Opinion
C086381
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. TORN CHOW SAECHAO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17F3845)
A jury found defendant Torn Chow Saechao guilty of being a felon in possession of a firearm and illegally possessing ammunition with a prior conviction, and the trial court found that defendant had a prior strike and two prior prison terms. The court sentenced defendant to state prison for eight years.
Defendant's sole contention on appeal is that the trial court should have given a unanimity instruction because the evidence showed two distinct instances when he could have possessed the firearm and ammunition. After examining the record, we conclude that a unanimity instruction was not required because the prosecutor sufficiently elected the instance on which the charges were based and there is no reasonable possibility that the jury believed that one of two times of possession could serve as the basis for a conviction. We therefore affirm the judgment.
FACTS AND PROCEEDINGS
In the early morning hours of July 20, 2017, defendant was driving alone in his car in Shasta County. The highway patrol stopped him because the reflective coating on his license plate had been removed, which constituted a routine mechanical violation. The traffic stop was recorded on the officers' dashcam video, known as an MVAR system, and was played for the jury. Defendant failed to follow the officer's instructions to get out of the car.
At the time, defendant was on postrelease community supervision. Officers searched the car and found a pellet gun in the front passenger compartment area and a loaded rifle on the back seat. A backpack and miscellaneous trash was also found in the back seat. No moving materials, such as boxes, were found in the car.
Defendant was arrested and an August 2017 information charged defendant with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)), carrying a loaded firearm in a public place (§ 25850, subd. (a)), and illegally possessing ammunition with a prior conviction (§ 30305, subd. (a)(1)). It was further alleged that defendant had a prior strike (§ 1170.12) and two prior prison terms (§ 667.5, subd. (b)). Defendant denied the charges and enhancements.
Undesignated statutory references are to the Penal Code.
At trial, Officer Federico Lazo testified to the circumstances of the vehicle stop, and to finding the rifle in the back seat of defendant's car on July 20, 2017. During his testimony, the prosecutor introduced still photographs of the physical evidence and video recorded from the officers' dashcam showing the stop and discovery of the rifle.
Defendant's mother testified on his behalf. According to her, the rifle belonged to her husband, who was mentally and physically disabled. They kept the rifle in their bedroom in their former Sacramento home, which defendant shared with them after his wife filed a restraining order against him. The family moved to Shasta County the day defendant was arrested. Several family members and friends helped them move, and some of their items were placed in defendant's car. She did not know who put the rifle in defendant's car.
The jury found defendant guilty of being a felon in possession of a firearm and illegally possessing ammunition. Defendant waived a jury trial on the enhancements and the court found all enhancement allegations true. The court sentenced defendant to eight years in state prison, calculated as follows: the upper term of three years for the felon in possession offense, doubled to six years for the strike prior, plus consecutive terms of one year for each of the prison prior enhancements. The court stayed the sentence on the illegal possession of ammunition offense under section 654. Defendant timely appealed.
Following the close of evidence, the court granted defendant's motion to dismiss count 2, carrying a loaded firearm in a public place, for insufficient evidence. --------
DISCUSSION
Defendant contends that the court erred in failing to give a unanimity instruction because the evidence showed two discrete incidents where he could have possessed the firearm and ammunition: in his parents' house in Sacramento and in his car when he was pulled over by law enforcement in Shasta County. The absence of the instruction, he argues, violated his federal and state constitutional rights. We disagree.
"In a criminal case, a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo); see also People v. Wolfe (2003) 114 Cal.App.4th 177, 183-184.) This means that each individual juror must be convinced, beyond a reasonable doubt, that the defendant committed the specific offense with which he or she is charged. (Russo, at p. 1132.) "The requirement of unanimity as to the criminal act is intended to eliminate the danger the defendant will be convicted even though there is no single offense all the jurors agree the defendant committed." (People v. Zavala (2005) 130 Cal.App.4th 758, 768.)
When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes, or the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act. (Russo, supra, 25 Cal.4th at p. 1132.) The unanimity instruction must be given sua sponte even if the defendant does not request the instruction. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) A unanimity instruction is not required, however, when the prosecutor clearly informs the jury in opening and closing argument which act the People were electing as the basis of the criminal offense. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.)
In this case, a unanimity instruction was not required because the record shows that the prosecutor clearly informed the jury in closing argument that the People were electing the firearm and ammunition possession in defendant's car in Shasta County on July 20, 2017, and not any potential possession that might have occurred in Sacramento when defendant lived with his parents. This election obviated the need for a unanimity instruction. (Russo, supra, 25 Cal.4th at p. 1132.)
During closing, the prosecutor initially explained to the jury that "[t]he evidence shows beyond a reasonable doubt that the first element was met. The defendant possessed the firearm. You have the stills. You have the stills from the MVARS video that the CHP had running when these events occurred. [¶] You have Officer Lazo, and this is Exhibit 10, but you have all the photographs . . . [¶] . . . we have Officer Lazo removing a loaded magazine from the firearm that he took from the back seat of the defendant's car, a piece of evidence. [¶] You are also fortunate enough to have a video of the event as well, realtime video of what occurred." (Italics added.) Thus, the prosecutor specifically encouraged the jury to review Officer Lazo's testimony, the dashcam footage taken from the patrol car that pulled defendant over in Shasta County, and the photographs of the rifle in the back seat of the car. He did not rely on any events in Sacramento to show he had satisfied his burden of proof.
Furthermore, the prosecutor stated that even though it was reasonable to infer from defendant's mother's testimony that defendant had access to the firearm when he lived with his parents in Sacramento, he emphasized that "this case is not about the defendant's possession or nonpossession of that firearm in Sacramento. [¶] This case is about the defendant being caught by law enforcement with the loaded .22 Ruger bolt-action rifle here in Shasta County. That's what this case is about."
Because the prosecutor specifically informed the jury that the criminal charge was based on defendant's possession of the firearm and ammunition in his car in Shasta County and not on anything in Sacramento County, this case differs from People v. Melhado (1998) 60 Cal.App.4th 1529, on which defendant relies. There, the prosecutor referenced three potential instances of a criminal threat without explicitly electing one instance as the basis of the charge like the prosecutor did here. (See, e.g., id. at pp. 1535-1536 [prosecutor's closing argument potentially emphasized one event over the others, but referred to all three events and did not inform the jury that he sought conviction on only one event].) For the same reason, defendant's reliance on People v. Hernandez (2013) 217 Cal.App.4th 559, 567, where the prosecutor never elected which of the two incidents was the basis of the firearm and ammunition possession offenses, is inapt.
Defendant argues that the election was ineffective because the prosecutor referred to him possibly having access to the gun in his parents' bedroom while he lived with them in Sacramento. As explained above, however, the record shows that the prosecutor specifically emphasized that the case was not about any potential possession in Sacramento. The record does not support the conclusion that the prosecutor conveyed the impression to the jury that one of two times of possession could serve as the basis for a conviction. (People v. Jantz, supra, 137 Cal.App.4th at p. 1292.)
Finally, we decline to adopt the rule urged by defendant that the prosecutor's election is never sufficient to negate the need for a unanimity instruction. Our Supreme Court has held otherwise, and we are bound to follow that decision. (See, e.g., Russo, supra, 25 Cal.4th at p. 1132; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [decisions of Supreme Court are binding on lower tribunals].)
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BUTZ, J. MAURO, J.