Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA291347, Stephen A. Marcus, Judge.
Hunton & Williams and Daniel C. Tepstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Robert David Breton, Deputy Attorney General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Kevin Redrick was convicted by a jury of two counts of possession of a deadly weapon (a writing pen knife and metal knuckles) in violation of Penal Code section 12020, subdivision (a)(1), one count of possession of a destructive device (" starburst rounds" ) in violation of section 12303, and one count of possession of unregistered assault weapons in violation of section 12280, subdivision (b). He was sentenced to state prison for a total of 16 months. Appellant appeals his conviction, asserting Detective Kowalsky was not qualified as an expert on starburst rounds and challenging the sufficiency of the evidence to support his conviction. We affirm the judgment of conviction.
All further statutory references are to the Penal Code unless otherwise specified.
FACTS AND PROCEDURAL BACKGROUND
Appellant, an avid weapons collector for almost 20 years, filed a complaint with the Los Angeles Police Department (" LAPD" ). He claimed, based on statements made by third parties, that unknown officers had conducted warrantless searches of his apartment and fired his firearms. Sergeant Hugo Gutierrez, a LAPD internal affairs officer, interviewed appellant at his apartment. Appellant told Sergeant Gutierrez that he kept about 30 guns in a safe in his apartment. Sergeant Gutierrez saw the safe's interior and contents from about 15 feet away when appellant opened the safe to retrieve a business card for Gutierrez and his partner. Appellant's complaint was later dismissed after the LAPD deemed it false.
Detective Jerry Kowalsky of the LAPD Gun Detail Unit conducted a follow-up investigation of appellant, his weapons and whether they were registered. After the investigation showed that appellant had no assault weapon registered under his name, Detective Kowalsky and other police officers visited appellant's apartment on October 4, 2005, to execute a search warrant. Appellant initially refused to unlock his safe, but he unlocked it after being told that someone was ready to drill it open. Inside the safe was a collection of a pen knife, a knife with metal knuckles, 13 handguns, 17 rifles, and about 40,000 to 50,000 rounds of ammunition. Detective Kowalsky seized eight unregistered rifles that he suspected qualify as assault weapons, the pen knife, metal knuckles, and ten starburst shotgun rounds of ammunition.
Kowalsky testified that he also recovered 800 pounds of ammunition in the storage facility outside the safe.
Detective Kowalsky notified the Bomb Squad when he recovered the starburst rounds. Three units of the Bomb Squad responded and transported and stored the starburst rounds in " an explosive magazine at a remote location."
At trial, appellant challenged Detective Kowalsky's qualifications as an expert on explosive devices. The trial court held an Evidence Code section 402 hearing and ruled that the detective was qualified to testify as an expert on explosive devices, including starburst rounds. Detective Kowalsky later testified that the ammunition that he recovered from appellant's safe were starburst rounds and were explosive.
Appellant testified that he purchased all of his guns for " historical, investment and collector's value." He further testified that he purchased the pen knife and the knife with metal knuckles from a mail-order catalog because he found them to be " unique" and they would add to his collection. He also testified that he purchased ten starburst rounds made by Cellier and Bellot, which he referred to as " starburst bird busters" or " bird bombs," from a catalog for the same reason.
DISCUSSION
1. Expert testimony
At trial, appellant contested the admissibility of Detective Kowalsky's expert testimony on starburst rounds. The trial court held an Evidence Code section 402 hearing and allowed Detective Kowalsky to testify as an expert on starburst rounds. Appellant contends that the trial court erred. He claims that Detective Kowalsky lacked sufficient knowledge, training or experience in the area of starburst ammunition to qualify as an expert and that the admission of the detective's expert testimony is prejudicial error. We disagree.
" A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates" (Evid. Code, § 720, subd. (a)), which " may be shown by any otherwise admissible evidence, including his own testimony." (Id., subd. (b).) " [W]hether a person qualifies as an expert in a particular case depends upon the facts of that case and the witness' qualifications. 'The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement. In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited.'" (People v. Kelly (1976) 17 Cal.3d 24, 39.)
A trial court has considerable latitude in determining expert qualifications, and its ruling will not be disturbed on appeal absent a manifest abuse of discretion. (People v. Bloyd (1987) 43 Cal.3d 333, 357; People v. Davenport (1995) 11 Cal.4th 1171, 1207.) " Such abuse of discretion will be found only where 'the evidence shows that a witness clearly lacks qualification as an expert.'" (People v. Chavez (1985) 39 Cal.3d 823, 828, italics in original.)
Appellant argues that several factors undermined Detective Kowalsky's qualifications as an expert on starburst rounds. He points to the fact that: (i) Detective Kowalsky admitted he had " never come across" starburst rounds prior to this case; (ii) he admitted he had no knowledge of the actual ingredients of the starburst rounds that were recovered from appellant's safe; (iii) the only knowledge, training or education that the detective had related to starburst rounds was his discussion with another officer who once recovered Dragon Breath rounds (a type of starburst rounds) and his own research following the recovery of the rounds at appellant's safe, including viewing the manufacturer's web site; and (iv) he never personally had fired starburst rounds. Appellant contends that Detective Kowalsky lacked sufficient qualifications as an expert on starburst rounds, though he agrees that the detective had " indisputable qualifications" to testify as an expert on some other forms of ammunition.
Kowalsky had previously testified in a case as an expert in grenade launchers and tracer ammunition.
On the whole, we cannot say that Detective Kowalsky " clearly lacks" the requisite qualifications. For 12 years, he had received specialized on-the-job, " hands-on" training on explosive devices from the Bomb Squad, training on improvised explosives through the LAPD, and training on explosive devices and assault weapons as part of the 40-hour Handgun and Shotgun Instructor Program. Detective Kowalsky testified that he had spoken about 10 times in the past year with members of the Bomb Squad who had encountered starburst rounds.
Kowalsky testified that he had assisted in the recovery of " a variety of destructive devices, including grenades and pipe bombs," and saw such recovery " almost monthly in some cases." He further testified that he " constantly work[ed] with [the] Bomb Squad . . . and [had] been trained by them [in] the understanding and recognition of explosives, including, but not limited to, low explosives, high explosives, [and] a variety of destructive devices and incendiary material that we recover[ed]." He also indicated that during his 12-year career with the LAPD, he had encountered and was familiar with many explosives and destructive devices, such as " pipe bombs, grenades, canon fuses, black powder, tracer ammunition, [and] incendiary ammunition." Further, he had had training on " standard bombs, [and] even nuclear, biological, chemical, which is part of an ongoing terrorism training program . . . and also dry-ice bombs, pipe bombs, [and] muriatic pool bombs." One half day of the 40-hour Handgun and Shotgun Instructor program covered assault weapons; the program also covered some ammunition.
Detective Kowalsky indicated that his job required that he be familiar with, and be able to recognize, " a variety of types of ammunition, including starburst, Dragon Breath, explosive, incendiary, [and] tracer." As a first responder, he had to make the initial determination as to whether a device was explosive or not before calling the Bomb Squad. He also indicated that he could recognize a starburst round when he saw it and knew how it was utilized. He had seen starburst rounds fired by SWAT teams on one occasion more than five years ago, though he was not sure whether they were of the same brand or model as those recovered in appellant's safe.
We agree with the trial court's ruling that although Detective Kowalsky " might not be the best expert[,]" he met " the definition of an expert" because he had " enough skill, knowledge, experience and training to put him beyond a common person," and his testimony would assist the jury. If a witness has met the definition of an expert, " the question of the degree of the witness's knowledge goes to the weight of the testimony rather than to its admissibility." (Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1443.)
2. Sufficiency of evidence
Appellant contends that his conviction for possession of a destructive device must be reversed because the evidence adduced at trial is insufficient to support the jury's finding that the starburst rounds recovered from his apartment were " destructive devices" within the meaning of Penal Code section 12301, subdivision (a) He argues that Detective Kowalsky's testimony that starburst rounds explode when fired is based on " mere speculation" and is not supported by " proper reasoning and evidence." We disagree.
" 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Smith (2005) 37 Cal.4th 733, 739.)
" 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' (People v. Jones (1990) 51 Cal.3d 294, 314.)" (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Smith, supra, 37 Cal.4th at p. 739.)
To support a conviction for possession of a destructive device under section 12303 of the Penal Code, the evidence must show that the defendant " exercised control over or the right to control a destructive device other than fixed ammunition of a caliber greater than .60 caliber[,]" and " knew of its presence and nature as a destructive device." (CALJIC No. 12.55.) The definition of a destructive device is broad and simple. A destructive device is " [a]ny projectile containing any explosive or incendiary material or any chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns." (§ 12301, subd. (a)(1).) The jury was so instructed.
Detective Kowalsky testified that Cellier and Bellot starburst rounds explode after being fired from a shotgun. Appellant contends that Detective Kowalsky's testimony was speculative and unsupported because he did not know the composition of the rounds and had never personally come across the rounds before this case. We do not agree.
The detective's testimony was based on his experience with various forms of ammunition and explosives and on research he had undertaken on the starburst rounds found in this case. Thus, his testimony was neither speculative nor unsupported. It is sufficient evidence to support appellant's conviction. (In re Robert V. (1982) 132 Cal.App.3d 815, 821 [" 'The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.'" ].)
An expert is permitted to rely on hearsay evidence to form his opinion.
We also note that Detective Kowalsky testified that it was LAPD policy that the Bomb Squad take possession of explosive shotgun rounds. He further testified that the Bomb Squad took possession of the starburst rounds in this case and stored them in an explosive magazine at a remote location. Detective Kowalsky was not permitted to bring them to court. The actions of the Bomb Squad support Detective Kowalsky's opinion that the starburst rounds were explosive.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.