Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA098181, Beverly Reid O’Connell, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
James Williams appeals from the judgment entered following a jury trial which resulted in his conviction of two counts of unlawful firearm activity (Pen. Code, § 12021, subd. (c)(1)). Imposition of sentence was suspended and Williams was granted three years probation on the condition he serve 180 days in county jail. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
1. Facts.
At approximately 8:50 a.m. on November 3, 2006, Los Angeles County Sheriff’s Detective Christopher Derry, accompanied by several other deputies, conducted a search of Williams’s apartment at 11623 Centralia Road in Lakewood. After posting a deputy at the rear of the apartment, Derry “banged” on the security screen covering the front door with a flashlight and loudly announced, “ ‘Sheriff’s [D]epartment search warrant, Apartment 11, open the door.’ ” After Derry had made several announcements and received no response, he and the other officers used “breaching tools” to forcibly enter the apartment.
When the door was opened, Derry saw Williams standing in the living room. Derry stepped into the apartment, pointed his gun at Williams and, because he had an arrest warrant for Williams, told Williams that he was under arrest, to turn around and to put his hands behind his back. Williams initially ignored Derry and began to walk toward the rear of the apartment. Derry then raised his voice and again told Williams to stop and put his hands behind his back. This time Williams complied with Derry’s order, was handcuffed and escorted to a police car in the parking lot.
Derry’s supervisor made a video tape of the small, one-bedroom apartment. Several deputies, including Derry, then began to search the premises for guns. On a shelf in the bedroom closet, above the area where men’s clothes were hanging, Derry found a black, zippered container. When Derry unzipped the container he found a loaded .357 revolver from which one round had been fired.
Next to the black container, Derry found a blue plastic box for a Smith and Wesson .38 caliber weapon with some ammunition inside. Underneath some men’s clothing on the closet floor was a green, zippered duffel bag containing a “pistol grip shotgun” and a “lot of 12-gauge ammunition of various types.” More ammunition was found in a zippered pocket on the outside of the bag. On the right side of the closet floor, underneath some men’s clothing, was a plastic container with a wooden box inside. Inside the wooden box, Derry found various types of loose ammunition, a clip of .22 ammunition, a small phone book, and some ear plugs that one puts in one’s ears to protect one’s hearing when shooting.
On the left side of the closet, underneath some women’s clothing, deputies found a safe. Inside the safe was a loaded .45 caliber handgun and a .38 caliber Smith and Wesson revolver loaded with five rounds. The serial number on the .38 caliber revolver was the same as that on the blue plastic box found on the closet shelf. The safe also contained several different kinds of ammunition, a man’s wallet, some photographs of children, a “basic firearm safety certificate” made out to James Williams, a social security card for “James H. Williams, Jr.,” a certificate for a “training loss prevention course” with the name of James Williams on it and a temporary driver’s license made out to James Williams. The safe also contained a child’s toy and some bonds in the name of Lorena Garcia. More children’s toys were strewn about the bedroom.
In attempting to determine who the guns belonged to, Derry “ran the serial number[s] in a California database known as the automated firearm system.” There was no record on file for at least one of the weapons. However, when Derry spoke with Williams’s girlfriend, she told him that several of the guns belonged to her husband, who she no longer lives with. Records from the United States Bureau of Tobacco and Firearms indicated that the pistol grip shotgun had been sold in 1990 by a dealer to a man named Soriano. Two of the guns belonged to Williams’s girlfriend, Garcia.
Los Angeles Sheriff’s Detective Michael Gaitan also participated in the search of Williams’s apartment. Gaitan searched the kitchen and found a Verizon telephone bill and a recent rent receipt in the names of Williams and Garcia.
2. Procedural History.
Following a March 22, 2007 preliminary hearing, on April 5, 2007 an information was filed alleging that on or about November 3, 2006 Williams, after having been convicted of the misdemeanor of threatening another with a weapon, unlawfully possessed, purchased, received and had in his custody a shot gun (count one) and a .357 caliber revolver (count two) in violation of section 12021, subdivision (c)(1).
On July 16, 2007, Williams filed a section 1538.5 motion to suppress evidence and a motion to quash the warrant relied on by law enforcement officers to enter his apartment. At proceedings held on November 5, 2007, Williams and the prosecutor agreed to submit the motions based on the search warrant and affidavit signed by the court.
According to the affidavit, two of Williams’s co-workers had indicated Williams had shown them a gun. As Williams was to be fired from his position and the employer was concerned about “keep[ing] the peace,” police officers were called to the scene. When the officers asked Williams if they could search his car, he told them they could not. After Williams declined to give the officers permission to search the car, the officers detained him and took his keys. The officers returned Williams’s house keys to him and, after being told that he was being terminated from his job, Williams abruptly left the area on foot.
The officers took the car keys out to the parking lot and conducted an inventory search of the car Williams had been driving. In the trunk of the car, which was registered to Williams’s girlfriend, Lorena Garcia, the officers found a loaded, foldable “silver .22 revolver.” A check of the Automated Firearms System (AFS) indicated the gun was registered to Martin Ruelas.
Approximately two hours after impounding the car, police contacted Garcia. She told them that her baby’s father had driven the car to work and that the gun in the trunk belonged to her.
Officers ran a “check” of James Williams’s criminal record and discovered that on April 24, 2000 he had been found to have brandished a firearm in violation of section 417, subdivision (a)(2) and had been sentenced to 16 days in jail for the offense. Further check of the AFS indicated Williams owns two firearms: an FTL semi-automatic .22 caliber weapon and an SX semi-automatic 9-millimeter gun.
On October 30, 2006, a police officer went to Captec, the company where Williams had worked, and interviewed two employees. Both employees indicated Williams had told them he believed the world was a dangerous place and that they needed to arm themselves as he had done. Williams had then shown each employee a stainless steel revolver with a folding handle. When one of the employees later had a disagreement with Williams during which Williams had threatened him, the employee became frightened and told a manager that he had seen Williams at the plant with a gun. The manager telephoned police and, after officers arrived, Williams’s employment with the company was terminated.
A police officer contacted Martin Ruelas, the registered owner of the folding .22 caliber handgun, and asked him if he knew the whereabouts of the weapon. Ruelas told the officer that he had hidden the gun in some pots and pans in his garage. Not knowing the gun was in the pans, Ruelas’s wife had sold them at a garage sale. Ruelas did not know Williams or Garcia.
After the trial court read and considered Williams’s motion, as well as the affidavit in support of the search warrant, defense counsel argued the search of the car and the apartment were illegal. With regard to the car, counsel argued the officers had no probable cause to search it. The officers had no right to keep Williams’s keys. Next, counsel argued the issuance of the warrant for the search of the apartment was improper. The fact that the AFS showed Williams had, at some point in time, registered two weapons did not mean that he still owned them. Counsel stated, “The warrant affidavit indicates that a search indicated that the weapons belonged to Mr. Williams; however, there is no time. When? Where? How? The [silver revolver] they were looking for was gone.”
The People argued there was a “true good faith reliance on the AFS information that the detective ran before getting the search warrant. There is no indication that he, meaning the defendant, no longer owned the weapons. . . . [N]ew additional firearms were registered to [Williams] under AFS. [¶] . . . [The officers] had the right to rely on that information. It [supplied] probable cause to go to the address [where] the defendant lives . . . and to search for those outstanding weapons.” The prosecutor asserted there was nothing in the AFS to indicate that the information was stale.
The trial court denied the motion to suppress evidence and the motion to quash the warrant. The court indicated that, without determining whether the search of the car was proper, given Williams’s criminal record and the information provided by the AFS, the officers had probable cause to search his apartment for the two guns registered to him.
At the beginning of trial, the parties stipulated that Williams “was in fact convicted in San Bernardino County of a misdemeanor which is the basis of his charge now; to wit, a 417.” The trial court then addressed Williams directly and inquired, “Mr. Williams, you have a right to have the People present evidence on every element of the offense including whether or not you were previously convicted of a misdemeanor and whether that misdemeanor was within the last 10 years . . . . [¶] Do you give up those rights and agree and stipulate for purposes of trial that you were convicted of a prohibited misdemeanor that is a violation of Penal Code section 417 and that that was within the last 10 years?” After a brief pause in the proceedings, Williams responded, “Yes, I give it up.”
During deliberations, the jury asked the trial court to explain “unlawful firearm activity.” In response, the trial court indicated, “ ‘Unlawful firearm activity’ . . . ‘[i]n this case means unlawfully possessing a firearm. Please refer to the jury instructions regarding the elements which the People must prove.’ ”
Later in their deliberations, the jury sent to the trial court the following question: “ ‘Does . . . “access” mean possession? . . . If so, why are there only two counts when he had access to four guns? Is there any way to get a clearer definition of “possession”? Was the defendant told “not to be around guns” or just not to “possess” guns?’ ” In response, the trial court sent a note to the jury stating, “ ‘The jury instructions define possession. Please refer to the jury instructions for the definition of possession. Defendant is charged with unlawfully possessing the shotgun and the .357 Magnum only. His possession of the other guns is not before you. You are not to speculate as to why the D.A.’s office charged the case the way it did. Finally, what defendant was told is not before you. You are not to speculate as to what defendant was told. Please refer to the jury instructions regarding the joint operation of act and wrongful intent.’ ”
On September 12, 2007, the jury found Williams guilty of the felony of “unlawful firearm activity,” in violation of section 12021, subdivision (c)(1).
At proceedings held on October 12, 2007, the trial court suspended imposition of sentence and granted Williams three years formal felony probation on the condition he serve 180 days in county jail. The trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45) and a $20 court security fee (§ 1465.8, subd. (a)(1)).
Williams filed a timely notice of appeal on December 11, 2007.
CONTENTIONS
After examination of the record, appointed appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed July 31, 2008, the clerk of this court advised Williams to submit on or before October 1, 2008 any contentions, grounds of appeal or arguments he wished this court to consider. On October 1, 2008, Williams filed a supplemental brief in which he asserted that, in responding to the jurors’ questions, the trial court implied that he possessed four guns. Williams stated: “What I am trying to explain here is, during trial, they had four (4) guns on the table, I was only being charged with two (2) of the guns. The shot gun and the .357 revolver, yet there were two (2) other guns on the table in front of the Jury [sic]. The Judge told the Jury the other two (2) was mine [sic] which was not true but she led the Jury to speculate that if he owns these two guns, why he doesn’t [sic] own the other two that he is being charged for.” Williams continued, “Before the Jury Request form went back to the Jury as noted [in the trial transcript], I was not given the right to have the transcript read back to me nor was my counsel present during deliberation[s].”
DISCUSSION
During their deliberations, the jurors did not ask for the court reporter to read back any testimony. The jury did, however, send to the trial court two questions. Initially, the jury asked, “Can you please clarify ‘Unlawful Firearm Activity’? That differs from the ‘possession’ charge that we understand this is about. Also what does [a]ctivity specifically mean in the charge?”
Before responding to the jury’s inquiry, the trial court read to both counsel and Williams its intended response. After all parties agreed that the response was appropriate, the trial court sent a note to the jury indicating that “ ‘Unlawful firearm activity’ . . . ‘[i]n this case means unlawfully possessing a firearm. Please refer to the jury instructions regarding the elements which the People must prove.’ ”
Later in their deliberations, the jury sent another question to the trial court, asking, “ ‘Does “access” mean possession? If so, why are there only two counts when he had access to four guns? Is there any way to get a clearer definition of “possession”? Was the defendant told not to be around guns or just not to “possess” guns’?”
Before responding, the trial court again consulted with both counsel in Williams’s presence. The trial court then again referred the jury to the instructions, stating, “ ‘The jury instructions define possession. Please refer to the jury instructions for the definition of possession. Defendant is charged with unlawfully possessing the shotgun and the .357 [revolver] only. His possession of the other guns is not before you. You are not to speculate as to why the D.A.’s office charged the case the way it did. Finally, what defendant was told is not before you. You are not to speculate as to what defendant was told. Please refer to the jury instructions regarding the joint operation of act and wrongful intent.’ ”
In Williams’s presence, defense counsel agreed to the trial court’s responses to the jury’s questions. Accordingly, Williams cannot now object to them. (See People v. Harris (2008) 43 Cal.4th 1269, 1317.) In any event, we note that, although the trial court has “a primary duty to help the jury understand the legal principles it is asked to apply[,] . . . [t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Here, the trial court’s responses to the jury’s questions were “balanced, neutral, and correct.” (People v. Neufer (1994) 30 Cal.App.4th 244, 252.) They referred the jury to the appropriate instructions for guidance. (Ibid.) The trial court considered how it could best aid the jury, and instructed it accordingly. (People v. Beardslee, supra, at p. 97.) It did not imply that Williams possessed two of the four guns and thus must have possessed all of them.
APPELLATE REVIEW
We have examined the entire record and are satisfied Williams’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.