Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. 05-6873803
SIMONS, J.
Appellant Shannon Michael Thomas was convicted after a court trial on three felony counts: possession of a machinegun (Pen. Code, § 12220) (count one); conspiracy to possess a machinegun (Pen. Code, § 182, subd. (a)(1)) (count two); and possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)) (count three). The court suspended imposition of sentence, and placed appellant on probation.
Appellant contends: (1) the trial court should have granted his motion to suppress the evidence of illegal drugs and the machinegun that the police seized from appellant’s truck after a traffic stop; (2) his convictions for possession of a machinegun and conspiracy to possess a machinegun must be reversed, because these convictions are not supported by sufficient evidence showing that appellant knew the machinegun in question was an illegal weapon; (3) the conviction for possession of concentrated cannabis must be reversed, because there was no proof by means of expert testimony that a “ball of hashish” seized from appellant’s truck contained concentrated cannabis; and (4) the abstract of judgment must be corrected in order to properly list the offenses as to which appellant was convicted, without regard to certain other allegations that were dismissed prior to trial.
We reject appellant’s first three contentions, but we agree with his last contention, and will order a remand to correct the record as to the offenses of which appellant was convicted.
Facts and Procedural History
We summarize the relevant facts as drawn from the hearing on appellant’s motion to suppress evidence and the subsequent court trial.
Evidence Regarding the Initial Traffic Stop and Search
On the morning of December 9, 2005, at about 9:30 a.m., Ukiah Police Officer Peter Hoyle was driving on State Street when he saw a Ford Ranger pickup truck driving southbound towards him, and Hoyle noticed that the driver and a front seat passenger in the pickup were not wearing their seat belts. In addition, the truck did not have a front license plate. Hoyle made a U-turn, stopped the truck, and contacted the two men inside. The driver was appellant and the passenger was Brian Cocks, who was subsequently named as a codefendant with appellant in the trial court.
Appellant’s codefendant, Cocks, entered a plea of guilty to one count charging illegal possession of a firearm, and is not a party to this appeal.
While Hoyle was still behind the truck, he saw “both of these gentlemen making furtive movements.” Hoyle saw “an unusual amount of movement initially by Mr. Cocks in the right front seat. I saw him leaning left and right and [he] appeared to lean forward at some point. And, then, I saw the driver also leaning to his left and appear to reach to his right.” As Hoyle approached the truck after stopping it, he saw that Cocks “appeared to be in the process of putting his seat belt on and that . . . it wasn’t clipped together.”
Appellant said he was driving his passenger Cocks to a court appearance at the Ukiah courthouse that morning, and that he had driven up from his home in Atascadero. However, Hoyle did not see any suitcases, duffel bags, traveling kits, or clothing, such as people would normally bring with them when traveling.
Soon after contacting the occupants of the truck, Hoyle realized that he knew Cocks from a previous arrest. Six months before, in late May 2005, another officer had attempted to make a traffic stop of Cocks, who was then riding a motorcycle. Cocks tried to evade the other officer by fleeing on his motorcycle and a pursuit took place. Hoyle assisted the other officer in making that arrest, and searched Cocks and his motorcycle on that prior occasion. Hoyle found multiple knives during the search, including an illegal switchblade. Hoyle found one knife on Cocks’s person, and another knife hidden in a pouch on the motorcycle. Hoyle also found some marijuana.
At the time of the traffic stop of appellant’s truck, Hoyle believed Cocks might have an outstanding warrant, and Hoyle ran Cocks’s name to check for outstanding warrants. However, it turned out that the warrant had been recalled or was no longer outstanding, and appellant had no warrants outstanding.
Significantly, Hoyle also knew from his previous contact with Cocks that he belonged to “a motorcycle group called the Molochs.” Hoyle knew that the Molochs were “not your Sunday school kind of guys” and were “a group that has ties with other criminal motorcycle gangs, i.e., the Hell’s Angels.” Hoyle suspected that appellant was also a member of the Molochs, because appellant was wearing a “Molochs” belt buckle, and there was a “Molochs” bumper sticker inside the vehicle. Hoyle described the Molochs as “an outlaw motorcycle gang” and others had reported to Hoyle that the Molochs “carried weapons.”
In light of all this information, including the fact that Cocks had been armed at the time of his previous arrest, and the furtive movements he had seen, Hoyle became concerned about his safety. Hoyle decided, for his own safety, to pat-search appellant and Cocks for weapons and to conduct a protective search or sweep of the inside of the truck for weapons. Hoyle called for a backup officer before proceeding, and Corporal Johnson arrived within three or four minutes. Hoyle removed appellant and Cocks from the truck and pat-searched them for weapons, finding none. Hoyle then conducted a weapons search of the inside of the truck, about five minutes after the start of the encounter. Hoyle first asked for permission for the search, but this was refused.
Upon opening the front right door of the truck, Hoyle almost immediately saw, in plain view on the front right floor, a plastic bag containing a small amount of marijuana, which he seized. Hoyle then found, on the driver’s side of the pickup, a gold colored Marlboro cigarette package. Inside this package was “an amount of loose marijuana as well as a ball of hashish.” The hashish weighed more than five grams.
Subsequently, Cocks claimed that the drugs belonged to him, and told Hoyle that Cocks had “a 215 card, ” i.e., a physician’s recommendation that he should use marijuana for health reasons, which Cocks carried for purposes of establishing legal compliance with Proposition 215, the proposition enacted by the voters that is the source of Health and Safety Code section 11362.5 approving the medical use of marijuana.
However, Hoyle was not satisfied with the explanation he received from Cocks. Appellant later admitted that he smoked Marlboro Lights in a gold package, which was the color of the package the drugs were found in, while Cocks said he smoked Marlboro Reds. In addition, the gold package had been found on appellant’s side of the car, not the passenger side where Cocks had been sitting.
After finding these illegal drugs, Hoyle suspected there would be more illegal drugs in the back of the truck, so he proceeded to search a toolbox fixed to the bed of the pickup. The toolbox was already unlocked and Hoyle opened it. Inside was a Browning machinegun. Hoyle had previously shot this same model of machinegun himself.
The entire encounter, beginning with the traffic stop and ending with the search of the toolbox and discovery of the machinegun, lasted about 11 minutes.
Hoyle had originally written out citations for the Vehicle Code offenses, but decided not to proceed with the documentation as to those minor offenses, after discovering the drugs and the machinegun.
Appellant was arrested and advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), which he waived. Appellant admitted he knew the machinegun was in the toolbox of his truck, but claimed he did not know much more than that. Appellant denied he was a member of the Molochs motorcycle gang, although he admitted associating with Molochs.
Hoyle also interviewed Cocks, who told Hoyle that both Cocks and appellant were members of the Molochs, and that Cocks knew the machinegun was in the truck. Cocks claimed the marijuana and hashish found in the truck were his. Cocks had a previous felony drug conviction, for a violation of Health and Safety Code section 11359.
Procedural History of the Charges and the Motions to Suppress
Appellant and Cocks were charged as codefendants in a felony complaint filed on December 12, 2005. The complaint charged both defendants with possession of a machinegun (Pen. Code, § 12220), conspiracy to possess a machinegun (Pen. Code, § 182, subd. (a)(1)), and possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)). In addition, the felony complaint contained other allegations, later dismissed at the request of the district attorney, charging that the possession of the machinegun and the conspiracy to possess the machinegun had been undertaken for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), and that both defendants were guilty of felony participation in criminal street gang activity. Finally, Cocks alone was charged under Penal Code section 12021 with being a felon in possession of a firearm, i.e., the machinegun.
Subsequently, Cocks filed a motion pursuant to Penal Code section 1538.5 seeking to suppress evidence seized from appellant’s truck, and appellant filed a joinder in that motion. At the evidentiary hearing, Hoyle testified in accordance with the summary of the evidence provided above. Commander Robert Nishiyama of the California Department of Justice also testified for the prosecution. Nishiyama described his expertise on the subject of automatic weapons and identified the type of machinegun seized from appellant’s truck as a Browning machinegun. The Browning originally had been designed during World War II, but had also seen some service in the Korean War and in Viet Nam. The weapon was properly described as a machinegun, because with one pull of the trigger it would fire repeated rounds until the gun ran out of bullets or the trigger was released. The right side plate to the machinegun was missing. Nishiyama had consulted with an agent of the Bureau of Alcohol, Tobacco and Firearms, and had sent the machinegun to a lab for testing, to see if it would operate without the side plate, but the results of those tests were still pending at the time of the hearing.
On January 19, 2006, the court denied the motion to suppress, finding that the constitutional rights of appellant and Cocks were not violated.
On February 2, 2006, an information was filed, in which appellant and Cocks were charged with three counts: possession of a machinegun (Pen. Code, § 12220), conspiracy to possess a machinegun (Pen. Code, § 182, subd. (a)(1)), and possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)). The previously dismissed street gang allegations were thus omitted. Cocks was also charged with being a felon in possession of a firearm.
Cocks renewed his motion to suppress in the superior court, and appellant again joined in the motion. The People filed opposition to the renewed motion. The renewed motion to suppress was also denied.
The Court Trial
The matter proceeded to a court trial as to the charges against appellant. At appellant’s court trial on March 28, 2006, Hoyle and Nishiyama testified, in accordance with their prior testimony at the suppression hearing. Nishiyama also testified that the machinegun could be restored to fully operable condition by replacing the side plate, or the gun could be fired without the side plate. In the lab, the machinegun had been fired by simply adding a “zip tie” to it, “like you would tie your garbage up with.”
Cocks testified for the defense that he was on the way to court in appellant’s truck when they were pulled over in a traffic stop. The machinegun in the truck, as well as the drugs, belonged to Cocks. Cocks had entered a plea of guilty to a weapons possession charge in connection with the machinegun, but had not pled guilty as to the concentrated cannabis charges. Cocks had shown the officer his “215” card to explain his possession of the cannabis.
The machinegun had a part missing, the right side plate, and Cocks had thought this made the machinegun inoperable and “perfectly legal” to possess. The gun was a “wall hanger” or just a “decoration.” Cocks was bringing it to Ukiah to give it to a “collector, ” who said he was named “Barney Rubble, ” and who was supposed to meet Cocks at a G.I. Joe’s parking lot.
Appellant testified in his own defense. Appellant lived in Atascadero and had been driving his friend Cocks to court in Ukiah when they were stopped. The baggies containing marijuana and “hash” found in appellant’s truck belonged to Cocks. The machinegun found in the toolbox of the truck also belonged to Cocks. Appellant knew the gun was there, and had asked Cocks if the gun was legal; Cocks said it was legal because it could not be fired. Appellant conceded he belonged to the Molochs motorcycle group, but claimed the machinegun had nothing to do with the Molochs.
After the court trial, appellant was found guilty on the three pending charges of possession of a machinegun (Pen. Code, § 12220), conspiracy to possess a machinegun (Pen. Code, § 182, subd. (a)(1)), and possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)). The court suspended imposition of sentence and placed appellant on probation.
Discussion
I. Motion to Suppress
Appellant first contends that his pretrial motion to suppress the evidence seized from his truck should have been granted.
A. Standard of Review
We review the trial court’s denial of a motion to suppress under well settled principles. (People v. Ayala (2000) 23 Cal.4th 225, 255 (Ayala); accord, People v. Ramos (2004) 34 Cal.4th 494, 505; see also People v. Alvarez (1996) 14 Cal.4th 155, 182.) We review express or implied findings of fact under the deferential substantial evidence standard. We review the trial court’s selection of applicable legal principles and the application of those principles to the facts independently. (Ayala, supra, at p. 255.)
B. Trial Court Properly Denied the Motion to Suppress
The police encounter with appellant and his truck began with a traffic stop and proceeded to a search of the truck based upon officer safety. “The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision. [Citations.]” (Whren v. United States (1996) 517 U.S. 806, 809-810.) For Fourth Amendment purposes, a traffic stop is treated as an investigatory detention, also known as a Terry stop. (United States v. Sharpe (1985) 470 U.S. 675, 682; Berkemer v. McCarty (1984) 468 U.S. 420, 439; see Terry v. Ohio (1968) 392 U.S. 1, 20, 27 (Terry).)
In this case, appellant does not directly dispute that Hoyle could properly make a traffic stop of the truck for the offenses of driving without wearing a seatbelt and without a front license plate. (Veh. Code, §§ 5200, 27315.) The record shows Hoyle made personal observations of the failure to use seat belts and the failure to display a front license plate, which were sufficient for a traffic stop.
Appellant, however, contends the traffic stop was unduly prolonged, and its original purpose was abandoned, in order to carry out an illegal search of the truck. He relies on the principle that an investigatory detention or stop must be temporary, and may last no longer than necessary to effectuate the legitimate purposes of the stop. (See Florida v. Royer (1983) 460 U.S. 491, 500.)
During a traffic stop, however, “the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop.” (People v. McGaughran (1979) 25 Cal.3d 577, 584.) Appellant does not dispute that a police officer may also order a driver who has been lawfully detained for a traffic violation to step out of the vehicle. (See Pennsylvania v. Mimms (1977) 434 U.S. 106, 111.) The police officer may similarly conduct a pat-search, the purpose of which is “not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .” (Adams v. Williams (1972) 407 U.S. 143, 146.) Under Terry, such measures undertaken for officer safety reasons are justified in limited circumstances: the officer must have “reason to believe that he is dealing with an armed and dangerous individual . . . . [T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.]” (Terry, supra, 392 U.S. at p. 27.)
In this case, the Terry conditions were met. Hoyle had properly stopped appellant for traffic violations. Hoyle recognized appellant’s passenger, Cocks, from a previous encounter several months before, during which Hoyle searched Cocks after he had attempted to evade the police, and discovered that Cocks was carrying knives on his person and vehicle. In addition, Hoyle knew that Cocks was associated with the Molochs motorcycle gang, and Hoyle had learned that the Molochs carried weapons. Significantly, appellant and Cocks had also made furtive movements, suggesting that they were hiding something in the truck. Thus, a reasonably prudent officer in Hoyle’s position would have concluded that his safety was threatened.
As to the search of appellant’s truck, the federal Supreme Court has applied Terry to allow police officers to conduct a search of the passenger compartment of a motor vehicle during the course of an investigative detention, if the officers have a reasonable suspicion that the occupants may be within reach of a weapon. (Michigan v. Long (1983) 463 U.S. 1032, 1049 (Long).) However, the high court cautioned that this did not mean that “the police may conduct automobile searches whenever they conduct an investigative stop.” (Id. at pp. 1049-1050 & fn. 14, italics in original; see also Knowles v. Iowa (1998) 525 U.S. 113, 118-119.)
In Long, shortly after midnight, police officers saw the defendant drive his car into a ditch in a rural area. They found the defendant in the car, apparently intoxicated, and they asked him for his license and registration. When the defendant eventually responded, he began walking toward the open door of his vehicle. As the officers followed him, they saw a knife on the floorboard of the car. The officers then detained the defendant and conducted a search of his car, which led to the discovery of marijuana, including a large amount in the trunk. (Long, supra, 463 U.S. at pp. 1035-1036.) The Supreme Court upheld the protective search of the car’s passenger compartment as reasonable under Terry, in response to officer safety concerns. (Long, supra, at pp. 1049-1052.)
A search of the interior of a stopped vehicle is justified under Long if the facts and circumstances known to the officer support at least a reasonable belief that the suspect is dangerous and may gain immediate control of a weapon. (Long, supra, 463 U.S. at pp. 1049-1052; accord, People v. Dolly (2007) 40 Cal.4th 458, 463; see also People v. Miranda (1993) 17 Cal.App.4th 917, 927.) Based upon the totality of the circumstances, the People argue that the brief search of the truck for weapons conducted here was supported by Hoyle’s reasonable suspicion that the truck might contain weapons. (See Long, supra, at pp. 1051-1052; People v. Bush (2001) 88 Cal.App.4th 1048, 1051-1052 (Bush).)
Bush is instructive. There, an officer stopped a car because it did not have registration stickers on its rear license plate. The officer checked the vehicle registration with the dispatcher and learned that the defendant’s license was suspended, and he had a history of violence and possession of weapons. After another officer arrived, the two officers, out of concern for their safety, removed the defendant from his car and searched the passenger compartment for weapons. A loaded handgun was found under the driver’s seat. The trial court found that the officer acted reasonably in conducting this protective search. (Bush, supra, 88 Cal.App.4th at pp. 1050-1052.) The Court of Appeal affirmed, finding the information about prior weapons possession and police contacts conveyed by the dispatcher constituted specific and articulable facts justifying the search of the passenger compartment. (Id. at p. 1053.) In addition, Bush concluded that such a search may occur even where a defendant is outside of his car, and under police control, because the defendant can be reasonably expected to return to the vehicle at some point. (Id. at p. 1052, citing Long, supra, 463 U.S. at pp. 1051-1052; see also People v. Miranda, supra, 17 Cal.App.4th at pp. 922, 930-932.)
In the present case, Hoyle’s prior contact with Cocks, plus the previous weapons possession by Cocks on that occasion, as well as the links to a gang known for carrying weapons, and the furtive movements by Cocks and appellant justified a brief protective search of the truck for weapons, before appellant and Cocks were allowed to return to the truck. (See Long, supra, 463 U.S. at pp. 1051-1052; Bush, supra, 88 Cal.App.4th at pp. 1052-1053; see also People v. Ledesma (2003) 106 Cal.App.4th. 857, 867-868.) This is true even though the pat-search of appellant and Cocks did not lead to the discovery of any weapons or any additional facts justifying the search of the interior.
Once Hoyle began his protective sweep, he immediately noticed a baggie of marijuana on the floor on the passenger side of the truck, and then found more marijuana and some hashish in a cigarette package on the driver’s side. The discovery of this contraband justified a search of the remainder of the truck, including the closed toolbox, for more drugs. (See United States v. Ross (1982) 456 U.S. 798, 823-825.) Upon opening the toolbox, Hoyle saw the machinegun, which he could validly seize.
Appellant disputes whether Hoyle’s knowledge regarding the involvement of Cocks and appellant in the Molochs would justify a search of the truck. He claims that “the only evidence regarding the motorcycle club was that it performed charitable functions.” But the record reflects that the Molochs were an “outlaw” motorcycle gang that was not composed of “Sunday school [types]” and that the Molochs “carried weapons.” The fact that the Molochs were known for carrying weapons would appear especially relevant to considerations of officer safety. (People v. Castellon (1999) 76 Cal.App.4th 1369, 1376-1377 [the defendant’s known gang membership relevant for considerations of officer safety during a traffic stop].) Moreover, the decision to search the truck was not based on gang involvement alone, but also on Hoyle’s previous arrest of Cocks and the officer’s observation of furtive movements in the truck as he approached it.
Appellant contends that Hoyle’s observations of those furtive movements was not determinative, because the movements could have had a more innocent explanation, such as simply trying to belatedly fasten a seat belt, or other innocent actions. (Cf. People v. Superior Court (Kiefer)(1970) 3Cal.3d 807, 828-829.) The fact that those furtive movements could have had a more innocent explanation did not require Hoyle to ignore them, however, especially when the furtive movements are properly considered together with the other information known to Hoyle. (See People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230 (Castaneda) [“Castaneda’s complaint that his conduct was open to a totally innocent interpretation does not invalidate the officer’s opposite interpretation”]; see also People v. Warren (1984) 152 Cal.App.3d 991, 997.)
Appellant suggests the overall duration of the encounter, lasting about 11 minutes from the time of the initial traffic stop, indicates the traffic stop was improperly prolonged, and its original valid purposes were abandoned. However, there was a valid reason for each successive step in the encounter, and no showing of an undue delay. For instance, after the initial traffic stop, it took Hoyle “about a minute maybe” to realize that he knew Cocks from a previous arrest and search. It took a “couple minutes at the most” to check on any possible outstanding warrants for Cocks and appellant. It also took “three or four minutes” for Johnson to arrive and provide backup. The search began “about five minutes” after the start of the traffic stop. Further, immediately upon entering the truck, Hoyle found marijuana, which justified his continued search for drugs in the gold cigarette box, and then in the toolbox in the back of the truck. The search of the vehicle itself took only about four minutes. Thus, an overall duration of 11 minutes for the entire encounter was not unreasonable under the circumstances. “There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly.” (People v. Russell (2000) 81 Cal.App.4th 96, 102; see also Castaneda, supra, 35 Cal.App.4th at pp. 1226, fn. 1, 1227-1228 [a nine minute duration for a police encounter was not unreasonable under the circumstances].)
Contrary to appellant’s claims, the record does not show an improper abandonment of the valid purposes of the original traffic stop. Hoyle originally wrote out citations for the Vehicle Code offenses, but later decided not to proceed with those relatively minor matters after he discovered drugs and the machinegun. If not for the officer safety concerns that arose during the traffic stop, Hoyle could have simply issued traffic citations and allowed the occupants to proceed on their way. The fact that officer safety concerns arose during the traffic stop does not suggest any improper abandonment of its original and valid law enforcement purpose. (See Long, supra, 463 U.S. at pp. 1049-1052; Bush, supra, 88 Cal.App.4th at pp. 1051-1053.)
Appellant relies on a number of other cases that are properly distinguishable. For instance, in People v. Lusardi (1991) 228 Cal.App.3d Supp. 1, 3-5, the officer conducted a valid traffic stop but then embarked on an investigation and a request for consent to search related to possible illegal drug activity, even though there was no reasonable suspicion to justify such measures. Similarly, in People v. Lingo (1970) 3 Cal.App.3d 661, 663-665, there were no asserted concerns about officer safety, and the officers unduly prolonged a traffic stop by interrogation about possible narcotics use, “based either on pure hunch or on mere routine police practice.” (Id. at p. 664.) Likewise, in People v. Medina (2003) 110 Cal.App.4th 171, 177, there was a valid traffic stop for a broken tail light; however, the officer admitted there was nothing “specific” about the driver that would have legitimately caused the officer to believe the driver was armed.
In the present case, by contrast, articulable facts unique to this particular encounter led to specific concerns about officer safety, justifying a protective sweep for weapons that led to the discovery of contraband items. (See Bush, supra, 88 Cal.App.4th at p. 1052; see also Long, supra, 463 U.S. at pp. 1050-1051; People v. Miranda, supra, 17 Cal.App.4th at pp. 922, 930-932; Castellon, supra, 76 Cal.App.4th at p. 1377.) The motion to suppress was properly denied.
II. Illegality of the Machinegun
Appellant next contends that his convictions for possession of a machinegun and conspiracy to possess a machinegun must be reversed, because the prosecution did not provide evidence showing beyond a reasonable doubt that he knew the characteristics of the machinegun which made it illegal. Appellant in this context relies on People v. King (2006) 38 Cal.4th 617, 627 (King), which he claims is “indistinguishable” on its facts from the present case.
King is readily distinguishable. King did not deal with a machinegun, nor with a claim that there was insufficient evidence that a defendant knowingly possessed a machinegun. Instead, King dealt with a rifle that had been sawed off so that it had an illegally short barrel, and the King decision dealt with jury instructions that failed to require the jury to find the defendant knew about the illegally short barrel of the gun. (King, supra, 38 Cal.4th at pp. 620-621.)
The Supreme Court found instructional error, because the instructions given did not require the prosecution to establish “knowledge of the shortness of the rifle” or the fact that the rifle was “unusually short.” (King, supra, 38 Cal.4th at pp. 620, 627.) However, the court also concluded this instructional error was harmless, because the defendant in King had actually seen the rifle, and testified he had “probably picked it up to look at it.” (Id. at p. 628.) As a result of this examination, the defendant in King would have been “necessarily aware” of the fact that the barrel had been crudely sawed off, and of the rifle’s “shortness.” (Ibid.; see also People v. Rubalcava (2000) 23 Cal.4th 322, 332 [illegal possession of a concealed dirk or dagger is not a specific intent crime, and requires only that the defendant knowingly carry a concealed instrument with knowledge that it “may” be used as a stabbing weapon]; cf. In re Jorge M. (2000) 23 Cal.4th 866, 876-888 [a conviction for possession of an assault weapon does not require a showing of actual knowledge regarding illegal aspects of the weapon, but requires a showing that the defendant knew or should have known of its illegal characteristics]; but cf. also People v. Corkrean (1984) 152 Cal.App.3d 35, 38-39 [a conviction for illegal possession of an altered semiautomatic rifle did not require proof of knowledge of its automatic firing capability, which had turned it into a machinegun].)
In the present case, we are dealing with a court trial, not a jury trial with jury instructions. We are also not dealing here with a rifle, which is generally legal to possess unless it is too short. Instead we are dealing with a machinegun, which would always be illegal for appellant to possess unless authorized by law as a result of a permit or otherwise. Here there was no contention or evidence that such a permit or other valid authorization existed. (See Pen. Code, §§ 12220, 12201, 12230.) Significantly, the statutory term “machinegun” is defined very broadly by section 12200, and it does not require that the weapon be complete or presently operational: The statutory ban applies to any “weapon which shoots, is designed to shoot, or can readily be restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. . . .” (Pen. Code, § 12200, italics added.)
Penal Code section 12220 provides, in pertinent part, that any person inside California who “possesses or knowingly transports a machinegun, except as authorized by this chapter, is guilty of a public offense . . . .”
Appellant testified at trial that he knew about the presence of the machinegun in his truck. He had asked his friend Cocks if the machinegun was legal; Cocks had said it was legal, because it could not be fired. Thus, appellant’s defense was not lack of knowledge that there was a machinegun in his truck, but rather that he had relied on his friend’s erroneous advice as to the legality of the machinegun, based on its alleged inoperability. However, this attempted defense failed as a factual matter, because the trial court found as a fact that appellant’s behavior at the time of the discovery of the machinegun was inconsistent with his claim that he thought the gun was legal. As the court observed, appellant and Cocks at that time “refused to say who put the weapon there . . . .” As the court also found, “I think they were aware . . . that it came within the definition and had the characteristics of an automatic weapon.” The trial court also correctly ruled that a machinegun is not required to be operable in order to meet the statutory definition, and by statute an illegal machinegun may consist simply of any “weapon which shoots, is designed to shoot, or can readily be restored to shoot . . . .” (Pen. Code, § 12200, italics added; People v. Tallmadge (1980) 103 Cal.App.3d 980, 987-988 (Tallmadge) [a machinegun need not be completely assembled in order to be illegal, if it may be readily assembled].)
Further, the machinegun had been fired in the lab, by simply adding a ziplock tie to it, without the need to replace the missing side plate. As previously noted, there is no claim that appellant was not aware of the presence of a machinegun in his truck, and the machinegun is not the sort of small item that could simply have been overlooked. The trial court described this machinegun at the conclusion of the trial as being a “big weapon” that “looks to be about three feet long . . . .”
In short, appellant relied at trial on his asserted belief in the inoperability of the machinegun, but the trial court properly found as a factual matter that this asserted belief was not genuine, because it was inconsistent with appellant’s behavior at the time of the discovery of the machinegun. Further, in any event the alleged inoperability of the gun would not constitute a valid legal defense, since the gun could be readily restored to operability. (See Pen. Code, § 12200; Tallmadge, supra, 103 Cal.App.3d at pp. 987-988.) The convictions are properly supported by substantial evidence. (See Tallmadge, supra, at p. 987.)
III. Evidence Showing Appellant Possessed Concentrated Cannabis
Next, appellant contends his conviction for possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)) must be reversed because there was no proof by means of expert testimony or test results showing that the “ball of hashish” seized from appellant’s truck contained concentrated cannabis. Appellant relies in this context on People v. McLean (1961) 56 Cal.2d 660 (McLean) and In re Waylon M. (1982) 129 Cal.App.3d 950 (Waylon M.), which he contends are “essentially indistinguishable.” We disagree.
In McLean, a minor who was inexperienced with the effects of marijuana testified as a purported expert, despite a proper objection based on her lack of expertise, that the substance she had smoked was marijuana. (McLean, supra, 56 Cal.2d at p. 663.) The California Supreme Court held this was error, because the witness lacked the necessary expertise to testify as an expert over a proper objection. (Ibid.)
In the present case, by contrast, there was never any objection at all to the testimony by Hoyle, Cocks, and appellant himself, concerning the fact that the gold cigarette package found near appellant’s seat in his truck contained hashish. As there was no objection to this testimony at trial, its admission cannot be urged as error on appeal. (Evid. Code, § 353, subd. (a).)
Further, the trial court could properly consider and rely on this uncontested testimony to determine that the ball of hashish contained concentrated cannabis. The term “concentrated cannabis” is defined by statute to mean “the separated resin, whether crude or purified, obtained from marijuana.” (Health & Saf. Code, § 11006.5.) The term “marijuana” is in turn defined as including “all parts of the plant Cannabis sativa L. . . . .” (Health & Saf. Code, § 11018.) The colloquial terms “hashish” and “hash” indicate the presence of the cannabis containing substance banned by the formal statutory term, “concentrated cannabis.” (Hooks v. State Personnel Bd. (1980) 111 Cal.App.3d 572, 579 [“Hooks’ contention that Health and Safety Code section 11357 refers to concentrated cannabis and makes no mention of hashish misses the mark. ‘Concentrated cannabis’ means the separated resin obtained from marijuana (Health & Saf. Code, § 11006.5), and consequently includes hashish.”]; accord, 86 Ops.Cal.Atty.Gen. 180, 182 (2003); see also People v. Haybron (1980) 108 Cal.App.3d 31, 34, 40.)
Crucially, appellant did not dispute at trial that the ball of hashish contained concentrated cannabis. Rather, he simply claimed he did not possess the hashish. This was a factual contention that could be properly rejected by the trial court, as the finder of fact. (See People v. Palaschak (1995) 9 Cal.4th 1236, 1241-1242 (Palaschak) [all elements of the crime of illegal drug possession may be established by circumstantial evidence]; People v. Chrisman (1967) 256 Cal.App.2d 425, 433-434 [limiting McLean to its own facts where a naive user was not properly qualified to testify as an expert over a timely objection, and allowing proof by other means when the substance is no longer available for testing, or when its illegal nature is shown by other evidence].)
Here, the hashish was discovered on appellant’s side of his truck, in a cigarette box for a brand that he, and not Cocks, favored. The trial court found that both Cocks and appellant had jointly possessed the hashish, and this finding is amply supported by substantial evidence. (See Palaschak, supra, 9 Cal.4th at pp. 1241-1242.) The trial court could also reasonably conclude, from the undisputed testimony of Hoyle, Cocks, and appellant concerning the “hashish, ” that appellant had possessed concentrated cannabis. Thus, McLean is not on point here.
Appellant also relies on Waylon M. There, an arresting officer testified that a substance seized from the defendant “resembled hashish, ” but the officer did not testify that the seized substance actually was hashish. (Waylon M., supra, 129 Cal.App.3d at p. 952, italics added.) Consequently, in Waylon there was insufficient evidence that the substance actually contained hashish, so as to support a conviction for possession of concentrated cannabis. (Ibid.)
In the present case, by contrast, the testimony showed not that the substance seized from the gold cigarette box simply “resembled” hashish, but that it was hashish. This testimony came not only from Hoyle, but also from Cocks and appellant himself. The undisputed testimony that hashish was found in the truck also was coupled with evidence that Cocks had a “215” card, which purportedly allowed him to legally possess cannabis products such as the hashish. (See Health & Saf. Code, § 11362.5; 86 Ops.Cal.Atty.Gen. 180, 182 (2003).) Later, the substance that Hoyle identified as a “ball of hashish, ” and Cocks and appellant identified as “hash” belonging to Cocks, was also admitted into evidence without any objection as to its identification, or any assertion of a need for expert testimony. Thus, the evidence admitted without objection at trial established that the substance in question was hashish, and there was substantial circumstantial evidence that appellant had illegally possessed it. (See Palaschak, supra, 9 Cal.4th at pp. 1241-1242.)
Appellant, however, insists that without expert testimony and test results on the substance, there was insufficient evidence that the substance contained hashish. In a case where the illegal nature of the substance was not admitted, or was unclear or disputed, we might agree. Significantly, in the present case, testimony by prosecution and defense witnesses had been admitted without objection that identified the substance in question as hashish.
IV. Correction of Record Regarding the Convictions
Finally, appellant argues that the record of the judgment of conviction must be corrected to properly list the three offenses as to which appellant was convicted, without listing two other matters relating to alleged criminal street gang activity that were originally charged under Penal Code section 186.22, subdivisions (a) and (b)(1), but which were dismissed prior to trial. The Attorney General concedes this error, and we will remand for correction of the record of the convictions in this regard.
Disposition
The judgment of conviction is affirmed. The matter is remanded to the trial court with instructions to correct the record of the judgment of conviction to list only the three offenses of which appellant stands convicted, as set forth in this opinion.
We concur. JONES, P. J., NEEDHAM, J.