Opinion
G038269 (consol. with G038702)
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY BRUCE OKEEFE, Defendant and Appellant.
Mark S. Devore for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
The People charged defendant Timothy Bruce OKeefe with discharging a firearm with gross negligence (Pen. Code, § 246.3), a felony, and shooting within city limits (Los Alamitos Mun. Code, § 9.20.010), a misdemeanor. At the time of the alleged shooting, defendant was a police officer. The jury found defendant guilty of shooting in city limits, but failed to reach a verdict on the negligent discharge of firearm count. The court declared the negligent discharge count to be a misdemeanor pursuant to section 17, subdivision (b), and defendant pleaded guilty to the misdemeanor. As a result, defendant was prohibited under section 12021, subdivision (c)(1) from owning or possessing a firearm for a period of 10 years. Defendant petitioned the court to relieve him of the firearm prohibition, but the court denied his petition. On appeal defendant challenges (1) the courts denial of his motion to quash a search warrant, (2) the courts failure to sua sponte instruct the jury on unanimity, and (3) the courts denial of his postjudgment petition for relief from the firearm prohibition. Finding no error, we affirm both the judgment and the postjudgment order.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Dan Kelly, a police officer, was killed in the line of duty on July 18, 1999. Kelly, defendant, and Mark Van Holt were Maywood police officers at the time. In the ensuing years, Kellys family, friends and fellow officers annually met on July 18 to "commemorate his passing."
On July 18, 2005, defendant and Van Holt attended a large gathering in Kellys memory. Van Holt testified he and defendant left the group gathering around 11:00 p.m. and drove in separate vehicles to the Boondocks Bar. The two men "had a drink" at the Boondocks Bar before crossing the street to the Sportsman Bar where they each had at least two more drinks. Around 1:30 a.m., they "walked back across the street to [defendants] truck" and "got in." Van Holt sat in the passengers seat. The two men talked for about 15 minutes, during which time no one approached the vehicle and no "verbal altercation" with a third party took place. Van Holt told defendant he was heading home, and started walking toward his truck when he "heard two gunshots" "in rapid succession" coming from behind him. He turned and yelled at defendant to "`knock it off or `you idiot or something like that." Van Holt got in his own truck and drove home. In a telephone conversation between defendant and Van Holt the next day, defendant said "he was being dumb . . . and shouldnt have done what he did" and he "thought maybe he had discharged his weapon at home" in his backyard in memory of Kelly.
Alan Gavin, a "regular patron" of the Boondocks Bar, testified he lived with his girlfriend down the street from the bar and went alone to the bar around 10:30 p.m. on July 18, 2005, where he ordered a drink. Gavin saw defendant and another man drinking in the bar. Both men wore "white shirts with a big badge on the back that said, `In Loving Memory with a black stripe going through it." The two men left Boondocks. Later, at closing time, as Gavin prepared to lock the bars back door, the two men returned. Defendant said he wanted another drink and put a bystander "in a headlock." Gavin tried to close the door, but defendants companion "held it open with his foot." Gavin told defendant the bar was closing and advised him to talk to the female bartender. When the bartender refused to serve the two men, "they said, `Dont you realize were cops?" The two men left the bar. Gavin stayed and helped the bartender clean up. After about 30 minutes, as Gavin walked the bartender to her car in the parking lot, he heard defendant "call [him] to [defendants] car." Gavin walked to the SUV where defendant sat on the drivers side. Defendant said, "If we cant get a fn beer, can we get tacos or burritos?" (Gavin is of Mexican and Irish descent.) Gavin asked defendant, "What are you, a fn cop?" Defendants passenger, who was trying to hide a black-handled gun in his lap, told Gavin, "Heil Hitler." Gavin said, "F-U," and called the men "pathetic," "idiots," and other names. Defendant said, "What, do you want to do[,] end up getting shot?" Gavin replied, "Your guns dont scare me," and similar comments, "calling [defendants] bluff." Gavin "turned around and proceeded to leave," saying, "And by the way, nice mustaches." Defendant yelled, `"You better run home beaner." Gavins girlfriend, who was in their nearby apartment, heard the loud voices and phoned Gavin on his cell phone to ask "what was going on." Gavin, who was 50 feet away from defendants vehicle, heard a gunshot coming from the drivers side. He started "pacing pretty fast" and "heard a second shot fired." His girlfriend heard both shots. Upon reaching his home, Gavin phoned the police anonymously.
The record contains references to defendants vehicle as a car, a truck and an SUV.
In 1999 Kelly had been run over and killed by a Hispanic driver.
A real estate agent who occupied an office above the Boondocks Bar testified that upon his arrival at work on the morning of July 19, 2005, he found two bullet casings in the parking lot near some "steps to the back of the office."
Officer Jeffrey Travis testified that on July 19, 2005 he responded to a report of spent bullet casings found in the Boondocks Bar parking lot and located one spent shell casing there. Another officer found one more casing.
On August 22, 2005, Travis executed a search warrant on defendants residence and located "a 380 caliber Walther stainless steel semiautomatic pistol with black grips" in defendants master bedroom closet, along with two magazines for the gun, one of which had a grip extender. Also in the master bedroom, police found two t-shirts with badges on the back that said `"Policeman Maywood," `"In Loving Memory," and "July 18, 1999." Also discovered were "a spent 9mm casing and a live . . . 380 caliber bullet" in the center console of defendants pickup.
A forensic scientist opined "with absolute certainty" the "two cartridge cases were fired from the Walther pistol."
Defendant testified on his own behalf that on July 18, 2005, he and Van Holt left the Kelly commemorative dinner at about 11:00 p.m., had a drink at the Boondocks Bar, went to the Sportsman Bar, and around 1:45 a.m. returned to Boondocks. At Boondocks defendant asked "a couple gentlemen" at the back door "if they were still serving cocktails inside" and was told he "had to go inside and talk to the bartender," which defendant did. He denied that either he or Van Holt "put anybody in a headlock." The bartender told defendant she was no longer serving drinks. Defendant denied saying "anything like . . . were cops." Defendant and Van Holt then went to defendants vehicle where they talked for about 20 to 30 minutes "about the old days, [Kelly]," and the fire station where they once worked. Van Holt then went to his vehicle and the two men drove out of the parking lot in different directions. Defendant drove "directly home." Defendant denied "having a verbal altercation with [Gavin]." Defendants loaded "backup weapon" was in his vehicles center console. Neither defendant nor Van Holt fired a weapon in the Boondocks parking lot. But defendant did hear "two small pops" after Van Holt left defendants vehicle; defendant "wasnt really sure what [the sounds] were." His "windows were up" so he didnt hear Van Holt say, `"Knock it off, you idiot." The spent casings found in the Boondocks parking lot probably "fell out of [defendants] vehicle," since defendant kept a ziplock baggie of spent casings in the drivers side door compartment. Defendant had collected the casings during a recreational shooting trip and used them for reloads (where used casings are repacked with powder, a firing pin and a bullet) to cut costs. Over time the baggie had "started ripping" and defendant had, on a few occasions, noticed casings on his vehicle floorboard. After July 21, 2005 (when defendant was placed on administrative leave from the Maywood Police Department), he had some spare time, cleaned out his vehicle and threw out the spent casings; thus there was no bag of casings in his vehicle when the police searched it. Defendant denied telling Van Holt that he (defendant) discharged his weapon at home to commemorate Kellys death.
Three Maywood police officers testified defendant did save spent casings gathered from recreational trips in bags kept in his vehicle for reloading purposes.
DISCUSSION
The Court Properly Denied Defendants Motion to Quash the Search Warrant
On appeal defendant argues the information contained in the affidavit underlying the warrant "was stale by both the time the magistrate signed the warrant, and at the time of its execution." (The warrant was signed on August 16, 2005 and the search conducted on August 22, 2005.) The People counter that, "because a person of ordinary prudence would conclude that [defendant], a police officer, still had the gun that was registered in his name, in his possession, the information in the warrant was not stale."
Prior to trial defendant moved under section 1538.5 to quash the search warrant. The court denied the motion, finding the information in the affidavit was not stale at the time the magistrate signed the warrant or at the time it was served. The court noted the issue of stale information most often arises with "fungible" contraband, such as controlled substances, or with evidence that is likely to be moved "from one location to another," such as a gang-owned gun. In contrast, where the item sought is an officers registered gun, any concern the gun will "not be[] there at a later time [is] much less pronounced."
We review the applicable law. In comportment with our federal and state Constitutions, a search warrant may only be issued "upon probable cause, supported by affidavit, naming . . . the person to be searched . . . , and particularly describing the property . . . and the place to be searched." (§ 1525.) "[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." (Illinois v. Gates (1983) 462 U.S. 213, 232.) "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that . . . evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for . . . conclud[ing] that probable cause existed." (Id. at pp. 238-289.) "[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrates `determination of probable cause should be paid great deference by reviewing courts." (Id. at p. 236.) Here, the trial court upheld the magistrates finding of probable cause and therefore denied defendants section 1538.5 suppression motion. In reviewing the trial courts denial of defendants motion, we "`defer to the trial courts factual findings, express or implied, where supported by substantial evidence," but in "`determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, . . . exercise our independent judgment." (People v. Hulland (2003) 110 Cal.App.4th 1646, 1651.) Yet, like the trial court, we must treat the magistrates original determination of probable cause with great deference.
At issue here is whether the affidavit (and related search warrant request) was timely. An affidavit "must provide probable cause to believe the material to be seized is still on the premises to be searched . . . ." (People v. Mesa (1975) 14 Cal.3d 466, 470.) Information "remote in time" may be stale "unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. The question of staleness turns on the facts of each particular case." (People v. Hulland, supra, 110 Cal.App.4th 1646, 1652.) "`The length of the time lapse alone is not controlling since even a brief delay may preclude an inference of probable cause in some circumstances while in others a relatively long delay may not do so. Nonetheless, there are obviously some limits." (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393 [one-year-old information was stale in the absence of special circumstances suggesting illegal activity had persisted].) "If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale." (People v. Hulland, supra, 110 Cal.App.4th at p. 1652.) "Although there is no bright line rule indicating when information becomes stale [citation], delays of more than four weeks are generally considered insufficient to demonstrate present probable cause. (Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 434 . . .) For example, a delay of 34 days between a controlled sale of heroin and the officers affidavit for the search warrant has been held insufficient to establish present probable cause. [(Id. at pp. 433-434.)] Longer delays are justified only where there is evidence of an activity continuing over a long period of time or the nature of the activity is such as to justify the inference that it will continue until the time of the search." (People v. Hulland, supra, 110 Cal.App.4th at p. 1652.)
Defendant argues there "was no reason for the 27-day delay in obtaining the search warrant, and then delaying another week before execution." He contends "no evidence in the affidavit . . . establishes that the offenses originally charged . . . are the type of `continuing offense(s) for which the general four-week rule set out in [People v. Brown, supra, 166 Cal.App.3d 1166] and [Hemler v. Superior Court (1975) 44 Cal.App.3d 430] should be extended." He asserts that "while the [police] may have . . . been exercising `professional courtesy by interviewing and re-interviewing civilian witnesses before moving against a fellow sworn police officer, the [resulting] delay" caused material information in the affidavit to become stale.
Defendant bases his calculation of a 27-day delay on his assertion the police knew with certainty on July 20, 2005 that he was "a possible suspect who might possess . . . a firearm . . . of particular interest to the police in this case."
Defendant also contends: "Importantly, the probable cause affidavit fails to reveal even one attempt by law enforcement to speak with [defendant or Van Holt] before securing the warrant." Contrary to defendants assertion, the affidavit expressly states an officer spoke to defendant at defendants home on July 20, 2005, and advised him of the criminal investigation. Although defendant initially agreed to speak with the officer, he then requested the interview be terminated and refused to give a statement.
The People ascribe the 27-day delay to law enforcements diligent investigative efforts "to confirm the facts and the identities of the suspects before requesting the search warrant." These efforts are amply described in the chronology of witness interviews and police investigations recited in the affidavit. As noted above, defendant himself recognizes the efforts made by police, perhaps as a professional courtesy, to confirm him as a suspect before searching his home.
In any case, whether the delay was justified is not the critical issue. The crux of the staleness test is whether a person of ordinary prudence would believe the evidence to be seized was still on the premises at the time of the search. The People argue "the nature of the items sought [i.e. weapons and ammunition] was such that one would reasonably infer [defendant] was still in possession of those items one month after the incident." We agree. The affidavit disclosed that a .380 caliber pistol was registered to defendant and that defendant was a police officer. This was not a case involving a gang gun or "the often highly transitory activity of the sale of a [controlled] substance." (People v. Brown, supra, 166 Cal.App.3d at pp. 1169-1170.) Because this case involved a gun registered to a police officer, there was a fair probability the gun would be found in his home. The trial court properly denied defendants motion to quash the search warrant.
The Courts Failure to Instruct the Jury on Unanimity Was Harmless Error
Defendant challenges his conviction for shooting within Los Alamitos city limits, arguing the courts failure to sua sponte instruct the jury on unanimity created a risk that some jurors may have based their verdict on the parking lot shooting while others relied on the backyard shooting. The only evidence of the backyard shooting presented at trial was Van Holts testimony that defendant said he (defendant) "thought maybe he had discharged his weapon at home" in Los Alamitos "in memory of [Kelly]." Defendant denied he had done so.
The jury was instructed with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 301 as follows: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." The jury was also instructed that the elements of shooting in city limits were "(1) Defendant shot, fired or discharged a pistol, revolver or any firearm, [and] (2) At the time Defendant shot, fired, or discharged the firearm he did so in the City of Los Alamitos."
"[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A court has a sua sponte duty to give a unanimity instruction `"where the circumstances of the case so dictate." (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
We conclude the court erred by failing to give a unanimity instruction. Van Holts testimony, standing alone, provided evidence on which the jury could find a shooting took place in defendants backyard. But the error was harmless, whether considered under the Chapman v. California (1967) 386 U.S. 18, 24 standard (federal constitutional error must be harmless beyond a reasonable doubt) or the People v. Watson (1956) 46 Cal.2d 818, 836 test (reasonable probability of a more favorable result). Under either standard, the "erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors concerning the different specific acts proved is not reasonably possible." (People v. Napoles (2002) 104 Cal.App.4th 108, 119, fn. omitted.) Given the overwhelming evidence of the parking lot shooting presented at trial, compared to Van Holts isolated and arguably offhand reference to a backyard shooting, there is no reasonable possibility the jurors would have disagreed on which shooting underlay the shooting in city limits offense.
"There is a split of authority regarding the legal standard to be used to determine the effect of an erroneous failure to give a specific acts unanimity instruction." (People v. Smith (2005) 132 Cal.App.4th 1537, 1545.) Defendant argues the People v. Watson, supra, 46 Cal.2d 818 standard should be applied to determine whether failure to instruct on unanimity was prejudicial here.
Defendant argues "the impact of Van Holts accusation [about a backyard shooting] cannot be underestimated because both the prosecutor and defense counsel felt it made a sufficient impact upon the jury such that it was important enough to mention during closing arguments." We disagree. Although the prosecutor in his closing argument did mention the backyard shots, he focused on the parking lot shooting as the charged offense throughout his remarks.
At one point, he posited four possibilities for "what happened in this case:" (1) no shooting occurred, (2) a "mysterious" third party fired the shots, (3) Van Holt did the shooting, or (4) defendant was the shooter. In order to debunk the theory that a mysterious third party fired the shots in the parking lot, the prosecutor mentioned the backyard shooting. He argued (1) defendant and Van Holt did not react to the parking lot shooting by ducking for cover or taking any other action that might be expected if a third person had discharged the gun, and (2) defendants phone conversation with Van Holt the next day, including defendants statements "what he did the night before was dumb and stupid," he "shouldnt have done it," and "he fired more shots at home in memory of Dan Kelly," were inconsistent "with there being a third shooter." The prosecutor argued the only "logical," "reasonable" explanation among the four possible theories was that defendant was the shooter.
Within this context, he made his only other references to the backyard shooting: The defendant "doesnt know police are out there trying to figure out what happened, so he innocently tells his buddy I did something stupid the night before. I should[nt] have[] done it. And in fact he tells him he went home and shot more rounds in memory of Dan Kelly. [¶] . . . It makes sense the defendant did this because he also has a motive to do this. He is commemorating the death of Officer Dan Kelly and he gets instigated by an agitator named Alan Gavin. Given the night of the week, given the day of the year with Officer Dan Kelly, in an attempt to scare [Gavin], in an attempt to commemorate Dan Kelly he shoots his gun in the air, shoots his gun at home too, but most importantly his shell casings are at the scene . . . ." Viewed in context, the prosecutors references to the backyard shooting were intended to show defendant fired the shots in the parking lot. The focus of the entire trial and of the prosecutors closing argument were overwhelmingly on the parking lot shooting. Under these circumstances, the courts failure to instruct the jury on unanimity was harmless error.
The Court Did Not Abuse Its Discretion by Refusing to Relieve Defendant from Section 12021s Prohibition Against Possessing a Firearm
Defendant petitioned the court for relief from the 10-year prohibition on possessing a firearm imposed on him by section 12021, subdivision (c)(1). He argued denial of such relief would violate his right to equal protection of the laws. He also supplemented his petition with four commendations he had received for his good work as a Maywood police officer. The court denied the petition. On appeal defendant contends the "courts refusal to grant [him] the requested relief was an abuse of discretion" because section 12021 violates the equal protection clause of the federal Constitution.
Under section 12021, subdivision (c)(1), a person convicted of a misdemeanor listed in the statute may not own or possess a firearm for a period of 10 years after the conviction. Among the listed misdemeanors is negligent discharge of a firearm under section 246.3. An exception from the 10-year prohibition exists for a peace officer "whose employment or livelihood is dependent on the ability to legally possess a firearm" and whose predicate offense came under section 273.5 (willful infliction of corporal injury on spouse, former spouse, cohabitant, former cohabitant, or coparent), section 273.6 (intentional violation of domestic violence or stalking court order), or section 646.9 (stalking). (§ 12021, subd. (c)(2).)
The issue presented here is whether section 12021, by granting the possibility of relief to officers who suffer convictions under sections 273.5, 273.6 or 646.9, but not to those convicted under section 246.3, violates the equal protection clause. This issue was examined in People v. Conley (2004) 116 Cal.App.4th 566 (Conley) with the slight twist that the defendant there was convicted of misdemeanor battery under section 242. (Id. at p. 574.) The defendant in Conley argued "that interpreting section 12021, subdivision (c)(2) to permit relief for the three listed offenses but excluding relief for other offenses, including a violation of section 242, creates an arbitrary and irrational classification violating the equal protection clauses of the California and United States Constitutions." (Id. at pp. 568, 574.) The Court of Appeal identified the rational basis test as the proper standard for evaluating the defendants equal protection argument: "When, as here, the classification is not based on a suspect class and does not involve a fundamental right, we evaluate the classification under the `rational basis test and determine only if the classification `bears a fair relationship to a legitimate public purpose. [Citation.] We remain `[m]indful of the deference we must accord the Legislature under the rational basis standard [citation] and uphold a statutory classification against an equal protection challenge `if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." (Ibid.)
Applying the rational basis test, the Conley court concluded: "This statutory classification is supported by . . . a rational basis for treating differently the group of persons eligible for relief from other persons not similarly situated. The Legislature could reasonably conclude that a peace officer involved in a troubled domestic relationship who commits one of the listed offenses should be encouraged to plead guilty under an agreement for a probation/counseling disposition provided by sections 273.5, 273.6, or 646.9, and should not be dissuaded from seeking the benefits of the counseling contemplated by those sections by the concern that his or her guilty plea would necessarily carry a `career forfeiture penalty. [¶] The Legislature could also reasonably conclude that peace officers who engage in criminal behavior toward strangers are more culpable than those whose crimes occur in the context of a dysfunctional domestic relationship, and the former group should not be accorded the same rehabilitative opportunities provided to the latter group. Because we can conceive of `facts that could provide a rational basis for the classification [citation], the distinctions drawn by section 12021, subdivision (c)(2) do not offend equal protection." (Conley, supra, 116 Cal.App.4th at p. 575.)
Trying to distinguish Conley, defendant argues the misdemeanor offense of negligently discharging a gun under section 246.3 does not "involve physical contact" or "require the immediate presence of any other person." He thus suggests the behavior prohibited under section 246.3 is less culpable than "actually causing injury under [section] 273.5" or the physical contact involved in a section 242 battery. But as the People counter, "[t]here is every reason to prevent a police officer entrusted with the responsibility of carrying a gun and using that gun in a safe manner from possessing a firearm where he has discharged one negligently in a manner that could result in injury or death. . . . The Legislature could reasonably conclude that a defendant who discharges a firearm in a negligent manner, particularly where safe operation of a firearm is part of his job, is more culpable and/or less amenable to rehabilitation than a defendant who lashes out in a dysfunctional relationship."
Finally, defendant criticizes Conleys focus on peace officers in troubled domestic relationships as a rational basis for section 12021, subdivision (c)(2)s classification. He notes a section 646.9 stalking offense or a section 273.6 violation of court order can involve conflicts between strangers, as opposed to domestic disputes. But Conley recognized the section 12021, subdivision (c)(2) exception is "both overinclusive and underinclusive" because stalking perpetrators may be strangers to the victims, and because offenses not covered by the exclusion may involve an officers domestic dispute: "[T]he United States Supreme Court in Vance v. Bradley (1979) 440 U.S. 93 . . . , applying the rational basis test to reject an analogous challenge to a legislative classification, observed at pages 108-109: `Even if the classification involved here is to some extent both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it is nevertheless the rule that in a case like this "perfection is by no means required." [Citations.] The provision "does not offend the Constitution simply because the classification `is not made with mathematical nicety. . . ." [Citation] . . . [¶] Whether we, or the District Court, think Congress was unwise in not choosing a means more precisely related to its primary purpose is irrelevant." (Conley, supra, 116 Cal.App.4th at pp. 575-576.)
We agree with Conley that the classification created by the section 12021, subdivision (c)(2) exception is rationally related to a legitimate public purpose and does not violate the equal protection clauses of the California and United States Constitutions.
DISPOSITION
The judgment and postjudgment order are affirmed.
WE CONCUR:
BEDSWORTH, ACTING P. J.
FYBEL, J.