Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF1993, Michael M. Johnson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant raises numerous issues on appeal. Each is discussed below. We reject all but two of his contentions. We affirm in part and reverse in part.
I
FACTS
A jury found defendant Ronald Turner guilty of numerous counts involving destructive devices and threats. The court sentenced him to 17 years in state prison.
The verdict states:
Background
Jill Turner married defendant in 1992. They have two minor children.
Defendant was in the business of cable installation. Jill Turner said defendant “worked on computers all day long, and so software and hardware he just knew from the business of cable installation that he did and from pictures of some of his jobs he’d show me and the stories he told me, and our computer at home he always tinkered with and knew what was going on. He understood the computer systems.”
In September 2006, defendant sent Jill Turner “text messages and they were inferring that he was going to kill himself, and I got very scared. And he was arrested and placed in a hospital and I went and got a restraining order and then he got out and went and got the kids without my knowledge and I had to go and get him served with a restraining order to get the kids back.” Around the same time and just prior to Jill Turner obtaining the restraining order, she returned in the evening to find defendant “had smashed one of our glass wedding pictures next to [her] bed with a hammer, a mallet.”
The restraining order was for one year, beginning on October 13, 2006. At the end of the year, the court extended it “for another period.” While the restraining order was in effect, the only communication Jill Turner and defendant had “was via e-mail and text messages and phone calls, but it was to only have been between [the two of them] for the kids, for anything dealing with them.” According to Jill Turner, defendant’s “e-mails and voice mails came almost on a daily basis, and they were very negative and very threatening and scary.”
While the restraining orders were in effect, Jill Turner received hundreds of e-mails from an address she recognized as belonging to defendant. She reported these contacts to the Huntington Beach Police Department. One message said: “Don’t think that I won’t call or pay you a visit.” Another said: “If you submit one more complaint to the corrupt pigs in that city, you will be sorry.” She also received text messages from defendant. One text message said: “You have gone too far.”
Jill Turner filed for dissolution of the marriage. During a court appearance on October 13, 2007, defendant and Jill Turner stipulated to a custody evaluation by an expert and that defendant would have limited monitored visitation with their children. The divorce was final on October 19, 2007. On that same day, while Jill Turner was leaving the Westminster courthouse, defendant telephoned her. The telephone number that showed on Jill Turner’s cell phone was her work number at Makar Properties. When she answered the call, defendant said: “Now you should be scared.”
Jill Turner’s Family Law Lawyer Brian Seastrom
Jill Turner retained lawyer Brian Seastrom to represent her. Seastrom represented her from approximately October 2006 until March 2008, first for the domestic violence matter and later for the dissolution of marriage.
Seastrom described defendant’s demeanor as “extremely hostile, threatening, volatile, unpredictable.” He received a series of e-mails from defendant. One message defendant wrote to Seastrom in the e-mail states: “Keep in mind peastrom court orders are only enforceable after they have been violated.” Another states: “... I will be at your office this week and intend to call you out. I think it is time for you to get a good old fasion ass whoopen. Now that is worth getten arrested for.” Most of the electronic messages refer to Seastrom in expletives and contain other filthy language.
Seastrom’s reaction to the messages was that he “was literally waiting for Mr. Turner to walk through my office doors at any given time... and hurt somebody significantly, if not kill them.” When there were court appearances, Seastrom, another lawyer in his firm and Jill Turner “all left together, parked far away from the courthouse and watched [their] back[s]....”
During defendant’s deposition in the divorce action on July 24, 2007, Seastrom asked him why he kept violating the restraining order. Defendant said it made him feel good to violate it.
Jill Turner’s Real Estate Agent Maria Xanthakis
Around June 2008, Jill Turner hired real estate agent Maria Xanthakis to sell her home. Jill Turner’s home on Cape Cottage in Huntington Beach was listed on Xanthakis’s Web site. On June 26, 2008, Xanthakis called Jill Turner to inform her that someone had accessed her Web site’s portrayal of the Cape Cottage home and logged in a new password, “Kill Jill.” The e-mail address used to create the new password belonged to defendant.
Defendant’s Friend Matthew Marchman
In March 2008, Matthew Marchman met defendant when Marchman sought out his help to move a piano. During that first meeting, defendant “went into depth... about his anger and resentment toward his wife.” Marchman said it was “clear he was angry about it and was intending to do something about it.” Marchman felt empathy for defendant, and afterwards the two became friends and saw each other “almost on a daily basis.”
At one point, Marchman saw defendant with a black nine-millimeter handgun. He kept it in “a black soft-covered, zip-type holder or case, ” and had a compartment in his two vehicles where he kept the gun while driving around. He sometimes carried the gun in a briefcase. Marchman also saw defendant with “a manufactured homemade-type.12 gauge shotgun, single shot” which he said defendant made. The shotgun could fire different types of rounds. Defendant also made a zip gun.
Defendant showed Marchman a storage box he kept under his work bench in his garage which contained law-enforcement gear. It contained masks, goggles, a voice changer, black suits, boots, handcuffs, pepper spray, combat pants, a hoodie, a dark sweater, a belt and a vest.
Marchman also saw bomb-making materials at defendant’s home. Defendant had “fuses, black powder, all types of different casings, and I mean anything you could make a bomb out of.” Defendant also had “pipe bombs, black powder put in them, fuses put into those, pens taken apart, every different size.” Marchman said the pens were “writing pens, take the inside out and fill it with powder, put fuses on them. That’s what I saw.” Marchman thought “there was some hookup to a type of cell phone receiver.”
At various times, Marchman saw defendant working on the various devices. He saw him “drilling out holes, putting them together, screwing things on and off, just manipulating whatever he had to make the bomb, put the bomb together in some sort of way.”
When the two went out together, defendant carried a gun inside his briefcase. Defendant told Marchman the bullets were “Teflon tip, ” and called them “cop killers” because they are armor piercing. Marchman said defendant always had his gun: “Everywhere he went he had his gun.”
About three months after they met, the two went to see where defendant used to live in Huntington Beach he described it as “his old house where Jill lives.” Defendant walked up to the house “to check the changes in the house, the phone system-the alarm system in the house.” Defendant told Marchman he checked the alarm system and house for two reasons. One was “that he wanted his stuff back.” The other was “to go in there and kill her.”
Defendant talked about Jill Turner with Marchman daily: “the conversation would start, whether it was something he saw or someone he saw or something he heard or something he smelled, it was about Jill. He would talk about what happened and how it’s a conspiracy against him, so he wanted to - he was done wrong, so he wanted to get her, and he would say it on a daily basis. ‘I want to kill her, I’m going to kill her, I’m going to kill the judge, I’m going to kill the attorney.’ That was an everyday occurrence.”
Marchman asked defendant “what about the kids?” Defendant said “he wasn’t sure how it was going to work out and he wasn’t clear on what he was going to do afterwards.” Marchman testified defendant “was going to go into the house, pretty much isolate the kids in a room, anybody else that was there, whatever he had to do with them he was going to do. He was going to set up camp in the living room. [¶] There was two versions: He was going to set up camp in the living room and talk it out, let the cops come and line up outside, do their thing, and he was going to talk to her the whole time. [¶] And then when it was time to go, he would - something was said to him during this whole court case that burned a hole in him. He was going to tell her, ‘I guess we wanted the same things, didn’t we, ’ and he was going to shoot her in the face, do everything he could to the cops outside and, that was pretty much it. He was going to go out that way. [¶] The other way is that he was going to go in there and immediately handle things and go to the judge’s house.”
At one point during their relationship, Marchman said they “went to a location in Huntington Beach. I remember being by the library, I think, and right when we were getting there he said that he tracked down the computer through a cell phone that was on Jill’s car, that she went to this location. [¶] He had a printout from the computer or satellite or something and we went there, and that’s when I found out it was Judge Pollard’s house, if I recall correctly, and we went and saw it and he thought he saw Jill’s mom or somebody leave, so he followed that car a little bit away, but it wasn’t them, and that was it.”
On May 22, 2008, the police pulled Marchman over and found drugs, firecrackers and M-80’s in his car. On June 21, 2008, Marchman was pulled over by the police when he and his girlfriend were coming back from Newport Beach. In his car, he had a collapsible baton, a syringe, firecrackers and a couple of homemade bombs.
Marchman told his court appointed lawyer that he “thought somebody was going to kill somebody.” His lawyer contacted the police.
Judicial Protection Unit
The judicial protection unit of the Orange County Sheriff’s Department interviewed Marchman at the Orange County main jail. The unit searched defendant’s house and found a handmade rifle, rifle rounds, nine-millimeter rounds, shock shells, parts of a bulletproof vest, a Kevlar vest, holsters and magazines holders.
On July 2, 2008, officers from the judicial protection unit stopped defendant while he was driving his car along the Garden Grove Freeway. In his car, police found the gun and police equipment of a Los Angeles District Attorney investigator stolen from the officer’s car the previous year while the officer was in a 24 Hour Fitness in Chino on January 2, 2007. The equipment included a Glock nine-millimeter semiautomatic firearm with serial number ADM755, magazines containing ammunition, a gun holster, a nylon bag that contained the holstered gun, two badges, a set of handcuffs, handcuff holsters and a baton in a holster.
Bomb Squad
On July 9, 2008, the Orange County Sheriff’s bomb squad went to defendant’s home. Under the tool bench in the garage, “two large pipe bombs, one steel pipe bomb and one plastic pipe bomb” were found. The plastic bomb had an electronic timer. The bomb squad exploded the devices in a safe place. The squad found two boxes it “discovered contained IED’s, improvised explosive devices” with a remote firing system. It also found “cans that contained large amounts of the fast-burning powders.”
Also found in the garage were a large rocket, multiple electronics components, miscellaneous electronic equipment, wires, foil tape, metallic tape, copper piping, galvanized pipefitting, end caps for the pipes with holes drilled through them, a white plastic funnel with gray or charcoal-colored residue in it, battery packs, a battery clip, a homemade remote firing system, an improvised listening device, an improvised bottle rocket and fireworks.
Found in a bedroom “was a briefcase with a metal ball that contained a fuse coming out of it, ” gunpowder, and a white envelope with “For anyone that cares” written on it, containing about 10 sheets of paper. Also in the bedroom was a handmade weapon, three assault rifle magazines loaded with approximately 30 rounds each as well as an empty magazine and a printout of a GPS monitoring device.
High Tech Crime Team
Huntington Beach Police Department’s high tech crime team performs “investigations on high tech crimes and also computer forensics on cases that involve some type of digital evidence.” The team examined defendant’s laptop.
The password for his laptop is “diebitch.” One other user stored password was found. It contains a filthy word derogatory to women. Images found on defendant’s computer included photographs of him wearing SWAT gear and carrying various weapons. Defendant entitled his Web site “Psycho killer.” He posted a photograph of one of his children holding an Easter basket with a message: “F you, Mom.”
One folder was titled “JILLDOCS.” A document in that folder starts out “Jill, ” it is two single spaced pages listing a series of matters, including what was said by “Silbar, ” presumably the family law judge, and what was written by officers on police reports. The document concludes: “For all the reasons stated above and many more unmentioned. For rejecting me in the marriage. Emotionally abusing me, denying me the amount of sex I desired, Lying, cheating, wasting money, destroying my relationship with my children and stealing my house. For what you did and for the way that you did it. All for your own scripted personal satisfaction. All this is why you shall Die. You shall die by my hands. You were not in any danger when you started this but now? Not only am I going to kill you, you will get to experience the fear that you have been mentioning and it will be painful, but best of all I shall enjoy it.”
A document “on judge references” was also found. Another document criticizes Judge Pollard. The computer also indicates several searches for the name “Nancy Pollard” as well as a search for the name “Brian Seastrom” were performed.
Other documents on defendant’s computer were images of a “Los Angeles Sheriff, County Sheriff I. D. card in various stages of being counterfeited.” Each version bears the seal that says “SHERIFF LOS ANGELES COUNTY.” On some of the versions, the name on the card is “RONALD GARY TURNER JR.” Some versions have both defendant’s name and his photograph. Such identification allows a person to pass through the front entrance of a courthouse carrying a concealed weapon without going through a metal detector.
Examination of the computer revealed a “visit to a Web site with the last name X-A-N-T-H-A-K-I-S” on June 26, 2008. Included among other Web sites that were visited through defendant’s computer are “explosives, ” “gunsmithing” and “revenge.” Other times, searches of “domestic violence” and “domestic violence homicide” were made. Visits were also made to utube.com through the computer about homemade pipe bomb explosions.
II
DISCUSSION
Juror No. 1
Defendant contends: “The entire judgment must be reversed because the court erred in denying [his] meritorious challenge for cause to a seated juror and [defendant] was thereby deprived of a trial by an impartial jury.” The Attorney General says the court properly denied defendant’s request to dismiss Juror No. 1.
During trial, the court was notified the county health department ordered a quarantine of defendant’s module at the jail due to the swine flu. Trial proceedings were temporarily halted. The court informed the jury about the lockdown, and that a few inmates, not including defendant, were ill: “He is not sick. You don’t have to be concerned about that. He is not the cause of this. It is not his fault. It’s just that the doctors have determined that they want to stabilize the situation and that the best way to do that is to quarantine the entire area.”
Upon resumption of proceedings, defense counsel informed the court that Juror No. 1’s Facebook page “depicts her hosting or basically blogging about the trial, that the defendant is in custody on lock-down for swine flu and goes on to say that the case just keeps getting weirder, I think is what her exact statement is, which denotes, one, that she has already prejudged the case as being weird, and two, now that he is in lock-down for the swine flu, it’s even more weird.” Counsel requested the juror be excused and replaced with an alternate.
The prosecutor’s position was there was no indication the juror had prejudged the case: “I mean that is so innocuous, so ambiguous, such that I don’t believe Juror No. 1 has expressed an opinion about the cases itself.”
In evaluating the situation, the court mentioned that one approach would be to question the juror, but that would indicate someone is reading her blog. Defense counsel said: “Well, if that is where you are going with it, then I just as soon not have her questioned... I don’t want her knowing I was on there looking at the jurors who have Facebook accounts to see what they have been posting.” The court assured counsel it would not indicate who was looking at the juror’s posting, but made an alternate suggestion: “I can certainly caution all of the jurors, remind them they are not to have any communications with anyone about the case, stated in generic terms, and perhaps be a little more specific. That would include e-mails, blogs, any kind of communications like that.” Defense counsel responded: “If you want to do that, I don’t think you need to go into specifics, just a general.”
When trial resumed, the court went over numerous items with the jury. In the midst of speaking to the jurors, the court stated: “I know when the circumstances are a bit unusual, like this trial, there is always a tendency to tell people you, won’t believe what is going on. It’s fine, as I said at the beginning to talk about scheduling and say there has been a delay and so on and so forth. [¶] But you are not to discuss any of the contents of the case, or any of the issues, or things of that nature, whether it’s in person, by telephone, by e-mail, by blog, or anything. You are not to discuss issues related to the case.”
“(a) After the jury has been sworn and before the people’s opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct. The instructions shall include, among other matters, admonitions that the jurors shall not converse among themselves, or with anyone else, on any subject connected with the trial; that they shall not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they shall not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to, and within 90 days of, discharge, they shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they shall promptly report to the court any incident within their knowledge involving an attempt by any person to improperly influence any member of the jury. [¶] (b) The jury shall also, at each adjournment of the court before the submission of the cause to the jury, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them.” (§ 1122)
“An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘“capable and willing to decide the case solely on the evidence before it.”’ [Citations.] [¶] However, with narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict. The jury’s impartiality may be challenged by evidence of ‘statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly, ’ but ‘[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror... or concerning the mental processes by which [the verdict] was determined.’ [Citations.] Thus, where a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, ‘open to [corroboration by] sight, hearing, and the other senses’ [citation], which suggests a likelihood that one or more members of the jury were influenced by improper bias.” (In re Hamilton (1999) 20 Cal.4th 273, 293-294, fn. omitted.)
“[T]he jury is a ‘fundamentally human’ institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. [Citation.] ‘[T]he criminal justice system must not be rendered impotent in quest of an ever-elusive perfection.... [Jurors] are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.’ [Citation.]” (In re Hamilton, supra, 20 Cal.4th at p. 296.) Even when there is juror misconduct, any presumption of prejudice is rebuttable “if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]” (Ibid.)
Here the fact that defendant’s module was in quarantine had nothing to do with evidence in the case against defendant. There is no indication Juror No. 1’s posting on her Facebook page was anything but an isolated event, and nothing she said was of any particular importance. Nor is there any reason to believe defendant was in any way prejudiced by her comment about things getting weird, or that the juror’s statements were heard or read by other jurors. The court carefully and adequately admonished the jury.
Under these circumstances, we cannot find a presumption of prejudice ever arose. But if did, it was successfully rebutted by the court’s actions. We cannot conclude the court erred in not dismissing Juror No. 1.
Counts One and Four, Explosive Devices
Defendant next argues his convictions on counts one and four must be reversed because there is insufficient evidence of explosive devices as required by sections 12302.2 and 12303.3. He says”[i]t is conceivable that [he] built a look-alike device in order to intimidate and instill fear without putting anyone at risk of harm.”
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“Every person who recklessly or maliciously has in his possession any destructive device or any explosive on a public street or highway, in or near any theater, hall, school, college, church, hotel, other public building, or private habitation, in, on, or near any aircraft, railway passenger train, car, cable road or cable car, vessel engaged in carrying passengers for hire, or other public place ordinarily passed by human beings is guilty of a felony, and shall be punishable by imprisonment in the state prison for a period of two, four, or six years.” (§ 12303.2.)
“Every person who possesses, explodes, ignites, or attempts to explode or ignite any destructive device or any explosive with intent to injure, intimidate, or terrify any person, or with intent to wrongfully injure or destroy any property, is guilty of a felony, and shall be punished by imprisonment in the state prison for a period of three, five, or seven years.” (§ 12303.3.)
“(a) The term ‘destructive device, ’ as used in this chapter, shall include any of the following weapons: [¶]... [¶] (2) Any bomb....” (§ 12301, subd. (a)(2).)
“‘Destructive device’ is defined by statute to include a variety of specified weapons, including ‘any bomb.’ [Citation.]” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 25.) “[T]he term ‘bomb’ is not vague either on its face or as construed....” (People v. Quinn (1976) 57 Cal.App.3d 251, 258.) Persons of common intelligence know what a bomb is. (Id. at p. 259.) A pipe bomb is a destructive device. (People v. Dimitrov, supra, 33 Cal.App.4that p. 26.)
A member of the bomb squad testified the squad found “two large pipe bombs, one steel pipe bomb and one plastic pipe bomb.” The devices were exploded in a safe place by the bomb squad. Under the circumstances we find in this record, we conclude sufficient evidence supports defendant’s conviction under sections 12303.2 and 12303.3.
Impeachment of Marchman
Defendant next argues his convictions on counts one, two and three must be reversed because the trial court erred when it limited his impeachment of Marchman. He contends the prosecution’s “icing on the cake” in proving he possessed destructive devices with the specific intent to harm or destroy persons or property was Marchman’s testimony.
Prior to trial, the prosecutor informed the court of Marchman’s criminal record, and made a request that older crimes be excluded because of remoteness: “I’ve asked Mr. Marchman about his prior history. It dates back to 1989. In 1989, he had a second degree burglary in San Bernardino County. That’s a 20-year old conviction. I’d ask that not be inquired into by defense, that it be excluded under [Evidence Code section] 352. [¶] In 1992, Newport Beach, he picked up a grand theft, 487.1, person. Again, that’s way remote. People would ask that that be excluded. [¶] In 1998, 245 felony from Victorville. Again, remote. We’d ask that that be excluded. [¶] In 1998, 496a (a) felony from Victorville. The People’s position is that that’s remote and should be excluded. [¶] In 1989, 487 from Tahoe City. Again, remote. We’d ask that that be excluded. [¶] And in 2004, he picked up a 484-496 from Newport Beach. Obviously, the 484-496 are crimes of moral turpitude. I’m assuming defense wants those in. I’m not objecting to that. [¶] February 10, 2005, he picked up a 10851 and PC 69 from Long Beach, L.A. County. 10851 is the crime of moral turpitude. [¶] I don’t know what the PC 69 is. I’m not familiar enough to know. My understanding is that PC 69 is evading or obstructing a peace officer. I don’t have a problem with the 10851 coming in to impeach his credibility. [¶] And obviously, he has the cases that he admitted to, that I believe counsel has eluded to, the possession of destructive devices in a public place. Some of those have methamphetamine convictions with them - well, one of them has a methamphetamine conviction with them, and then he’s got another second degree burglary.”
The court indicated to defense counsel that the court would admit the resisting police officer conviction and that it appeared the prosecution objected only to the admission of all pre-2004 crimes. Defense counsel said he “would be fine” if the court admitted all of Marchman’s convictions after December 1998. The court limited impeachment of Marchman to his felonies, crimes of moral turpitude, and convictions from 1999 forward.
On direct examination, the prosecutor questioned Marchman about numerous crimes. Additionally Marchman admitted that on July 3, 2008, he entered a plea on the charges involving the various destructive devices found in his car, and that he was sentenced to two years eight months in prison.
On cross-examination, defense counsel questioned Marchman about his recent guilty plea for “possession of those bombs” and illegal fireworks, asking whether or not he and the police had “maybe work[ed] our a deal.” Marchman denied there was a deal. Defendant’s lawyer also asked Marchman about his prior convictions.
When defense counsel asked defendant about a conviction in the early 1990’s, the prosecutor objected. Apparently referring to the court’s ruling the previous day, the court reminded defendant’s lawyer “I don’t know if he went back that far yesterday.” Defendant’s attorney said: “Am I wrong?” “The court responded: “Yes. There was no testimony along those lines.” The court never actually ruled on the prosecutor’s objection. Rather, it appears orders made outside the presence of the jury were clarified and defendant’s lawyer went on to ask about one of Marchman’s 1999 convictions.
Exclusion of crucial defense evidence under some circumstances may constitute a denial of due process. (Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.) The application of the ordinary rules of evidence under state law do not violate a criminal defendant’s federal constitutional right to present a defense; trial courts retain the intrinsic power under state law to exercise discretion to control the admission of evidence at trial. (People v. Lawley (2002) 27 Cal.4th 102, 155.) The trial court, pursuant to Evidence Code section 352, retains discretion to determine if priors are too remote to be used for impeachment purposes. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
“Any felony conviction necessarily involving moral turpitude may be used to impeach a witness at a criminal proceeding. [Citations.] The admissibility of such a conviction rests with the trial court’s discretion. [Citation.] If a felony conviction does not necessarily involve moral turpitude, it is inadmissible for impeachment as a matter of law. [Citations.] Whether an offense constitutes a crime of moral turpitude is a question of law. [Citation.]” (People v. Maestras (2005) 132 Cal.App.4th 1552, 1556.)
In this case, defendant was able to impeach Marchman with many of his prior crimes, but was not allowed to present evidence of other, more remote, crimes. The jury was made quite aware of both Marchman’s current crimes as well as much of his criminal past. Without even considering the fact defendant agreed to the time limitations placed by the court, we cannot say the excluded evidence was vital to the defense or that due process principles required its admission. The trial court’s discretionary ruling excluding the evidence did not unfairly limit defendant’s impeachment of Marchman or violate his constitutional right to present a defense.
Count 13, Unlawful Possession of Ammunition
Defendant next claims the jury was permitted to find him guilty of unlawfully possessing ammunition based on a court order prohibiting possession of a firearm, which is not one of the enumerated offenses listed in section 12316. He contends the court erred when it instructed the jury with CALCRIM No. 2592. He also states there was a “failure of proof on the third element of a violation of Penal Code section 12316.” Defendant argues: “The core of respondent’s argument is an unsupported factual assertion. According to respondent, [defendant] had a prior misdemeanor conviction for violating Penal Code section 273.6. Based upon this unsupported factual assertion, respondent argues [defendant] was prohibited from owning a firearm under Penal Code section 12021, subdivision (c)(1).”
Count 13 alleges: “On or about July 02, 2008, in violation of Section 12316 (b)(1) of the Penal Code (POSSESSION OF AMMUNITION BY PROHIBITED PERSON), a FELONY, RONALD TURNER, did unlawfully own, possess, and have custody and control over ammunition and reloaded ammunition, when the defendant was prohibited from owning and possessing a firearm pursuant to Penal Code sections 12021 and 12021.1 and Welfare and Institutions Code sections 8100 and 8103.”
The jury was instructed with CALCRIM No. 2592 as follows: “In count 13, the defendant is charged with unlawfully possessing ammunition, a violation of Penal Code 12316 (b)(1). To prove that the defendant is guilty of this crime, the People must prove the following: [¶] One, the defendant possessed or had under his custody or control ammunition. [¶] Two, the defendant knew he possessed or had under his custody or control the ammunition. [¶] Three, a court has ordered that the defendant not possess a firearm. [¶] Four, the defendant knew of the court’s order. [¶] Ammunition means a bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence. [¶] Ammunition includes reloaded ammunition. [¶] The term possess has been defined in another instruction. [¶] The People and the defendant have stipulated or agreed that a court had ordered the defendant not to possess a firearm. This stipulation means that you must accept this fact as proved.”
“(b)(1) No person prohibited from owning or possessing a firearm under Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition.” (§ 12316, subd. (b)(1).)
“(c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of... 273.6..., and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison....” (§ 12021, subdivision (c)(1).)
Defendant was charged with unlawfully possessing ammunition in violation of section 12316, subdivision (b)(1). The allegations stated he possessed the ammunition while he was prohibited from possessing a firearm pursuant to section 12021. The parties stipulated defendant was “not permitted to possess a firearm pursuant to a court order” which satisfies part of the requirement of section 12021. But section 12021 also requires proof a defendant was convicted of a violation of a statute, in this case section 273.6.
Respondent’s brief states that defendant “previously was convicted of a misdemeanor under Penal Code section 273.6 for violating the restraining order against Jill Turner.” But the three record references to support the statement do not support it. One reference is to the district attorney’s sentencing brief. The second is to a pretrial conference wherein the deputy district attorney informed the court about what he intended to prove at trial. The third takes us to the prosecutor questioning a detective about his conversations with Jill Turner, having nothing to do with a violation of section 273.6.
Defendant is correct. His conviction on count 13 and his consecutive sentence of “1/3 the mid-term of 8 months” are reversed for failure to prove section 12316 was violated.
Count 16, Victim Intimidation
Next defendant contends his conviction on count 16 must be reversed. He says the conduct underlying that conviction was included in the continuing course of conduct which supported his conviction on count 15 because “[a] person cannot attempt to prevent or dissuade a person from reporting a crime without willfully and maliciously harassing that person.” The Attorney General argues the offense of witness intimidation is not necessarily included in the offense of stalking.
Count 15 alleges: “On or about and between September 20, 2007 and June 25, 2008, in violation of Section 646.9 (b) of the Penal Code (STALKING WITH RESTRAINING ORDER), a FELONY, RONALD TURNER did willfully, maliciously, repeatedly, and unlawfully follow, and did willfully, maliciously, and unlawfully harass JILL TURNER, and did unlawfully make a credible threat with the intent to place JILL TURNER in reasonable fear for the safety of JILL TURNER and the safety of JILL TURNER’s immediate family, when the defendant was subject to a temporary restraining order, injunction, and court order prohibiting that behavior against JILL TURNER.”
Count 16 alleges: “On or about April 29, 2008, in violation of Section 136.1 (c)(1) of the Penal Code (DISSUADE WITNESS BY FORCE OR THREAT), a FELONY, RONALD TURNER did knowingly, maliciously, and unlawfully prevent and dissuade and attempt to prevent and dissuade JILL TURNER, a victim and a witness, from making a report of that victimization to a peace officer, a state and local law enforcement officer, a probation officer, a parole officer, a prosecuting agency, and a judge, by force and by an express and implied threat of force and violence upon the person and property of JILL TURNER.”
“(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. [¶] (b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.” (§ 646.9.)
“[E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.” (§ 136.1, subd. (b)(1).)
“An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count. (§ 954.)
“In California, a single act or course of conduct can lead to convictions ‘of any number of the offenses charged.’ [Citations.] However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]” (People v. Ramirez (2009) 45 Cal.4th 980, 984.)
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted.)
Violation of section 136.1 requires the recipient of the intimidation be a victim of a crime and also requires an attempt by the perpetrator to dissuade a victim from reporting a crime. But those two elements are not required for violation of section 646.9. As charged here in count 16, the crime of violation of section 136.1 was committed on a specific date, April 29, 2008. But as charged here in count 15, the crime of violation of section 646.9 was committed between September 20, 2007 and June 25, 2008. Under the circumstances in this record, we cannot conclude violation of section 136.1 and violation of section 646.9 were part of the same course of conduct.
Count 17, Forgery of Official Seal
Defendant next claims his conviction on count 17 must be reversed for insufficient evidence. He says that “[a]t most, the evidence showed that [he] had prepared an electronic image of a forged or counterfeit official seal with the intent to print it out on a phony deputy badge, but there was no proof that [he] ever printed out the stored electronic image. The jury was not instructed on the lesser included offense of attempt to commit the alleged crime.” Defendant also contends the court erred in responding to a jury question about count 17.
Count 17 alleges: “On or about July 02, 2008, in violation of Section 472 of the Penal Code (FORGERY OF OFFICIAL SEAL), a FELONY, RONALD TURNER, with the intent to defraud, did unlawfully forge and counterfeit the seal of LOS ANGELES COUNTY SHERIFF’S DEPARTMENT, seal authorized and recognized by the laws of California and another State, government, and country, and did falsely make, forge, and counterfeit an impression purporting to be an impression of the seal, and did unlawfully possess and willfully conceal the same counterfeited seal and impression, knowing it was counterfeited.”
“Every person who, with intent to defraud another, forges, or counterfeits the seal of this State, the seal of any public officer authorized by law, the seal of any Court of record, or the seal of any corporation, or any other public seal authorized or recognized by the laws of this State, or of any other State, Government, or country, or who falsely makes, forges, or counterfeits any impression purporting to be an impression of any such seal, or who has in his possession any such counterfeited seal or impression thereof, knowing it to be counterfeited, and willfully conceals the same, is guilty of forgery.” (§ 472.)
The jury was instructed as follows: “In count 17, the defendant is charged with forging or counterfeiting a government seal, a violation of Penal Code 472. To prove that the defendant is guilty of this crime, the People must prove the following: [¶] One, the defendant forged or counterfeited a public seal legally authorized or recognized by any state government or county. [¶] Two, when the defendant did that act, he intended to defraud, someone intends to defraud if he intends to deceive another person, either to cause a loss of money or something else of value, or to cause damage to a legal, financial, or property right. [¶] For the purpose of this instruction, a person includes a government agency, a business, and the body politic. [¶] It’s not necessary that anyone actually be defrauded or actually suffers a financial, legal, or property loss as a result of the defendant’s acts.”
During deliberations, the jury sent out a note: “Questions about Count 17: [¶] 1. Is it forgery or counterfeiting when it is merely on the computer, before it is printed? [¶] 2. How do we know what an actual [Sheriff’s] badge looks like (could this one actually pass as legitimate if printed?)” The court responded in writing: “Response to Jury Question (8/3/09): [¶] 1. Forgery or counterfeiting encompasses any form of writing or recording, including electronic or digital recording. [¶] 2. You are limited to the evidence presented during the trial, as well as any reasonable inferences that can be drawn from that evidence. [¶] Please advise if you need further clarification on this or any other issue.”
Defendant now contends the court erred when it expanded the definition of a writing. At trial, however, the court and counsel conferred at length about how to respond to the jury’s question. When the court asked defense counsel if there was an objection to the proposed response, counsel stated: “I think the court’s - the proposed portion of the answer with regard to how a forgery can be expressed, as you put it, is accurate, that it can be an electronic form, electronic format.” Counsel went on to request the jury also be given a definition of forgery. Defense counsel agreed the court’s response to the jury was correct. Defendant did not raise this issue during trial, but simply wanted another definition to be included in the response. Accordingly, defendant’s argument on this point is forfeited. (People v. Roldan (2005) 35 Cal.4th 646, 729.)
Defendant was found in possession of two badges as well as the numerous versions of a false identification card bearing the seal of the Los Angeles Sheriff’s Department and his name and photograph. “Making virtually any kind of false document affords an inference that the maker intends to deceive someone.” (Lewis v. Superior Court (1990) 217 Cal.App.3d 379, 388.) Under the circumstances we find in this record, we must conclude there is sufficient evidence to support defendant’s conviction on count 17.
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) Here defendant went well beyond an attempt. In fact, the officer from the high tech crime team who found the various versions of the identification card on defendant’s computer testified it appeared to him to be a card from the Los Angeles County Sheriff. We cannot find defendant merely committed an attempt when all he had to do was click on a button to print out a forgery sufficient to convince a high tech crime team detective.
Alleged Sentencing Errors, Counts 10 and 12
Defendant contends he was twice punished for committing the same act when the court sentenced him on counts 10 and 12, and that the judgment must be corrected. Defendant was convicted of carrying a loaded firearm in public on count 10 and receiving stolen property on count 12. The trial court imposed consecutive eight month terms on each. He contends his punishment for count 12 must be stayed because each conviction is based on only one fact, that the firearm was stolen.
Section 654 requires that an act or omission that is made punishable in different ways by different provisions of this code may be punished under either of such provisions, “but in no case shall [it] be punished under more than one....” This provision bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal].) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d at p. 19, italics added.)
“‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments, ] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’ [Citation.]” (People v. Coleman (1989) 48 Cal.3d 112, 162.) “Although the court made no express findings on the issue, a finding that defendant’s crimes were divisible inheres in the judgment. If that implied finding is supported by the evidence, it must be upheld.” (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
“(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.” (§ 12031, subd. (a)(1).
Respondent’s argument is that the factual basis to prove defendant violated section 12031 was not the fact that the firearm was stolen, but that defendant was previously convicted of violating section 273.6. As previously discussed, respondent has not cited to any evidence that the prosecutor proved defendant had previously been convicted of violating section 273.6.
Defendant is correct. The factual basis for violating both sections 496 and 12031, as a felony, is that defendant was in possession of a stolen firearm.
But it is only under certain circumstances that violation of section 12031 is punishable as a felony. Outside those circumstances, it is punishable as a misdemeanor. (§ 12031, subd. (A).)
There is evidence the judicial protection unit found the Los Angeles officer’s stolen gun in defendant’s vehicle when they stopped him while he was driving on a freeway. There is also evidence defendant was in possession of the firearm in violation of a restraining order prohibiting him from possessing a firearm. Clearly there is evidence of two separate objectives, one to receive a stolen gun and the other to be unlawfully in possession of a loaded firearm in public. Thus, while defendant cannot be punished for felony violation of section 12031, he can be punished under that section for misdemeanor violation. (cf. People v. Taylor (1969) 2 Cal.App.3d 979, 985-986.)
Alleged Sentencing Errors, Counts 15 and 16
Defendant also argues his punishment for intimidating a witness on count 16 must be stayed because the evidence shows his actions were part of the same course of conduct for stalking on count 15. We have already rejected the same argument in a previous section.
Alleged Sentencing Errors, Count 17
Defendant’s last claimed sentencing error is that the trial court erred in not staying his punishment for forgery on count 17 because it was committed with the same intent and objective used as the basis for punishing him for possession destructive devices on counts one, two and three. The evidence shows the bombs were made in defendant’s garage and the computer was found in his bedroom, circumstances from which a trier of fact could reasonably infer the actions were not part of one continuing course of conduct.
Section 4019
Lastly, defendant argues that should his conviction on count 16 be reversed, he is entitled to additional presentence conduct credit under section 4019. As we affirm his conviction on count 16, this argument is moot.
III
DISPOSITION
The judgment of conviction is affirmed on all counts except count 13 which is reversed. The matter is remanded to the superior court for resentencing in accordance with this opinion.
WE CONCUR: RYLAARSDAM, ACTING P.J., O’LEARY, J.
Count 1: Guilty of possession of a destructive device with the intent to injure and destroy property of another in violation of section 12303.3. (All further statutory references are to the Penal Code unless otherwise indicated.)
Count 2: Guilty of possession of a destructive device with the intent to injure and destroy property of another in violation of section 12303.3.
Count 3: Guilty of possession of a destructive device with the intent to injure and destroy property of another in violation of section 12303.3.
Count 4: Guilty of possession of a destructive device in a private habitation in violation of section 12303.2.
Count 5: Guilty of possession of a destructive device in a private habitation in violation of section 12303.2.
Count 6: Guilty of possession of a destructive device in a private habitation in
violation of section 12303.2.
Count 7: Guilty of possession of substance and material with the intent to make a destructive device in violation of section 12312.
Count 8: Guilty of possession of a zip gun in violation of section 12020,
subdivision (a).
Count 9: Not guilty of possession of a zip gun in violation of section 12020, subdivision (a).
Count 10: Guilty of carrying a loaded weapon in public in violation of section 12031, subdivision (a)[(1)]. The jury found the allegation that defendant was prohibited by law from possessing a firearm within the meaning of section 12031, subdivision (a)(2)(D) to be not true.
Count 11: Not guilty of removing firearm identification in violation of section 12090.
Count 12: Guilty of receiving stolen property in violation of section 496, subdivision (a).
Count 13: Guilty of possession of ammunition in violation of section 12316, subdivision (b)(1).
Count 14: Guilty of stalking in violation of section 646.9, subdivision (a).
Count 15: Guilty of stalking in violation of section 646.9, subdivision (b).
Count 16: Guilty of intimidating a witness in violation of section 136.1. The jury found the allegation that defendant used or threatened to use force within the meaning of section 136, [1] subdivision (c)(1) to be not true.
Count 17: Guilty of forgery of a governmental seal in violation of section 472.
Count 18: Not guilty of making criminal threats in violation of section 422.
Count 19: Not guilty of making criminal threats in violation of section 422.
Count 20: Not guilty of making criminal threats in violation of section 422.