Opinion
A096407.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. VICTOR JESUS MEZA, Defendant and Appellant.
Defendant Victor Meza appeals his conviction for unlawful possession of a firearm in a school zone. He contends that the trial court failed to instruct the jury on the defense of momentary possession of a firearm for the purpose of disposal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Case
At noontime on September 17, 1999, Rodney Liner, a teacher at Sequoia High School, was walking through the schools faculty parking lot when he noticed three or four students surrounding the open trunk of a car. While walking toward the car, Liner heard a "click" which he recognized as the sound of a gun hammer hitting an empty chamber. Walking toward the students, Liner saw what appeared to be a gun in defendants hand. Liner said to defendant, "You dont have a gun in the trunk of that car, do you?" Defendant denied it, saying it was a screwdriver. He quickly put something under a rag and shut the trunk.
After defendant locked the car, Liner led him to a school building to report the incident. While walking, defendant attempted to leave his keys on the trunk of a parked car, but the teacher quickly picked them up. Upon notifying another teacher to alert security, Liner and defendant returned to the car. There, at Liners direction, defendant opened the trunk by activating a lever inside the car.
Liner removed the rag he had seen earlier and uncovered a small .32 caliber pistol from beneath it. While reaching for the gun, he noticed two bullets under some papers defendant was rustling in the trunk. After Liner removed the gun and bullets, he and defendant waited for assistance. Defendant stated several times that he found the gun and begged Liner not to turn him in. Liner replied that he had no choice. When other adults arrived, Liner explained what happened, returned the gun and bullets to the trunk, closed it, and left for an appointment.
Police Officers Steve Unga and Ken Faljean were dispatched to the school. Defendant told Unga that two or three weeks earlier he found the gun that was currently in the trunk of his Honda. Defendant claimed he had given his keys to a friend, so Unga used the lever inside the car to unlock the trunk and see the gun.
In a subsequent interview with Officer Faljean, however, defendant reported he had found the gun five days earlier near some train tracks. He said he brought the gun to campus because he planned to turn it in to the police or probation department, neither of which were located at the school. Defendant said he contacted a friend for advice the previous day. Although he knew it was wrong, defendant admitted he brought the weapon on campus to show his friends, and agreed that he thought guns were cool.
Deputy Superintendent Donald Gielow testified that the faculty parking lot was part of the school campus, and signs designated campus boundaries. He further stated that school policy clearly prohibits guns on campus, and that all students are informed of the policy during orientation. Gielow did not give anyone permission to bring a gun on campus that day.
II. Defense Case
Defendant testified that he found the gun near some railroad tracks while walking home from a soccer game on September 12, 1999. Concerned about the safety of others, he put the gun in his backpack and went straight home. After examining the gun and removing the bullets, he hid the gun and ammunition on a high closet shelf in his house. Because he was busy with work and school, he left the gun there until September 17. He did not tell his family about the gun, nor did he call or drive to the police station, which was only 15 minutes from his home.
On September 16, 1999, defendant called his friend, Antonio Sanchez. Defendant told Sanchez he had found a gun and asked for his help in turning the gun over to authorities. Sanchez said they could either take the gun to the police department or to the probation department, neither of which were on the high school campus. Defendant planned to call Sanchez the next day so they could decide where to take the gun.
On September 17, defendant wrapped the gun in a rag and placed it and the bullets in the trunk of his Honda. He drove to school around 11:40 a.m. and parked in the back parking lot. He met his girlfriend, Rosa Guzman, outside her class and gave her his car keys. Because she did not have a ride home and her classes ended before his, Guzman planned to drive defendants car home and pick him up later that afternoon. Defendant did not tell her about the gun or bullets in the trunk.
When he saw defendant at school, Sanchez asked to see the gun. Defendant said no, but Sanchez persisted until defendant agreed. They walked to defendants car where defendant opened the trunk by pulling a latch inside the car. As defendant started to remove the cloth covering the gun, a teacher approached and asked what they were doing. The teacher asked defendant if he had a gun. Nervous and afraid, he lied and said, "No."
The teacher led defendant towards the office and repeatedly asked him for his car keys. Defendant said he did not have them. Defendant had Sanchezs keys, which he attempted to leave on the trunk of a car. The teacher saw the keys and told defendant to retrieve them. Upon returning to his car, defendant told the teacher there was a gun in the trunk. Defendant said he had found the gun and wanted to turn it in. At the police station, defendant gave Officer Faljean the same information.
Defendant admitted that he knew it was wrong to bring a gun to school, and that he was aware he parked on campus. He knew he did not have permission to bring the gun to school. There was no reason for him to bring the gun on campus, and the only reason he opened the trunk was to show the weapon to Sanchez.
The jury convicted defendant for unlawful possession of a firearm in a school zone. The court then suspended imposition of sentence, and placed defendant on three years probation.
This was defendants second trial, the first having ended in a mistrial.
DISCUSSION
I. Instructional Clause
Defendant requested that the judge instruct the jury on the defense of momentary possession for disposal under the following modified version of CALJIC 12.06: "A person is not guilty of [section 626.9] when his possession of the firearm is shown to be lawful. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that his possession of the firearm is lawful.
At the time of defendants trial in 2000, there was a split in appellate authority as to whether an essential element of the defense was "momentary" possession (People v. Sullivan (1989) 215 Cal. App. 3d 1446, 264 Cal. Rptr. 284), or whether the length of possession was only one of the factors to be considered (People v. Cole (1988) 202 Cal. App. 3d 1439, 249 Cal. Rptr. 601). The Use Note accompanying the 1996 version of CALJIC 12.06, applied here, advised the trial judge to determine the controlling authority. This dispute has since been resolved by People v. Martin (2001) 25 Cal.4th 1180, in which the Supreme Court rejected Cole, stressing that the defense is limited to "momentary or transitory possession of contraband for the purpose of disposal." (Id. at p. 1191, italics added.)
"The possession of an item is lawful where all the following conditions are met:
"1. The possession is based on neither ownership nor the right to exercise control over the item;
"2. The item is possessed solely for the purpose of abandonment, disposal, or destruction;
"3. The item is possessed for the purpose of terminating the unlawful possession of it by another person or preventing another person from acquiring possession of it; and
"4. Control is not exercised over the item for the purpose of preventing its imminent seizure by law enforcement.
"Length of time of possession is one of the factors that may be considered in deciding whether the defendant physically handled the substance solely for abandonment, disposal, or destruction."
The trial court rejected this request based on public policy grounds, holding that the potential for death or great bodily harm resulting from bringing firearms onto school grounds precludes a defense of momentary possession. Defendant asserts that the trial court erred in rejecting his request. On appeal, the parties dispute whether the momentary possession defense applies when the offense occurs on school grounds. We need not enter the thicket of public policy here. Even were we to assume that the defense might be available in some cases, the evidence did not support the instruction here. A defendant is entitled to instructions on a defense theory only if there is evidence sufficiently substantial to merit jury consideration. (People v. Watson (2000) 22 Cal.4th 220, 222, 990 P.2d 1031.)
By defendants own testimony there was no necessity for him to bring the gun onto campus in order to dispose of it, and he did not claim otherwise. He admitted he had no reason to bring the gun to campus and only did so to show it to Sanchez. Because defendants evidence failed to satisfy the "purpose of disposal" element, we need not address the issue of "momentary" possession.
II. Condition of Probation
Defendant contends that one of his probation conditions is impermissibly broad, vague, and infringes upon his First Amendment right to freedom of expression. He has waived his claim of error by failing to challenge the condition in the trial court.
The condition at issue is the 12th of 17 recommendations made by the probation department. The condition imposed states Defendant "shall not obtain any new tattoos and shall permit photographing of all tattoos that exist as of the date of this order." At the sentencing hearing, several other recommendations were discussed at length. In response, the court implemented modifications to those proposed conditions. At no time during this hearing did defendant object to the condition he now challenges.
As the court in People v. Welch (1993) 5 Cal.4th 228, 237, 851 P.2d 802 held, failure to challenge a probation condition in the trial court waives the claim on appeal. The court went on to explain that a "timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case." (Id. at p. 235.)
In the present case, despite ample opportunity at the sentencing hearing, defendant failed to challenge the condition now on appeal. The objection is waived.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Parrilli, J.