Opinion
F040060.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES FRANCIS MALLOY, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Leah Ann Alcazar and Robert P. Whitlock, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, James Francis Malloy, was convicted by a jury of possession of methamphetamine (count I, Health & Saf. Code, § 11377, subd. (a)); possession of a firearm by an ex-felon (count II, Pen. Code, § 12021); and possession of a controlled substance while armed (count III, § 11370.1). Appellant was sentenced to a total term of two years imprisonment for count III, and the sentences for the two other counts were stayed. (Pen. Code, § 654.)
All further references are to the Health and Safety Code, unless otherwise indicated.
On Friday, March 30, 2001, officers of the Stanislaus County Drug Enforcement Agency conducted a probation search of appellants residence. During the search, appellant told District Attorney Investigator Steve Jacobson there were "items ... he shouldnt have." Appellant led Jacobson to a two-car garage and a locked multi-drawer tool box, which contained an operable . 380-caliber semiautomatic handgun with two loaded magazines, one of which Jacobson believed was inserted into the weapon, and two small baggies of an "off-white powder" subsequently found to be a usable amount of methamphetamine. Jacobson thought the handgun had a round in the chamber, but said that Probation Officer Jill Henry would probably have to answer that question. Appellant told Henry the toolbox was his but the "drugs" did not belong to him and instead belonged to one Mark Atner. Appellant did admit he had used some of the drugs the previous Thursday. Henry and Jacobson testified appellant had told them the weapon belonged to Atner, and that Atner had brought it over to appellants house. Henry did not know whether the handgun was loaded, nor did she know if either of the magazines had been in the weapon when it was found. Appellant said he had locked the weapon in his toolbox to keep it away from his son.
Jacobson testified the key was in the lock. Appellant testified the key to the toolbox was on his key ring, along with other keys, which was in the ignition of his car that was in the garage when the officers arrived.
Jacobson videotaped his test firing of the weapon demonstrating it was operable.
Appellant testified the methamphetamine was his and had been given to him by Atner. Both appellant and Suzanne Gunn, Atners girlfriend, testified she had inadvertently brought the weapon to appellants residence the night before appellants arrest. Gunn admitted she lied to the officers about her knowledge of the weapon because she was afraid she would get in trouble herself.
DISCUSSION
I.
The evidence was sufficient to prove the handgun was loaded. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [a challenge to the sufficiency of the evidence requires the review of the entire record to determine whether the evidence presented is reasonable, credible and of solid value]; People v. Poe (1999) 74 Cal.App.4th 826, 830 [we must construe the evidence in favor of the judgment and will not reweigh the evidence, nor reassess the credibility of the witnesses, as that was the function of appellants jury]; People v. Bean (1988) 46 Cal.3d 919, 932, 251 Cal. Rptr. 467, 760 P.2d 996 [the standard of review is the same in cases where the prosecution relies mostly on circumstantial evidence].)
Section 11370.1, subdivision (a) prohibits possession of specified controlled substances "while armed with a loaded, operable firearm." The statute does not specifically, or by reference, define the term "loaded." However, there are provisions of the Penal Code which provide that a weapon is "loaded" when the weapon and unexpended ammunition are in the possession of same person. (See Pen. Code, § 171e ["A firearm shall be deemed loaded for the purposes of Sections 171c and 171d whenever both the firearm and unexpended ammunition capable of being discharged from such firearm are in the immediate possession of the same person"]; Pen. Code, § 12001, subd. (j) ["For purposes of Section 12023 [Armed Criminal Action], a firearm shall be deemed to be loaded whenever both the firearm and the unexpended ammunition capable of being discharged from the firearm are in the immediate possession of the same person"].) Another Penal Code section contains a more restrictive definition of loaded. (Pen. Code, § 12031, subd. (g) ["A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm . . ." (Italics added)].)
Section 11550 was amended as part of the legislation which first enacted section 11370.1. As originally enacted both section 11370.1, subdivision (a) and section 11550, subdivision (c) prohibited being under the influence of, or possession of certain quantities of, identified controlled substances while "in the immediate personal possession of a loaded, operable firearm." (Stats. 1989, ch. 1041 (AB407), §§ 1 & 2, pp. 3609-3610.) In 1991 section 11370.1 was amended prohibiting being "armed with" while in possession of any amount of the identified controlled substances. The amendment also defined "armed with" as "having available for immediate offensive or defensive use." (Stats. 1991, ch. 469 (AB154), § 1 p. 2280.) In 1990 section 11550 was amended redesignating subdivision (c) as subdivision (e) without substantive change. (Stats. 1990, c. 1096 (AB3407), § 1, pp. 4572-4573) The language of section 11550, subdivision (e) has remained the same since its original enactment as part of AB 407 in 1989.
This same definition is used in Penal Code section 626.9, subdivision (j), the Gun— Free School Zone Act. Penal Code section 12035, subdivision (a)(2), (concerning the storage of firearms), also adopts the definition of "loaded" as used in Penal Code section 12031, subdivision (g).
In People v. Clark (1996) 45 Cal.App.4th 1147, 1154, the court concluded the term "loaded" as used in section 11370.1, subdivision (a) is to be given its common ordinary meaning, which is consistent with the definition used in Penal Code section 12031, subdivision (g). We thus adopt the definition articulated in subdivision (g) of Penal Code section 12031. (See also People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal. Rptr. 401, 768 P.2d 1078 ["Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction"].)
The court in Clark reversed the defendants conviction because the single shot shotgun in issue was not "loaded;" the shotgun had a storage compartment containing shotgun shells for the shotgun in the buttstock of the weapon but had no unexpended round in the chamber of the shotgun. (People v. Clark, supra, 45 Cal.App.4th 1147, 1155.)
Here, the weapon in issue, unlike the single shot shotgun in issue in Clark, was a semiautomatic handgun, which, when recovered, had a magazine with unexpended cartridges inserted into its magazine well, making it possible to chamber an unexpended round in a "split second." (See People v. Simpson (1933) 134 Cal.App. 646, 651, 25 P.2d 1008 ["An automatic repeating rifle may not be termed an unloaded gun when its magazine contains loaded cartridges which may be instantly transferred to the firing chamber by the mere operation of a lever"; upholding grant of new trial motion on conviction for assault].) Jacobson explained the difference between having a round in the chamber of the .380 semiautomatic pistol and a loaded magazine in the weapon, as follows:
"Well, the only difference would be that there would be one [] round in the caliber [sic] ready to fire. The other one would require an operator to rack the weapon or charge the weapon to insert that round from the magazine into the chamber, which would only require like what you saw a split second to — from one to the other. It would only require a split second to chamber." (Italics added.)
These physical characteristics of the weapon, Jacobsons further testimony that he believed a loaded magazine was in the weapon when seized, Gunns testimony, and appellants own testimony concerning his handling of the weapon, including his statement that he did not remove the magazine from the weapon, furnish sufficient evidence that the firearm found in the toolbox with the methamphetamine was "loaded" for purposes of section 11370.1.
Appellants assertion that it was unreasonable for the jury to credit Jacobsons testimony about his belief the weapon was loaded raises an issue this court cannot address. Jacobsons testimony was admitted, there is no appellate claim it was erroneously admitted, and the statement was neither improbable nor incredible. It was therefore up to the jury alone to determine its worth. (People v. Poe, supra, 74 Cal.App.4th at p. 830.)
II.
As respondent concedes, appellants conviction for possession of methamphetamine (count I) must be reversed because it is a necessarily included offense of possession of a controlled substance while armed (count III). (People v. Ortega (1998) 19 Cal.4th 686, 700, 968 P.2d 48 [convictions for greater offense and lesser offense, if involving same conduct, requires reversal of the lesser conviction].)
III.
The trial court erred by providing the jury with a dictionary to use to find an additional definition of the term "armed" for purposes of section 11370.1, subdivision (a). However, the error was harmless beyond a reasonable doubt.
There is nothing in the record to indicate which dictionary was provided to appellants jury.
During deliberations the court received a note from the jury which read:
"We need further clarification of the term "armed" as defined in your info, ... specifically available for immediate ...."
The trial court discussed with counsel in chambers the jurys question and the courts proposed answer. The courts response to the jurys question was later put on the record, viz.:
"Court has discussed the question in chambers with both counsel, and I believe everyone agrees that the following response is appropriate: One of your roles as jurors is to interpret the meaning of such language in relation to the facts that you have determined to exist. In so interpreting, you may and should assign to these words and phrases their everyday meanings. In the event that you may find it helpful, a dictionary is provided for your assistance, signed and dated by the Court."
Both the prosecutor and appellants trial attorney agreed this was an appropriate response to the jurys question. The prosecutor requested that the court inspect the dictionary to make certain there were no other extraneous items in it.
Giving the jury the dictionary was erroneous. (People v. Karis (1988) 46 Cal.3d 612, 642, 250 Cal. Rptr. 659, 758 P.2d 1189 [misconduct for jury to refer to dictionary during deliberations]; Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 323-330, 276 Cal. Rptr. 430 [misconduct for civil juror to consult dictionary for definition of "preponderance"]; People v. Harper (1986) 186 Cal. App. 3d 1420, 1430, 231 Cal. Rptr. 414 [presumption of prejudice rebutted where jury promptly admonished regarding one jurors use of dictionary to define murder]; People v. Barela (1991) 234 Cal. App. 3d Supp. 15, 18-19, 286 Cal. Rptr. 458 [error in providing dictionary to jury waived by failure to object];People v. Thompson (1990) 50 Cal.3d 134, 174, 266 Cal. Rptr. 309, 785 P.2d 857 [presence of an unopened and unused dictionary in jury room does not amount to misconduct]; People v. Barton (1995) 37 Cal.App.4th 709, 714-715 [two dictionaries in jury room, one with post-it notes on pages defining "aid," "commission," "deliberate," and "principle," presumption of prejudice rebutted by courts admonishment and jurys agreement verdict based upon legal definitions as used in jury instructions].)
The mistake is not equivalent to jury misconduct. It was not the jury, nor was it a single juror, that took the initiative to consult the extraneous material. It was instead the court, with the agreement of both counsel, who provided the jury with the extraneous material, i.e., the dictionary. (People v. Cooper (1991) 53 Cal.3d 771, 835-836, 281 Cal. Rptr. 90, 809 P.2d 865 [not jury misconduct where jury considers evidence "inadvertently" introduced, reversal only required where there is a reasonable probability defendant would have achieved more favorable result]; accord People v. Clair (1992) 2 Cal.4th 629, 667-668, 828 P.2d 705; see also Remmer v. United States (1954) 347 U.S. 227, 229, 98 L. Ed. 654, 74 S. Ct. 450 [private communication with juror or jury presumptively prejudicial unless "made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties"].)
We ignore the question whether the error was invited by defense counsels express consent to the courts response to the jurys question.
We think the mistake was akin to misinstruction of the jury, and we will analyze the matter of prejudice under the principles applicable to that concept. (See People v. Cox (2000) 23 Cal.4th 665, 676-678 & fn. 6; Neder v. United States (1999) 527 U.S. 1, 12-13, 18, 144 L. Ed. 2d 35, 119 S. Ct. 1827.) The appropriate standard of prejudice is therefore the harmless beyond a reasonable doubt test of Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824. (People v. Cox, supra, 23 Cal.4th at p. 676-678 & fn. 6.)
The trial courts error was harmless because the evidence was overwhelming that appellant possessed methamphetamine "while armed with a loaded, operable firearm" which was "available for immediate offensive or defensive use." ( § 11370.1, subd. (a); People v. Johnson (1993) 6 Cal.4th 1, 45-46, 859 P.2d 673 [instructional error, omitting element from offense, does not require reversal where evidence of guilt was so overwhelming as to leave it beyond a reasonable doubt the verdict would have been the same had the jury been properly instructed]; People v. Bland (1995) 10 Cal.4th 991, 1003-1006, 898 P.2d 391 ["Evidence that a firearm was kept together with drugs in a place frequented by the defendant is sufficient to support a finding that the defendant was armed with a firearm in the commission of the felony drug offense. ( § 12022.)"].) Here the loaded and operable firearm was seized from appellants locked toolbox, along with methamphetamine, glass pipes used for smoking methamphetamine, and other paraphernalia associated with methamphetamine use. Additionally, appellant was in the garage within two to three feet of the toolbox when officers arrived to conduct the probation search. (People v. Bland, supra, 10 Cal.4th at p. 1002 [firearm kept near drug cache establishes "facilitative nexus;" inference that person who possesses drugs kept weapon close at hand for "ready access" to aid in drug offense].)
At minimum, the jury could legitimately have concluded that, when appellant opened the toolbox that held the drugs and the gun, the weapon became "available [to him] for immediate offensive or defensive use."
Because the evidence established that appellant was "armed" within the scope of the applicable legal test described in the instructions given to the jury, we are satisfied beyond a reasonable doubt that, had the court not given the jury the dictionary, appellant still would have been found to have been "armed" under the correct instructions the jury did get. In other words, there was virtually irrefutable evidence appellant was armed under the legal standards articulated in the correct instructions given to the jury; it is thus unlikely appellant would have been acquitted if an additional definition not sanctioned by the law, whatever it was, had not been provided. In fact, it is immaterial how "armed" may have been defined by the dictionary provided to the jury. Had this definition been narrower — i.e, requiring actual physical possession of the weapon by appellant — than the legal definition found in the proper instructions actually given, appellant would have been acquitted had the jury relied upon such a narrower definition. Had the dictionary definition been broader, he would have been convicted nonetheless.
If the record shows anything, it is that the jurors were focused upon the proper definition given them by the instruction. Defense counsel stressed in this argument that there was no proof the gun was available to appellant for immediate use and the courts inquiries of the jury in responding to the second question (see post.) posed by the jury disclosed that the jury debate about the meaning of the word "armed" was centered upon the meaning of the phrase "available for immediate offensive or defensive use."
IV.
CALJIC No. 17.41.1 did not intrude into or compromise the jurys secrecy or its deliberative process. (See People v. Engelman (2002) 28 Cal.4th 436.)
CALJIC No. 17.41.1, as given, states:
"The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment on any other improper basis, it is the obligation of other jurors to immediately advise the Court of the situation."
During deliberations a second note from the jury was brought to the attention of court and counsel. This note was made at 3:20 p.m. and stated:
"Pursuant to 17.41.1 one juror refuses to accept the definition of Armed that all other jurors have accepted. We cannot proceed until we have agreement on this point."
After off the record discussions with counsel outside the jurys presence, the court recalled the jury to the courtroom, and the following colloquy took place:
"THE COURT: May I have your instructions please and your last note to me? Were back. All the jurors are present in the courtroom. Both counsel are present. Defendant is present. The record reflects the previous question that the Court responded to or attempted to respond to. [P] Okay. Juror No. 12, youre the foreperson; correct?
"JUROR NO. 12: Yes, I am.
"THE COURT: All right. Let me initially direct a couple of questions to the foreperson. Im reading pursuant to 17[.]41.1. One juror refuses to accept the definition of "armed" that all other jurors have accepted. We cannot proceed until we have agreement on this point. [P] Let me ask this question of the foreperson; then, what Im going to do is if there is any — Ill ask the foreperson a question or two, then if there is any disagreement with the forepersons interpretation, Ill allow whoever is interested in sharing that disagreement with me. Okay? [P] Mr. Foreperson, in your view, is this a situation where the — where the dissenting juror, one, refuses to accept the definition provided by the Court, 18 or is this a situation where you are still trying to as a juror to come up with — as a juror, to decide what immediate and available for immediate use means? Is that
"JUROR NO. 12: As a group, we have debated the terminology of the definition given to us there. Were all in agreement except for one. And he — that juror has, I would say, a preconceived idea of what armed means and seems unwilling to adjust to the definition as we have discussed it with him. Theres some confusion semantically with the construction of the sentence that he either doesnt understand or is unwilling to accept our understanding of it.
"THE COURT: Okay. Has that juror been participating in the process with the rest of you?
"JUROR NO. 12: Oh, very much. Very much, yes.
"THE COURT: Does anybody other than the foreman disagree with your forepersons explaining the situation, explaining the problem to me at this point? Im asking really all 11 of the remaining 11 of you. Has your foreperson fairly and accurately described the situation? Obviously Im asking without asking, or it is this point the one who at this point is not in agreement? Does everybody agree with the foreperson as to how hes laid out the issue? If I dont hear from anybody, Ill assume that you all do. [P] So it sound to me as though everyone is accepting, looking at page — Im looking at line 8 and 9, "Armed with" means having available for immediate offensive or defensive use. [P] It sounds to me as though everyone, all 12 of you, are trying to determine what, having available for immediate offensive or defensive use means. In other words, youre all accepting, yes, thats what armed with means. It means having available for immediate offensive or defensive use. Its just that your disagreement is what constitutes availability for immediate or defensive use?
"JUROR NO. 12: (Nods head.)
"JUROR NO. 6: (Nods head.)
"THE COURT: Okay. Well, it sounds to me at this point as though you have a disagreement. It doesnt sound to me like anybody thinks anybody else is acting in bad faith. It just seems to me like you have a at this point a good faith disagreement. [P] Does anybody disagree with that? Everybody agree that at this point theres just a good faith disagreement as to what available for immediate offensive or defensive use means?
"JUROR NO. 12: (Nods head.)
"THE COURT: Well, I think its appropriate then that I ask you to continue your deliberations. Oftentimes, folks, I wish I could be of more help. Sometimes I cant. And thats okay too. All right? So Im going to ask you to continue your deliberations. Okay? Thank you, folks. Let me give you back the instructions, and Ill give you back the note that I have provided a response to previously.
"THE COURT: Fair enough, Counsel.
"MR. HARA [prosecutor]: Fair enough, Judge.
"MS. WAGNER [defense counsel]: Thats fine."
After the discussion with the court, the jury returned to deliberate at approximately 3:45 p.m., and reached a verdict at 4:25 p.m. After the jury had resumed deliberations, defense counsel agreed with the Courts assessment that there was neither jury misconduct nor a refusal by a juror to deliberate.
Under the circumstances the court properly handled the matter. It is clear from the foregoing record extract that the jurys disagreement centered upon whether appellant was "armed." The court did not single out the disagreeing juror, attempt to determine who that juror was, or tell any juror he or she should agree with the other jurors as to any issue, let alone the particular issue raised by the jurys question to the court. (See People v. Gainer (1977) 19 Cal.3d 835, 848-849, 139 Cal. Rptr. 861, 566 P.2d 997 [error to instruct holdout juror to consider their views in light of majoritys view]; People v. Burgener (2003) 29 Cal.4th 833, 879-880 [not error for judge to admonish death penalty jury of their duty to deliberate and cooperate with each other after receiving note that one juror was being difficult]; People v. Gill (1997) 60 Cal.App.4th 743, 747-749 [no coercion of jury by courts inquiry into division (11 to 1) and instructing jury to continue their deliberations].) The courts inquiry was consciously limited to discerning whether the juror refused to deliberate, a proper ground for dismissal of the juror. (Pen. Code, § 1089; Code Civ. Proc., §§ 233, 234; People v. Thomas (1994) 26 Cal.App.4th 1328, 1333; CALJIC No. 17.40.) The court did not attempt to delve into the deliberative process itself, other than to determine whether the disagreeing juror was participating in the debate, and did not attempt to discern the thought processes of any juror. (See People v. Cleveland (2001) 25 Cal.4th 466, 476, 485.) Once the court was satisfied the juror was participating in the jurys deliberations, and that the dispute was a "good-faith" one, the court correctly instructed the jury to continue its deliberations. (See Pen. Code, § 1140.)
In addition, there is no record indication that the disagreeing juror was ever subjected to undue pressure, either by the court or the remaining jurors. All jurors agreed the dispute was in good faith, and the foreperson confirmed that the juror was actively participating in the deliberative process. (See People v. Johnson (1992) 3 Cal.4th 1183, 1255, 842 P.2d 1 ["Jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means"].)
Last, once the verdicts had been read, the court inquired of the jury whether it was in fact the jurys verdict; the jury "responded affirmatively in unison." (Pen. Code, § 1164; People v. Wattier (1996) 51 Cal.App.4th 948, 955-956 [no coercion of juror where during polling by court juror indicated it was not his verdict; jury sent back for further deliberations returning in 30 minutes with unanimous guilty verdict]; People v. Green (1995) 31 Cal.App.4th 1001, 1009-1010 [verdict not complete if juror dissents during polling].)
Thereafter, appellants trial counsel declined the right to have the jury polled individually, and the verdicts were recorded. (Pen. Code, § 1163.)
In sum, the record establishes that, while CALJIC No. 17.41.1 may have played a role in the jurys deliberations, it did not result in any error affecting appellants state or federal rights to a fair trial or due process. (People v. Engelman, supra, 28 Cal.4th at p. 444 [use of CALJIC No. 17.41.1 does not infringe on defendants federal or state rights to jury trial; or state constitutional right to unanimous jury verdict].)
The fact that the jurys verdict came approximately 40 minutes after the jury resumed deliberations does not establish that the disagreeing juror was improperly coerced into an agreement with the remaining jurors. None of the cases cited by appellant are dispositive of these issues because each included additional, specific factors not present here. (E.g., People v. Crowley (1950) 101 Cal. App. 2d 71, 73-79, 224 P.2d 748 [after approximately four and a half hours of deliberations jury advised court at 4:22 p.m. they were unable to reach verdict; court advised them evidence was "plain and clear;" court further advised jury if they were unable to reach a decision by 5:00 p.m. they would be locked up for the night; jurys verdict came at 5:00 p.m.]; People v. Crossland (1960) 182 Cal. App. 2d 117, 5 Cal. Rptr. 781 [after prior hung jury, court told current 10 to 2 jury it was "the most simple case I ever tried," jury sent back to continue deliberations returning in 23 minutes with guilty verdict]; see also cases collected in People v. Crowley, supra, 101 Cal. App. 2d at pp. 76-78.)
V.
Any error by the court in excluding the word "only" from CALJIC No. 2.23 was harmless.
CALJIC No. 2.23, unaltered, reads:
"The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witnesss believability. It is one of the circumstances that you may take into consideration in weighing the testimony of that witness." (Italics added.)
In discussing the instructions, the court and counsel addressed the wording of CALJIC No. 2.23 in light of appellants stipulation to a felony conviction for purposes of that element of Penal Code section 12021 (count II), as follows:
"THE COURT: ... It is the consensus of the Court and both Counsel that the word only should be stricken inasmuch as that might be confusing to the jury because obviously the prior conviction thats been stipulated to can be considered as an element of the offense of felon in possession of a firearm. So obviously the word only we all believe would be inappropriate at this point and might tend to confuse the jury. Is that your agreement, Mr. Hara?
"MR. HARA [prosecutor]: It is.
"[THE COURT: And Ms. Wagner?]
"MS. WANGER: [defense counsel]: Yes.
"THE COURT: All right. So weve gotten that clarified." (Italics added.)
We assume but do not decide that defense counsels agreement with the deletion did not waive the issue for purposes of appeal.
Appellant postulates that, with the exclusion of the word "only" from the instruction, the jury was free to consider appellants prior felony convictions for an illicit purpose, such as proof of a disposition to commit crimes.
We conclude it is not reasonably probable a more favorable result would have been achieved in the absence of the claimed error. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; People v. Lomeli (1993) 19 Cal.App.4th 649, 655-656 [harmless error to fail to instruct jury defendants misdemeanor convictions could only be used for impeachment].) As we previously explained, the evidence of appellants guilt was overwhelming, including his own testimony regarding the methamphetamine and the loaded and operable firearm. Appellants speculation that the jury could have considered his prior convictions for improper purposes is an insufficient basis upon which to conclude the claimed error resulted in a miscarriage of justice. The test of whether the jury would have reached a different verdict must be based on a reasonable probability rather than on a mere possibility. (People v. Watson, supra, 46 Cal.2d at p. 837)
DISPOSITION
The judgment is modified to strike the conviction and sentence as to Count I (possession of methamphetamine), and, as so modified, the judgment is affirmed. The trial court shall prepare and appropriately distribute an amended abstract.
WE CONCUR: Buckley, J., and Gomes, J.