Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF141799. Christine V. Pate, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to Art. VI, § 6 of the Cal. Const.)
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Robin Derman and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
Following a jury trial, defendant Virgil Anthony Millon was convicted of two counts of unlawful possession of an assault weapon. (Pen. Code, § 12280, subd. (b).) The trial court declared the convictions to be misdemeanors and placed him on summary probation. The court imposed a restitution fine of $100 pursuant to Penal Code section 1202.4, as well as the applicable court security fee under Penal Code section 1465.8, and a criminal conviction assessment under Government Code section 70373. Defendant appeals, contending: (1) regardless of how many assault weapons he possessed, he could only be convicted of a single offense; (2) the trial court erred in instructing the jury; (3) his counsel was ineffective; (4) the prohibition against possession of assault weapons violates his Second Amendment right to bear arms; and (5) the reasonable doubt instruction is unconstitutionally flawed.
All further statutory references are to the Penal Code unless otherwise indicated.
Initially, defendant claimed the trial court erred in failing to instruct, sua sponte, as to the defense of registration on two out of the three possession-of-assault-weapon charges. However, in response, the People pointed out that there was insufficient evidence in the record to support the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 157 [a trial court’s duty to instruct sua sponte on particular defenses arises “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case’”].) Thus, in his reply brief, defendant withdrew his argument.
Assuming this court found merit to defendant’s claim of instructional error, defendant argued that his counsel was ineffective for failing to request an instruction on the defense of registration. Because defendant has withdrawn his argument of instructional error, his argument of ineffective assistance is moot.
I. FACTS
About 10:30 p.m. on February 12, 2008, Officer Francisco Hoyos of the Riverside County Police Department responded to a 911 hang-up call from a home on Trailway Drive in Riverside. Upon arrival, the officer heard arguing, looked in a window, and saw defendant holding Jane Doe (identified as his fiancée) in a “choke hold.” As defendant came outside, his left arm remained wrapped around Jane Doe’s neck. He let go of Doe, who ran to the officer, yelling, “He’s got a gun.” Defendant went back inside and then emerged from the house again. He cooperated with the officer’s commands and was taken into custody without incident.
Both defendant and Doe were members of law enforcement: Doe was a parole agent and defendant was a lieutenant with the California Department of Corrections and Rehabilitation. They had been fighting and were staying in separate bedrooms in the house. There was a locked closet, which contained various weapons and ammunition. The facts of their physical altercation are irrelevant to the issues on appeal; however, it was because of their physical altercation that Riverside police became involved. Following defendant’s arrest, Officer Hoyos conducted a protective sweep of the house. He located several firearms. The parties stipulated that three firearms, which met the definition of assault rifles under section 12276.1, subdivision (a)(1)(A), were seized from the house: (1) an “auto-ordinance” Thompson semi-automatic carbide.45-caliber rifle, (2) a Russian SKS 7.62- by 39-millimeter rifle, and (3) a Norinco 56S 17.62- by 39-millimeter rifle.
Defendant testified that he purchased a “Kel-Tec” weapon from a gun range in Ontario. He showed his driver’s license and filled out paperwork for the Department of Justice. He testified that he purchased the Thompson from Turner’s Outdoorsman in San Bernardino by showing his driver’s license and filling out paperwork for the Department of Justice. However, regarding the SKS and Norinco, he admitted he had possessed them for 13 years but had not registered them because they were not his.
II. CONVICTION OF TWO COUNTS OF POSSESSION OF AN ASSAULT WEAPON
Defendant contends that although he possessed multiple weapons simultaneously, he could be convicted only of a single count of possession under section 12280, subdivision (b), because the applicable statutory provision refers to the possession of “any assault weapon.”
In support of his argument, defendant argues that simultaneous possession of multiple items that violate a single code section constitutes only one offense. (People v. Rouser (1997) 59 Cal.App.4th 1065, 1073 [“‘any controlled substances’” in section 4573.6 (prohibiting the possession of controlled substances and related paraphernalia in penal institutions) “describes a single offense irrespective of how many controlled substances are possessed... at the same time and in the same place”]; People v. Harris (1977) 71 Cal.App.3d 959, 971 [only one violation for the simultaneous possession of contraband under the same statute]; People v. Kirk (1989) 211 Cal.App.3d 58, 65 [single violation of former section 12020, subdivision (a), for simultaneous possession of multiple weapons]; People v. Rowland (1999) 75 Cal.App.4th 61, 67 [single violation of section 4502 for simultaneous possession of three sharpened sticks]; People v. Bowie (1977) 72 Cal.App.3d 143, 156-157 [possession of 11 identical blank checks constitutes a single crime]; People v. Hertzig (2007) 156 Cal.App.4th 398, 403 [possession of multiple prohibited images on a computer constitutes single violation of the child pornography statute].) The People distinguish the authority relied upon by defendant with subdivision (a)(3) of section 12280.
A. Applicable Statute
Section 12280, subdivision (b), in relevant part, provides: “Any person who... possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison. However, a first violation of these provisions is punishable by a fine... if the person was found in possession of no more than two firearms in compliance with subdivision (c) of Section 12285 and the person meets all of the following conditions: [¶] (1) The person proves that he... lawfully possessed the assault weapon prior to the date it was defined as an assault weapon pursuant to Section 12276, 12276.1, or 12276.5. [¶] (2) The person has not previously been convicted of a violation of this section. [¶] (3) The person was found to be in possession of the assault weapon within one year following the end of the one-year registration period established pursuant to subdivision (a) of Section 12285. [¶] (4) The person relinquished the firearm pursuant to Section 12288, in which case the assault weapon shall be destroyed pursuant to Section 12028.” (§ 12280, subd. (b), italics added.) Section 12280, subdivision (a)(3) provides that “if more than one assault weapon... is involved in any violation of this section, there shall be a distinct and separate offense for each.” (§ 12280, subd. (a)(3), italics added.)
B. Analysis
While the case law cited by defendant supports his argument that simultaneous possession of multiple items that violate a single code section constitutes only one offense, we find the case law distinguishable. Unlike the statutes at issue in defendant’s cases, section 12280, which uses the word “any, ” has specifically provided that, “if more than one assault weapon... is involved in any violation of this section, there shall be a distinct and separate offense for each.” (§ 12280, subd. (a)(3), italics added.)
We find the language used in section 12280 analogous to that used in section 12001, subdivision (l), as applied to section 12020. Former section 12020, subdivision (a), provided that “‘Any person... who... possesses... any instrument or weapon of the kind commonly known as a... sawed-off shotgun... is guilty of a felony.’ (Stats. 1984, ch. 1414, § 3, pp. 4972-4973, italics added.)” (People v. Rowland, supra, 75 Cal.App.4th at pp. 64-65.) Thus, in People v Kirk, supra, 211 Cal.App.3d 58, the court held that defendant’s possession of two sawed-off weapons in violation of former section 12020, subdivision (a), constituted a single violation because “use of the word ‘any’ in conjunction with the words ‘instrument’ and ‘weapon’ rather than the word ‘a’ created an ambiguity in the statute so that the statute failed to provide a warning that separate convictions would result for each weapon simultaneously possessed. [Citation.]” (People v. Rowland, supra, at p. 65.) However, in 1994, “the Legislature amended section 12001 by adding new subdivision[]... (l). (Stats. 1994, First Ex. Sess. 1993-1994, ch. 32, § 1.) The new section[] provided as follows: [¶] ‘(l) For purposes of Section 12020, a violation of that section as to each firearm, weapon, or device enumerated therein shall constitute a distinct and separate offense.’ [¶] [This] new subdivision[ was] added with the express intent of overruling the holding in People v. Kirk ‘insofar as that decision held that the use of the term “any” in a weapons statute means that multiple weapons possessed at the same time constitutes the same violation.’ (Stats. 1994, First Ex. Sess. 1993-1994, ch. 32, § 5.)” (Ibid.)
Here, section 12280, subdivision (a)(3), contains the same language as that in section 12001, subdivision (l). Thus, the language in the statute was not ambiguous, and defendant was on notice that “if more than one assault weapon... is involved in any violation of [section 12280], there shall be a distinct and separate offense for each.” (§ 12280, subd. (a)(3).) Moreover, as the People point out, neither of the exceptions stated in subdivision (a)(3) of the statute applies. In reply, defendant claims that “by its terms, subdivision (a)(3) does not require that all of the elements of the subdivision (b) exception apply in order for prosecution to be limited to a single count based on the possession of multiple assault weapons. Rather, by its terms, subdivision (a)(3) provides for a single prosecution in cases of a first offense involving the possession of not more than two firearms. The qualifier, ‘as provided in subdivisions (b) and (c), ’ merely is a reference to the subdivisions that also deal with first-time offenders and the possession of no more than two assault weapons.” We disagree with defendant’s interpretation of the statute. The language is clear; a first time violator must meet all of the conditions.
III. CONSTITUTIONALITY OF SECTION 12280
Defendant contends that section 12280, subdivision (b), violates his right to bear arms under the Second Amendment to the United States Constitution. (District of Columbia v. Heller (2008) 554 U.S. 570, 635 (Heller) [ban on handgun possession in the home, along with rendering any lawful firearm in the home operable for the purpose of immediate self-defense, violates the Second Amendment].) He recognizes our colleagues in the Third District rejected a similar challenge in People v. James (2009) 174 Cal.App.4th 662, 676 (James).) Nonetheless, defendant claims the James court’s “definition of weapons typically possessed for self-defense by law abiding citizens is too limited and excludes from the purview of the Second Amendment categories of firearms the U.S. Supreme Court appears to have encompassed within the scope of its holding in Heller.” He argues that in Heller, “the court emphasized that the type of weapons that historically fell within the right to bear arms were those that the average citizen would take with him when called to serve as a member of the militia. [Citation.] Given the advances in firearms technology, it should not be surprising that men and women desirous of maintaining defensive weapons that could be converted to militia use would choose assault weapons over the commonplace and less effective handgun.” We disagree.
The Third District analyzed the same argument defendant now makes. (James, supra, 174 Cal.App.4th at pp. 674-677.) Citing Heller, as well as United States. v. Miller (1939) 307 U.S. 174 (Miller), the James court concluded assault weapons “are at least as dangerous and unusual as the short-barreled shotgun at issue in [Miller].” (James, supra, at p. 677.) In reaching this conclusion, the James court noted the right to bear arms protection in the Second Amendment does not extend to any type of weapon. (Id. at p. 674.)
The Miller court held that the Second Amendment did not protect an individual’s right to transport an unregistered short-barreled shotgun in interstate commerce. (Miller, supra, 307 U.S. at p. 178.)
As explained by the Heller court, “the type of weapon at issue [in Miller] was not eligible for Second Amendment protection: ‘In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.’ [Citation.]” (Heller, supra, 554 U.S. at p. 622.)
After discussing the types of weapons protected by the Second Amendment, the Heller court stated: “Read in isolation, Miller’s phrase ‘part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’ [Citation.] The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense. ‘In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.’ [Citation.] Indeed, that is precisely the way in which the Second Amendment’s operative clause [‘the right of the people to keep and bear Arms, shall not be infringed’] furthers the purpose announced in its preface [‘[a] well regulated Militia, being necessary to the security of a free State’]. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” (Heller, supra, 554 U.S. at pp. 624-625.) Rather, “the right secured by the Second Amendment is not... a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” (Id. at p. 626.) It is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense. The Second Amendment protects the right to possess a handgun in one’s home because handguns are a “class of ‘arms’ that is overwhelmingly chosen by American society” for the lawful purpose of self-defense. (Heller, supra, at p. 628.) Assault weapons are not. (James, supra, 174 Cal.App.4th at p. 676.)
Accordingly, we agree with the James court and conclude that section 12280, subdivision (b), does not prohibit conduct protected by the Second Amendment to the United States Constitution.
IV. CALCRIM NOS. 220 AND 222
The trial court instructed the jury in accordance with CALCRIM No. 220, which, in relevant part, provided that, “[i]n deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial.” Immediately thereafter, the jury received CALCRIM No. 222, which defines evidence as “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else [the court] told you to consider as evidence.” On appeal, defendant contends these instructions, when read together, “limited the jury’s determination of reasonable doubt to the evidence received at trial and precluded it from considering the lack of other evidence proving that [he] committed the crimes charged.” Thus, he argues the court prejudicially erred and violated his due process rights by instructing the jury pursuant to CALCRIM Nos. 220 and 222. He also asserts the actual language of CALCRIM No. 220 violates the due process clause because it fails to specify “that the prosecution’s burden is to prove ‘each element’ of the charged offense beyond a reasonable doubt.”
As the People point out, defendant raised no objections to the instructions below, and thus has forfeited the issue on appeal. (People v. Jenkins (2000) 22 Cal.4th 900, 1020.) In any case, the instructions are constitutional.
A. Standard of Review
“We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘“In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
B. Analysis
Defendant’s argument is not new. The identical argument (i.e., that instructing jurors to consider the evidence admitted at trial prohibits them from considering the lack of evidence on certain issues in determining guilt) has already been considered and rejected in numerous cases. (See, e.g., People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-1510; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) We join our fellow courts in declining defendant’s challenge. The sentence to which defendant objects, as in Westbrooks, “merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt.” (People v. Westbrooks, supra, at p. 1509.)
Likewise, in People v. Flores, the court said that “[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. [Citation.]” (People v. Flores, supra, 153 Cal.App.4th at p. 1093.)
Regarding defendant’s claim that he was deprived of due process because the jury instructions failed to instruct that “the prosecution [must] prove each element beyond a reasonable doubt, ” we agree that “the use of such language is appropriate [citation][;] [however, ] [D]efendant has not cited any California or United States Supreme Court authority holding that it is constitutionally required.” (People v. Ramos, supra, 163 Cal.App.4th at p. 1090 and fn. 7.) Moreover, our colleagues in Division One of this district have addressed this issue and rejected it. (People v. Riley (2010) 185 Cal.App.4th 754, 768-770.) We agree with their analysis: “The CALCRIM No. 220 instruction—which informs the jury that when the court says that the People must prove something, the People must prove it beyond a reasonable doubt, combined with the court’s instruction that the People must prove each element of the offense (which is given whenever the court instructs on the elements of an offense), adequately informs the jury that it must find that each element has been proved beyond a reasonable doubt.” (Id. at p. 770.) We conclude that CALCRIM No. 220, viewed together with the instruction on the offense of possession of an assault weapon, correctly informed the jury that the People bore the burden of proving each element of the crime beyond a reasonable doubt.
“We also note that the comparable CALJIC instruction (CALJIC No. 2.90), which for decades was the standard reasonable doubt instruction in our state, does not specify that each and every element must be proven beyond a reasonable doubt. It presently states: ‘A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his][her] guilt is satisfactorily shown, [he][she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him][her] guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’”
V. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., MCKINSTER J.