Opinion
B310312
12-17-2021
THE PEOPLE, Plaintiff and Respondent, v. JAMES ROSSUM, JR., Defendant and Appellant.
Greg Wolff, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA477421 Craig J. Mitchell, Judge. Affirmed.
Greg Wolff, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
A jury convicted James Rossum, Jr., of a single count of possession of a firearm by a felon in violation of Penal Code section 29800, subdivision (a)(1). Although Rossum's attorney offered outside the jury's presence to stipulate to the fact that Rossum was a felon, the stipulation was not placed on the record in the jury's presence until after the People rested their case-in-chief. Rossum contends on appeal that the trial court erred when it denied his motion for an acquittal under section 1118.1 because at the time he made the motion there was no evidence before the jury that he had previously been convicted of a felony.
Further undesignated statutory references are to the Penal Code.
Because Rossum's offer to stipulate removed the fact of Rossum's status as a felon from dispute, we reject Rossum's argument and will affirm the trial court's judgment. (See People v. Bonin (1989) 47 Cal.3d 808, 848-849 (Bonin).)
BACKGROUND
Rossum and Wesley Nelson lived in separate structures on property owned by Rossum's father. On the morning of April 26, 2019, Nelson's employer arrived at the property and honked his car horn to summon Nelson to drive him to work. Nelson reported to police (and later testified) that as he walked to his boss's car, Rossum confronted him, pointed a gun at him, and threatened to shoot him. Nelson called police, who located a loaded gun with an obliterated serial number in Rossum's bedroom when they searched his home.
By amended information, Rossum was charged with criminal threats (count 1; § 422, subd. (a)), assault with a firearm (count 2; § 245, subd. (a)(2)), possession of a firearm by a felon (count 3; § 29800, subd. (a)(1)), and assault with a semiautomatic firearm (count 4; § 245, subd. (b)). The information also contained allegations under the "Three Strikes law" (§§ 667, subds. (b)-(j) & 1170.12), that Rossum had suffered a prior serious or violent felony conviction for purposes of sections 1170, subdivision (h) and 667, subdivision (a)(1), and that he had suffered 12 prior prison terms for purposes of section 667.5, subdivision (b).
The matter was tried to a jury in November 2020.
After jury selection and before opening statements, the trial court heard preliminary evidentiary questions outside the presence of the jury. As part of that hearing, the following exchange occurred:
"The Court: . . . The court will address 402 issues at this juncture. The court was alerted preliminarily that the People were going to ask for the court to rule on whether or not any prior convictions could be used to impeach Mr. Rossum should he elect to testify. Beyond that, the court is in need of counsel's instruction as to what you need me to address.
"[The People]: Yes, your honor. Count 3 in this case is, obviously, possession of a firearm by a felon. My intention is in no way to go into a specific conviction unless
"The Court: Let me interrupt you at this point. I did jury selection assuming that, [counsel for Rossum], your client would stipulate to the felony conviction so I don't have to go there; is that accurate?
"[Counsel for Rossum]: Yes.
"[The People]: Again, just because I want to make sure I don't say anything improper is . . . the court's ruling [that] I can mention that he has been convicted of a felony?
"The Court: Yes. And there will be part of the instruction indicating that he is prohibited under the law from being in possession of a firearm.
"[The People]: Thank you.
"[Counsel for Rossum]: To sanitize it further, I would ask that the date of the felony mentioned be provided, because I think remoteness in time can neutralize some of the prejudicial effect hearing just that statement that he's been convicted of a felony in the past would give them.
"The Court: Which felony are you seeking to - he has a host of them.
"[Counsel for Rossum]: I think the most recent one is
"The Court: 2016.
"[Counsel for Rossum]: 2016 for 10851
"The Court: Right. People, is that your election?
"[The People]: Yes. At this point, since we're not going into any specific charges, then I would propose the most recent one.
"The Court: That's fine. [¶] Next issue you wish the court to address.
"[Counsel for Rossum]: Let me think about that. 2016 sounds more close. Maybe my goal with that instruction is better met if there's no date actually given. So can I withdraw that request?
"The Court: You can.
"[Counsel for Rossum]: Thank you. [¶] Understood, [counsel for the People]? No date referenced?
"[The People]: Yes. That's understood.
"The Court: Next.
"[The People]: Nothing else as far as my motions.
"The Court: Okay. Do you want to hold off with respect to prior felony convictions used for impeachment purposes to the point if and when your client elects to testify?
"[Counsel for Rossum]: That's fine."
In its opening statement, the People told the jury: "Now, during the course of the trial, you are going to learn that the defendant is a convicted felon, and you're going to learn that by law he was not allowed to own or possess a gun, not even possess one, and that's by law."
During the People's case-in-chief, Rossum renewed his Evidence Code section 402 motion regarding his prior felony convictions. During discussions regarding those prior felony convictions, outside the presence of the jury, Rossum's counsel told the court: "There was a statement that [a witness] made that I objected to, and it was sustained referring to penitentiary. However, I think now the bell has been rung with respect to the fact that Mr. Rossum-and the jury may infer that he has spent time in prison. Also because they know that he has a felony."
At the close of the People's case, Rossum moved the court "to dismiss for insufficiency of the evidence, particularly with respect to count 2." The argument, in its entirety, was:
"[Counsel for Rossum]: Motion to dismiss for insufficiency of the evidence, particularly with respect to count 2. I don't believe the People have proved that the gun at issue was a semiautomatic firearm. It was based on the opinions by an officer who said it was similar to a semi-automatic. [¶] She testified that she never personally used that gun, fired that gun, or otherwise determined whether it was capable of firing a cartridge by pulling the trigger and, therefore, reloading . . . another cartridge into the barrel in one action as defined in the Penal Code.
"The Court: That motion is respectfully denied. The court does find that there is sufficient evidence for a reasonable trier of fact to return a verdict on this matter. So ruled."
Immediately thereafter, the following exchange occurred:
"[The People]: There was something, your honor. I don't believe that we ever actually entered into the stipulation on the record of the defendant being a felon. That's why I didn't enter into evidence a R.A.P. sheet, but I just wanted to make sure that we're going to put that on the record at some point.
"The Court: We will."
At the close of the evidence, the trial court stated: "It's my understanding that the defense is prepared to stipulate that Mr. Rossum, for purposes of count 3, has sustained a prior felony conviction that prohibits him from being in possession of a firearm. [¶] Is that accurate?" Counsel for Rossum responded: "That's accurate."
The People withdrew count 2 (assault with a firearm). The jury found Rossum not guilty of counts 1 and 4, and found him guilty of count 3-possession of a firearm by a felon. The People elected not to try the prior conviction and prison term allegations. Based on the jury's verdict, the trial court sentenced Rossum to three years in state prison.
Rossum filed a timely notice of appeal.
DISCUSSION
Rossum contends that the trial court erred when it denied his motion for acquittal under section 1118.1 because there was no evidence before the jury that Rossum was a felon when Rossum made the motion.
"When a trial court rules on a motion for a judgment of acquittal under section 1118.1, the standard the trial court must apply is the same as what the appellate court applies when reviewing the sufficiency of the evidence supporting conviction. A section 1118.1 motion is used to cull the '" 'few instances in which the prosecution fails to make even a prima facie case.'"' [Citation.] A court resolves a section 1118.1 motion by determining whether the prosecution presented sufficient evidence, measured from the moment the section 1118.1 motion is made, to permit the jury to resolve the issue. [Citation.] We review the trial court's determination de novo." (People v. Wilson (2021) 11 Cal.5th 259, 301.)
Rossum's arguments here focus entirely on whether there was evidence in the record when he made his section 1118.1 motion from which the jury could have concluded that he was a felon. He contends that because there was none, the evidence was insufficient for the trial court to do anything other than grant his motion to acquit.
Rossum acknowledges that he had offered to stipulate to the fact that he is a felon. But that stipulation was not entered into by the time he made his motion. "At the time the motion for acquittal was made," Rossum argues in his opening brief, "no evidence had been introduced that Rossum had been convicted of a felony and the parties had not yet stipulated to that fact."
We initially note that Rossum may have forfeited the only argument he makes on appeal. Rossum tells us in his briefs- correctly-that "[a] defendant need not articulate the grounds for his motion for acquittal, and there is no requirement that the motion be made in a particular form." (Quoting People v. Cole (2004) 33 Cal.4th 1158, 1213.) It is accurate that a defendant need not state the specific grounds when moving for acquittal. (People v. Belton (1979) 23 Cal.3d 516, 521-522.)
Although the People have not raised the issue here, it appears equally accurate that when a defendant states specific grounds in a section 1118.1 motion, he may not later raise other grounds on appeal. (See People v. Ceja (1988) 205 Cal.App.3d 1296, 1303-1304 (Ceja).)
"As the court in Belton notes, the purpose of section [1118.1] is to relieve the defendant of any responsibility for 'specifying the defects in the prosecution's case.' [Citation.] Extension of Belton to the present case does not serve this purpose. Rather, it merely would result in injecting 'yet more gameplaying in a criminal trial.' [Citation.]
"Unlike Belton, in the present case appellant directed his motion to [specific counts]. Appellant's construction would compel the conclusion that a section [1118.1] motion directed to specific counts or facts also encompasses undesignated counts or enhancements. Such an interpretation would impose upon a trial judge the obligation to divine all possible deficiencies in the evidence beyond counts and enhancements argued. We recognize the possible argument that under Belton a general section [1118.1] motion as to all counts and enhancements may place such a burden on the trial judge. However, we fail to see what salutary purpose is served by allowing a trial judge to be led by mistake or otherwise in the wrong direction by omitting specific allegations from the motion and including them in an evaluation of that motion on appeal." (Ceja, supra, 205 Cal.App.3d at p. 1303.)
"[W]here, as here, the court's attention is directed toward a specific deficiency in the evidence as to a count or enhancement it need not review the record for all possible deficiencies as to undesignated counts or enhancements. Rather, its review may properly be limited to the count or enhancement argued by counsel." (Ceja, supra, 205 Cal.App.3d at pp. 1303-1304.)
Rather than concluding that Rossum has forfeited his argument, however, we reject Rossum's contention on the merits.
Rossum's argument on appeal is that he offered to stipulate to an element of the crime for which he was found guilty, but because the stipulation was not entered into before the close of the prosecution's evidence, there was no evidence of that element in the record when he made his section 1118.1 motion.
Rossum's offer alone was sufficient to relieve the prosecution of the responsibility of producing evidence that Rossum was previously convicted of a felony. Indeed, Rossum's offer was sufficient to prevent the People from introducing evidence regarding Rossum's prior felony convictions; both the People's and Rossum's behavior at trial appears to have recognized and followed that well-established law.
" 'If a fact is not genuinely disputed, evidence offered to prove that fact is irrelevant and inadmissible under Evidence Code sections 210 and 350 respectively.' Through the offer of the defense, the facts covered by the proposed stipulation . . . were removed from dispute." (Bonin, supra, 47 Cal.3d at pp. 848-849, italics added.) Indeed, under our Supreme Court's precedent, Rossum could have objected-and did object in this case-to the introduction of any evidence in the People's case-in-chief regarding Rossum's prior felony convictions.
The record in this matter demonstrates that both the People and the trial court relied on Rossum's offer to stipulate throughout the trial, and specifically in making decisions about what evidence could be presented to the jury. The record also demonstrates that Rossum strategically and successfully availed himself of the benefits of his offer to stipulate, even to the point of preventing the prosecution from alluding to the timing of his most recent felony conviction (information that his counsel wanted to prevent the jury from hearing). Had Rossum ultimately reneged on his offer to stipulate, the trial court could have and presumably would have exercised its discretion under sections 1093 and 1094 to allow the People to reopen their case. (See People v. Riley (2010) 185 Cal.App.4th 754, 766.)
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, P. J. BENDIX, J.