidence supported defendant’s convictions.
B. Jury Instructions
Defendant contends CALCRIM No. 223, by referring to disproving the elements of a charge, improperly suggested the defendant must disprove a charge to be found not guilty. She further contends CALCRIM Nos. 302, 226, and 332 are incorrect because exculpatory evidence need not be believed to raise a reasonable doubt. She asserts that considered alone or cumulatively, those four instructions undermined the presumption of innocence and shifted the burden of proof to the defense.
1. Standard of Review
The correctness of jury instructions is a question of law that we review de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) “If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.] ‘“‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’” [Citations.]’” (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
2. The Challenged Instructions
The jury was instructed with CALCRIM No. 223 as follows: “Facts may be proved by direct or circumstantial evidence or by a combination of both. [¶... [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge,... and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.” (Italics added.)
The jury was instructed with CALCRIM No. 302, as follows: “If you determine that there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of any witness without a reason or because of prejudice or a desire to favor one side or the other. What is important... is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” (Italics added.)
The jury was instructed with CALCRIM No. 226, as follows: “You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s disability, gender, race, religion, ethnicity, sexual orientation, gender identity, age, national origin or socioeconomic status. [¶] You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.” (Italics added.)
The jury was instructed with CALCRIM No. 332, that it should follow the instructions about believability from CALCRIM No. 226 when considering the testimony of expert witnesses.
3. Forfeiture
Defendant did not object to the challenged instructions in the trial court, and the People contend that defendant has therefore forfeited her challenge on appeal. However, under section 1259, we must consider challenges to instructions “‘even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.’” (See People v. Stitely (2005) 35 Cal.4th 514, 556, fn. 20.) We will therefore consider the issue on the merits.
4. Analysis
The prosecution bears the burden of proving every element of an offense beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) A jury instruction contrary to that principle violates due process. (Sandstrom v. Montana (1979) 442 U.S. 510, 520, abrogated on another ground by Boyde v. California (1990) 494 U.S. 370, 390.)
In determining whether the jury was correctly instructed, we consider the entire charge to the jury. (People v. Smithey, supra, 20 Cal.4th at p. 963.) Here, in addition to the challenged instructions, the jury was preinstructed with CALCRIM No. 100, that the defense may present evidence but is not required to do so, and that the defendant is presumed innocent and does not have to prove she is not guilty. The jury was preinstructed with CALCRIM No. 103 as to the presumption of innocence, the People’s burden of proving each element of the charged crimes and allegations beyond a reasonable doubt, and the definition of reasonable doubt. Following trial, the jury was instructed with CALCRIM Nos. 224 and 225 as to the sufficiency of circumstantial evidence, including the requirement that to find the defendant guilty, the jury must be convinced that the People have proved each element beyond a reasonable doubt. The jury was instructed with CALCRIM No. 355, that the defendant has a right not to testify and may instead rely on the state of the evidence to argue that the People have not met their burden of proving the charges beyond a reasonable doubt. The jury was instructed with CALCRIM No. 220 as to the presumption of innocence and the People’s burden of proving every element beyond a reasonable doubt. Moreover, as to each of the charged crimes and allegations, the jury was instructed as to the specific elements that the People were required to prove.
Arguments to the jury reinforced those instructions. The prosecutor twice stated that the defendant’s guilt must be proven beyond a reasonable doubt. Defense counsel repeatedly emphasized that standard in his argument.
In light of the entire charge to the jury, we conclude it was not reasonably likely the jury misinterpreted CALCRIM No. 223 as requiring the defendant to disprove an element of the crime. Similarly, in light of the entire charge, we conclude it was not reasonably likely the jury misinterpreted CALCRIM Nos. 226, 302, and 332 as shifting the burden of proof. Thus, we find no instructional error.
IV. DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.