Opinion
F054871.
2-24-2009
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER VALDOVINOS, Defendant and Appellant.
Alex N. Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Defendant Francisco Javier Valdovinos was convicted of possession of ammunition by a felon. (Pen. Code, § 12316, subd. (b).) He appeals, claiming the jury was not properly instructed on the defense of transitory possession. In addition, he argues that the crime of possession of ammunition by a felon violates his constitutional right to keep and bear arms. We affirm.
FACTS
On September 10, 2007, Kings County police officer Brenda Lemos, on assignment to the Kings County Narcotics Task Force, conducted a parole search of defendants room at his sisters residence. Lemos found several bullets and an empty large-capacity magazine in the top drawer of the dresser in his room. In addition, Lemos found documents in the room with defendants name on them.
After Lemos seized the evidence, she spoke to defendant, assisted by a translator. She asked defendant about the ammunition. He told her that he had found his son in possession of the ammunition a few weeks earlier. He took the ammunition away from his son. When Lemos asked him why he had not thrown the ammunition away or destroyed it, defendant did not respond.
On cross-examination, Lemos was asked how one destroys bullets in a safe manner. She responded that one in possession of bullets should take them to a police department or fire department to be destroyed.
The officer who translated the conversation, Martha Forlines, testified that defendant said his son had come to his house and had the bullets in his possession. Defendant took the bullets away and put them in a drawer. Defendant said his son was there about a week before the search. Forlines did not remember if defendant stated how long he had the bullets in his possession.
Defense
Defendant testified on his own behalf. Defendants son had come to visit him for a couple of weeks in August. One day, defendants sister called and said defendants son was firing a BB gun at dogs. Defendant came home from work to look into the matter. His son was on the bed shooting the BB gun out the window. There were a couple of bullets on the bed. Defendant searched his sons backpack and found more bullets. Defendant placed the bullets in the top drawer of his dresser. Defendant thought this incident occurred on Tuesday, September 4, 2007, at approximately 1:30 p.m.
Although defendant thought of taking the bullets to the police department after he took them from his son, he kept them because he wanted to find out where his son got them and wanted his sons mother to see the bullets so perhaps she could identify where her son obtained the bullets.
The mother came and picked up defendants son the next day while defendant was at work, so he never got to show her the bullets. Defendant planned to get rid of the bullets because he knew he was not supposed to have them in his possession; he testified that he did not have time to do so.
On cross-examination, defendant testified that he found the bullets three or four days before his son left. After finding the bullets, he drove back to work and called the mother. He told her about the bullets, and the mother said she wanted to talk to her son to see where he got the bullets.
Defendant said he thought of giving the bullets to his parole officer but did not think about turning them in to the police. When he thought of giving the bullets to his parole officer, he said it was too late to call. He admitted he knew where the police station was.
During further questioning by the prosecutor, defendant testified that the day after he found the bullets and spoke to his sons mother he had surgery and left home at 7 a.m. in the morning. (Defendant testified that he had surgery on the 6th of September.) Defender testified that after the surgery he spent the next three days at home sleeping and on very strong pain medication. He did not call his parole officer because of the effects of the anesthetic from the surgery and the medications he was taking.
Defendant testified that on the fourth day after he had surgery he got up in the evening and about an hour later he drove to the store. He picked up a friend at the store and was driving him to another friends house when he was stopped by police. The stop occurred approximately two hours after defendant got up that evening. After defendant was stopped, officers went to his house to conduct the parole search.
DISCUSSION
I. CALCRIM No. 2591
The jury was instructed with Judicial Council of California Jury Instructions (2006) CALCRIM No. 2591, which is drawn from Penal Code section 12316, subdivision (d), that "[i]f you conclude that the defendant possessed ammunition, that possession was not unlawful if the defendant can prove that he was justified in possessing the ammunition. [¶] In order to establish this defense, the defendant must prove that, one, he found the ammunition and, two, he possessed the ammunition no longer than was necessary to deliver or transport the ammunition to a law enforcement agency for that agency to dispose of the ammunition." The jury was instructed that defendant had the burden of proof on this defense and had to prove the defense by a preponderance of the evidence.
At trial, the prosecution argued that defendant was clearly in possession of the ammunition and his actions/inaction did not satisfy the criteria for justifiable possession. The criteria of this defense were restated to the jury by the prosecutor during his argument to the jury. The prosecutor asserted that much of defendants story was unbelievable but, even if believed, defendant had opportunities to turn in the ammunition to the police in the required time but failed to do so in a manner that satisfied the defense.
Counsel for defendant argued to the jury that defendant was justified in keeping the bullets to show them to his sons mother. After that, defendant had surgery and was heavily medicated. It was defendants position that he did not try to conceal the bullets, readily admitted to the possession, and cooperated with the police. Thus, defense counsel contended defendants possession was justified to first show the bullets to the mother and then turn them over to his parole officer.
In response, the prosecution argued that because defendant is a felon he does not have the same privileges as normal citizens to keep ammunition as long as he wants. Because of his status, defendant cannot delay any longer than necessary in turning the ammunition over to law enforcement. The prosecutor asserted that defendant does not get to play the good-father figure because he is under different restrictions. The People argued that defendants testimony that he was unable to function for three or four days because of his surgery was concocted so the jury would not find him guilty.
The People then argued: "So is it a story concocted for no other reason than because he doesnt want you to find him guilty? Thats probably really whats happening here, isnt it? Unable to move around, in fact, he could have just thrown them in the dumpster and let the [refuse] department get rid of it for him and he wouldnt be found guilty, because he wouldnt be in possession. Its too bad for him that he cant have ammunition, okay, but thats not the issue here. The issue is not whether its too bad, Im sorry, its whether he possessed them, and did he possess them long enough that his defense is no longer valid. Thats what you need to worry about today. It isnt a complicated case, dont go off on tangents wondering, thinking and making up defenses for him. Your job is not that complicated because this isnt a complicated case. There are a few things you need to worry about, and you can look at them, you all have a copy of it, and I ask that you find him guilty, thank you."
On appeal, defendant argues the instruction as given was defective because the instruction did not make clear that a defendant does not have the option of disposing of the ammunition more quickly by throwing it in the garbage. It is defendants position that this instruction should have been more expansive and informed the jury that under California law one must comply with strict regulations when disposing of ammunition and cannot legally abandon it or throw it in the garbage. He contends the instruction creates a false impression that a felon who finds ammunition should simply throw it away to avoid legal culpability. Defendant argues that without informing the jury that he could not legally dispose of the bullets by throwing them in the trash his defense was undercut because it was suggested that he deserved to be convicted if he did not even take the minimal effort to throw the bullets in the garbage.
The transitory or momentary possession defense was established in People v. Mijares (1971) 6 Cal.3d 415, a case involving narcotics possession. This same defense applies to the possession of other items, including the possession of firearms or ammunition.
The California Supreme Court explicates: "In Mijares the principal question presented was whether the act of momentarily handling a narcotic for the sole purpose of disposal constituted unlawful `possession within the meaning of Health and Safety Code former section 11500. Defendant Mijares was observed by a woman bystander as he leaned inside a parked car and slapped the passenger (his friend) across the face. Moments later he was seen removing an object from the passenger compartment of the car, which he threw into a nearby field. He then drove his friend, who was suffering from a heroin overdose, to a fire station. The friend, who was not breathing, was revived and taken away by ambulance while Mijares waited at the station for the police. The authorities recovered the object tossed into the field and determined it contained heroin and related paraphernalia, whereupon Mijares was arrested for possession of narcotics. At trial Mijares claimed he believed his friend was overdosing and needed medical help. Suspecting the friend might still have narcotics on his person if he had recently taken drugs, Mijares looked inside the friends pockets, found the narcotics outfit, and threw it out of the car before driving to the fire station for help. (Mijares, supra, 6 Cal.3d at pp. 417-419.)
"We explained in Mijares that `in throwing the heroin out of the car, defendant Mijares maintained momentary possession for the sole purpose of putting an end to the unlawful possession of [his friend]. (Mijares, supra, 6 Cal.3d at p. 420.) We concluded that the physical control inherent `during the brief moment involved in abandoning the narcotic was not possession for purposes of the statute. (Id., at p. 422.) We reasoned that if such transitory control were to constitute possession, `manifest injustice to admittedly innocent individuals could result. (Ibid.) As an example, we referred to the witness who saw the defendant throw the object. Had she `briefly picked up the package and identified the substance as heroin and then placed the outfit back on the ground, during the time after which she had realized its narcotic character she, too, would have been guilty of possession under an unduly strict reading of [the statute], notwithstanding the fact that her transitory handling of the contraband might have been motivated solely by curiosity. (Ibid.) We refused to `read the possession statutes to authorize convictions under such guileless circumstances. (Ibid.) We further relied on certain federal court decisions that had rejected the notion that criminal possession under federal statutes includes such transitory activity as the momentary handling of drugs. We noted that the Seventh Circuit Court of Appeals had reversed a federal narcotics conviction, declaring, `"`To "possess" means to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature."" (Mijares, supra, 6 Cal.3d at p. 420 quoting United States v. Landry (7th Cir. 1958) 257 F.2d 425, 431.)" (People v. Martin (2001) 25 Cal.4th 1180, 1185-1186, brackets in original.)
Subsequent to the Mijares decision, the appellate court in People v. Cole (1988) 202 Cal.App.3d 1439 interpreted the decision as holding that "possession of illegal drugs solely for the purpose of disposal does not constitute unlawful possession." (Id. at p. 1445, italics in original.) The Cole court also concluded that the transitory possession defense "is not limited to possession for `brief moments only." (Ibid.)
Several subsequent appellate decisions disagreed with Cole. The California Supreme Court in People v. Martin, supra, 25 Cal.4th 1180 took issue with Cole, agreeing with those contrary appellate decisions. "We agree with the decisions in Sullivan [People v. Sullivan (1989) 215 Cal.App.3d 1446], Frazier [People v. Frazier (1998) 63 Cal.App.4th 1307], and Hurtado [People v. Hurtado (1996) 47 Cal.App.4th 805] that reject Coles expansive reading of our opinion in Mijares. As noted, the statutes (past and present) at issue in the cases we have reviewed all make unlawful the possession of enumerated controlled substances `without regard to the [possessors] specific intent in possessing the substance. (Sullivan, supra, 215 Cal.App.3d at p. 1452 [but see ante, fn. 4, p. 1185].) As aptly explained in People v. Spry [(1997) 58 Cal.App.4th 1345, 1369], `When a defendant relies on the Mijares defense, he or she essentially admits the commission of the offense of simple possession of narcotics: The defendant exercised control over the narcotics, he or she knew of its nature and presence, and possessed a usable amount. (CALJIC No. 12.00.) However, the defendant additionally asserts that he or she possessed the narcotics for the limited purpose of disposal, abandonment, or destruction. Mijares does not serve to negate an element of the offense of possession of narcotics. Instead, it offers a judicially created exception of lawful possession under certain specific circumstances as a matter of public policy, similar to the defenses of entrapment and necessity.
"We agree with the Hurtado court that recognition of a `momentary possession defense serves the salutary purpose and sound public policy of encouraging disposal and discouraging retention of dangerous items such as controlled substances and firearms. (Hurtado, supra, 47 Cal.App.4th at p. 814.) The theory of defense to unlawful possession of narcotics announced in Mijares `arose from a situation involving a fleeting, de minimis possession and a reflexive act of abandonment. [Our] holding was that this de minimis possession and reflexive response was not a criminal possession. (Sullivan, supra, 215 Cal.App.3d at p. 1452.) Throughout our opinion we repeatedly focused on the fleeting and transitory nature of Mijaress possession of his passengers `narcotics outfit during the instant he removed it from the latters person and threw it into the nearby field. (Mijares, supra, 6 Cal.3d at pp. 419 [`momentary "possession" of the heroin, `transitory activity], 422 [`brief moment involved in abandoning the narcotic, `transitory handling of the contraband], 423 [`momentary handling prior to abandonment, `merely handling for only brief moments prior to abandoning the narcotic].) We concluded in Mijares that such momentary or transitory handling or possession, coupled with intent to dispose, could establish a defense to the crime of unlawful possession of narcotics. The Hurtado court correctly observed that Coles expansion of the momentary possession defense to lengthier possession incidental to the defendants intent to dispose of controlled substances effectively rewrites the statutory requirements of unlawful possession by introducing a new element of `"specific intent to retain." (Hurtado, supra, 47 Cal.App.4th at p. 814.)" (People v. Martin, supra, 25 Cal.4th at pp. 1190-1191.)
Defendants argument fails. Even if we credit defendant with his version of events that he was unable to turn over the bullets because he was anesthetized and then under the influence of strong medication, this version of defendants proffered defense still demonstrates that he inappropriately kept the bullets from the time in the afternoon when he discovered them until he went to the hospital for surgery and then again retained them for approximately two hours after he came out of his drug-induced state following surgery. During this entire time period when defendant had his cognitive abilities he did not turn the bullets over to law enforcement. Defendants specific intent in retaining possession of the bullets to show them to his sons mother has no bearing on his defense.
Under the facts here defendant was not even entitled to the instruction because his possession of the ammunition cannot be characterized as momentary. (People v. Hurtado (1996) 47 Cal.App.4th 805, 814.) Thus we fail to see how an instruction regarding the correct disposal of ammunition would have resulted in an outcome more favorable to defendant. Contrary to defendants argument, the instruction did not imply that he was required to show that he did not have time to throw the bullets in the garbage.
II. Sua Sponte Instruction
As his second claim, defendant argues that even if CALCRIM No. 2591 is correct, the trial court had a sua sponte duty to clarify the legal principles about disposal of ammunition after the prosecutor raised the issue in closing arguments. Defendant contends that the failure to explain these concepts to the jury allowed his potentially viable defense to be trashed.
The prosecutors argument was not made in the context that defendant could only possess the ammunition for the time necessary to throw it in the garbage, but was made as part of the argument that it appeared that defendant concocted a story to avoid a finding of guilt altogether and was trying to get the jury to go off on tangents not applicable to the defense. The instructions were clear that defendant could legally defend his possession of the ammunition for the limited time necessary to deliver or transport it to law enforcement agencies. The prosecutor reiterated this concept in his argument to the jury.
The court did not have a sua sponte duty to explain how ammunition should be properly disposed of since such an explanation had nothing to do with the facts as presented at trial. The instructions as given were adequate; no further instruction, on the courts own motion, was necessary.
III. The Right to Keep and Bear Arms
In a supplemental brief defendant argues that the recent United States Supreme Court case of District of Columbia v. Heller (2008) __ U.S. __ invalidates the California statutes prohibiting the possession of firearms by felons and the possession of ammunition by felons.
In Heller, the United States Supreme Court struck down the District of Columbias prohibition on the registration of handguns and the prohibition of the possession of usable handguns in the home as unconstitutional under the Second Amendment of the United States Constitution.
Defendant attempts to analogize the District of Columbias gun prohibitions to the California laws prohibiting the possession of guns and ammunition by felons. In making this argument, defendant minimizes as dicta the language of Justice Scalia in his majority opinion which states that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." (Heller v. District of Columbia, supra, ___ U.S. at p. ___ [128 S.Ct. at pp. 2816-2817].)
We decline to disregard this clear language in the Heller opinion upholding the prohibition of the possession of firearms by felons. (See People v. Flores (2008) 169 Cal.App.4th 568; People v. Yarbrough (2008) 169 Cal.App.4th 303.) Heller also does not have an effect on the possession of ammunition because, if a felon cannot possess a firearm there would be no apparent reason to allow the felon to possess ammunition.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
WISEMAN, J.
KANE, J.