Opinion
B208298.
6-25-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT L. WASHINGTON, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Robert L. Washington (appellant) was convicted by a jury of two counts of possession of an assault weapon (counts 1 & 2, Pen. Code, § 12280, subd. (b)); sale or transportation of marijuana (count 4, Health & Saf. Code, § 11360, subd. (b)); possession of marijuana for sale (count 5, Health & Saf. Code, § 11359); and maintenance of a place for selling, giving away, or using a controlled substance (count 6, Health & Saf. Code, § 11366). The jury also found that appellant was armed with a firearm during the commission of count 6. Appellant was sentenced to six years in prison. He appeals, contending there is insufficient evidence to sustain his convictions for the possession of an assault weapon and the finding he was armed while maintaining a place used in connection with a controlled substance. In the event we find the evidence sufficient to uphold the possession convictions, he argues that he should have been convicted of only one count. He also requests that this court independently review the in camera proceedings held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 28, 2007, approximately seven Los Angeles County Sheriffs deputies set up a surveillance team outside 2822 Halldale Avenue in Los Angeles, which was a house with a detached garage in the rear. Appellant arrived in a blue van and parked in front of the residence. He got out carrying an empty duffle bag and walked past the front house towards the garage. Approximately 15 to 20 minutes later, a second car parked in front of the residence. A man exited and also went towards the garage. Five to 10 minutes later, that man returned to his car, carrying what appeared to be a brick of marijuana, and drove away. After another 15 to 20 minutes elapsed, appellant came out carrying the same duffle bag he had removed from the car. Now it appeared to be full. He got into the blue van and drove away. Approximately one-quarter of a mile away, sheriffs deputies stopped him and searched the van. The duffle bag contained what was later stipulated to be approximately three pounds of marijuana. Detective Chris Romash took the key ring out of the vans ignition, removed the van key so the van could be towed, and gave the key ring, which contained several keys, to Detective Carlos Parga.
After Detectives Parga and Romash heard a radio transmission that several people were arriving at the Halldale address, they returned to that location. Occupants of the front house came out when the officers arrived. Detective Parga used one of the keys from the key ring appellant had in his possession to unlock the outer metal security door to the garage. The deputies knocked and announced their presence but when one deputy thought he heard sounds emanating from within, they used a battering ram to open the inner door. Inside the converted garage, Parga smelled a strong odor of marijuana. The deputies found a black bag which contained several large packages of marijuana and marijuana placed into smaller plastic baggies. There was no one in the garage. Later, when they searched the garage, the deputies lifted the seat cushions of two sofas and discovered five firearms, four of which were loaded. The firearms were two loaded MAC-11 or M-11 assault rifles made by SWD Incorporated, two loaded semiautomatic handguns, and an unloaded handgun. The firearms were not visible until the seat cushions were lifted. The deputies also found a large scale and more marijuana in a closet. There was no clothing or any other indication that someone was living in the garage. After the search was completed, Detective Romash used the keys from the key ring to lock the interior security door to the garage.
At trial, neither Detective Parga nor Detective Romash could identify which keys they used from the key ring to open the doors to the converted garage. Detective Romash admitted that he did not state in the search warrant affidavit that deputies had used a battering ram to open the interior door. In Detective Pargas opinion, the converted garage was a "stash house," a place narcotics sellers use to hide or store narcotics. The weapons were for the protection of the sellers.
Appellant did not present any evidence.
DISCUSSION
I. Pitchess Motion
Prior to trial, appellant filed a Pitchess motion seeking access to Detective Romashs confidential personnel files. In particular, appellant sought citizen complaints that Romash had fabricated statements in search warrant affidavits. The court granted the motion and conducted an in camera hearing on December 13, 2007.
We have reviewed the sealed transcript of that hearing during which the court reviewed the personnel record of Detective Romash. On the record it discussed Detective Romashs file and found nothing in it which related to appellants claim. We are satisfied that the court complied with its obligation to conduct a thorough review of the officers personnel record and that no relevant discovery was withheld from the defense.
II. Assault Weapon Possession and Firearm Enhancement
Appellant was convicted of two counts of possession of an assault weapon in violation of Penal Code section 12280, subdivision (b), which provides in pertinent part: "Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison." It goes on to provide that a first violation of this section may be punished by a monetary fine under certain conditions. Appellant does not contend that the weapons in question are not assault weapons.
All further statutory references are to the Penal Code.
Appellant argues there is insufficient evidence that he knew the firearms were present in the garage. He points out that they were discovered by the deputies only after the sofa cushions were lifted. There is no dispute the weapons were not in plain view. He also asserts there is insufficient evidence establishing that he knew or should have known that the MAC-11s were assault weapons.
"The question of the defendants knowledge or negligence [in a charge of possession of an unregistered firearm under section 12280, subdivision (b)] is, of course, for the trier of fact to determine, and depends heavily on the individual facts establishing possession in each case. . . . Generally speaking, a person who has had substantial and unhindered possession of a semiautomatic firearm reasonably would be expected to know [it is of a certain make and model.] At the same time, any duty of reasonable inquiry must be measured by the circumstances of possession; one who was in possession for only a short time, or whose possession was merely constructive, and only secondary to that of other joint possessors, may have a viable argument for reasonable doubt as to whether he or she either knew or reasonably should have known the firearms characteristics." (In re Jorge M. (2000) 23 Cal.4th 866, 887-888.) On appeal, we must view the facts in a light most favorable to the conviction. (Ibid.)
Appellants key ring contained the key that unlocked the interior doors to the converted garage where the marijuana was found. This is substantial evidence that he had dominion and control over the location. The weapons were not found in an area where an occupant might be unaware of their presence. Although the firearms were not in plain view, they were readily accessible. One merely needed to lift a sofa cushion to retrieve any one of the five weapons that were present. It is also significant that the location was a drug house. Detective Parga informed the jury that narcotics dealers often have weapons available to safeguard their contraband. The large cache of drugs in the garage made it likely that appellant would take such measures. Under the circumstances, the jury could reasonably infer appellant was aware that the weapons were present and knew the capabilities of the firearms he relied upon to defend his product. There is sufficient evidence to support the convictions and the armed enhancement.
Appellant contends even if the evidence is sufficient to establish that he possessed the assault weapons, he may be convicted of only one count. He cites case law and argues it stands "for the proposition that the simultaneous possession of multiple objects of the same nature constitutes only one offense." (See, e.g., People v. Rowland (1999) 75 Cal.App.4th 61 [prison inmate who was found with three sharpened wooden shafts could be convicted of only one count of possessing a weapon while in custody].)
The Attorney General argues appellant may be convicted of two counts pursuant to section 12280, subdivision (a)(3), which provides in pertinent part that "if more than one assault weapon or .50 BMG rifle is involved in any violation of this section, there shall be a distinct and separate offense for each."
Appellant counters in his reply brief that he was convicted of violating section 12280, subdivision (b), not subdivision (a). Thus, he asserts subdivision (a)(3) does not apply.
Subdivision (a) provides that: "(1) Any person who, within this state, manufactures or causes to be manufactured, distributes, transports, or imports into the state, keeps for sale, or offers or exposes for sale, or who gives or lends any assault weapon or any .50 BMG rifle, except as provided by this chapter, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for four, six, or eight years. . . . [¶] (3) Except in the case of a first violation involving not more than two firearms as provided in subdivisions (b) and (c), for purposes of this section, if more than one assault weapon or .50 BMG rifle is involved in any violation of this section, there shall be a distinct and separate offense for each."
Appellant misreads the statute. Section 12280, subdivision (a)(3) provides: "Except in the case of a first violation involving not more than two firearms as provided in subdivisions (b) and (c), for purposes of this section, if more than one assault weapon or .50 BMG rifle is involved in any violation of this section, there shall be a distinct and separate offense for each." (Italics added.) We conclude the Legislature intended the language in subdivision (a)(3) to apply to any conviction under the statute, not just a violation of subdivision (a). There is no question the Legislature knows the difference between a section (the entire statute) and a subdivision (a portion thereof). If it had intended to limit the application of subdivision (a)(3) to certain violations of the statute and not to others, it would have said so.
Thus, appellant was properly convicted of two violations of section 12280, subdivision (b) unless the exception described in subdivision (a)(3) applies. It does not. The exception in section 12280, subdivision (a)(3) applies when an individual suffers a first conviction under the statute and possesses no more than two firearms, as provided in subdivisions (b) and (c). Subdivisions (b) and (c) provide that such a person may qualify to have a violation of section 12280 punished as an infraction. In order to qualify for an infraction under subdivision (b), the person must prove, among other things, that he or she lawfully possessed the weapon prior to the enactment of sections 12276, 12276.1, or 12276.5, which changed the definition of an assault weapon. Appellant did not do so. Subdivision (c) does not apply to this case because it pertains to the possession of a .50 BMG rifle, which appellant did not have.
Put simply, an individual who possesses two assault weapons and is eligible to have the violations punished as an infraction suffers only one conviction. As appellant did not qualify for the more lenient punishment, each weapon he possessed was a distinct offense. He was properly convicted of two counts of possessing an assault weapon.
DISPOSITION
The judgment is affirmed.
We concur:
EPSTEIN, P.J.
MANELLA, J.