Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA323221-01 George G. Lomeli, Judge.
Joan Wolff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert L. Davis and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Victor Wingo appeals from his conviction following a jury trial of two counts of possession of a firearm by a felon. He contends: (1) the judgment was not supported by substantial evidence; (2) certain evidence was improperly admitted; (3) there was prosecutorial misconduct; and (4) ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with assault by means likely to produce great bodily injury; criminal threats; misdemeanor vandalism; and three counts of possession of a firearm by a felon. Prior to jury selection, the People dismissed the first three counts on speedy trial grounds. The jury found defendant not guilty of one of the three firearm counts but guilty of the other two (a.38 caliber revolver and a.380 caliber semi-automatic). After denying defendant’s motion for new trial, the trial court sentenced him to two years in prison concurrent on each count.
A. The People’s Case
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that defendant’s mother owned 1131 W. 47th Street in Los Angeles (the residence) until her death in September 2006. The parties stipulated that in May 2006, defendant registered with the DMV at that address and was still registered there on May 16, 2007. For about six hours that day, approximately 12 Los Angeles police officers watched the residence while defendant remained inside with Marisha Anderson. Detective Jorge Gutierrez spent several of those hours trying to persuade defendant to come out. When defendant did so at about 5:00 p.m., he was arrested. Defendant told Gutierrez that he lived at the residence, in the middle bedroom. After Anderson was also persuaded to come out, she told Gutierrez that she was defendant’s friend and that defendant lived at the residence.
Gutierrez supervised a search of the residence. Among several pieces of mail in the living room, Gutierrez found an envelope from an attorney addressed to defendant at the residence. Another officer found several identification cards scattered on top of a dresser in the middle bedroom (the room defendant told Gutierrez was his). These included:
An unexpired California driver’s license in the name of Kevin Deman Thomas, 164 Orcen Brian Lane, La Puente, but with defendant’s photograph (People’s Exh. 3).
An expired (June 2006) California identification card with defendant’s name and the residence address, but a photograph of someone else (People’s Exh. 4).
An expired (August 2005) Arizona identification card in the name of Quincy Allen Johnson, but with defendant’s photograph (People’s Exh. 5).
There was no testimony as to what address appeared on the Arizona identification card in the name of Quincy Johnson and the exhibit itself is not part of the record on appeal.
The firearms defendant was charged with possessing were found by three different officers, in three different locations. On a walkway along the west side of the house, Gutierrez found a black shaving kit containing a.45 caliber blue steel semi-automatic and a standard magazine for that weapon (People’s Exh. 6). Gutierrez also recovered a.380 blue steel semi-automatic and a magazine for that weapon (People’s Exh. 8) found by another officer in a small, locked metal box in the closet of the middle bedroom (the same room in which the three identification cards were found). And, Gutierrez recovered a.38 caliber blue steel revolver found by a third officer in a box located in a back bedroom in which there was a Jacuzzi and a pile of boxes (People’s Exh. 1). Gutierrez requested a determination whether defendant’s fingerprints were on any of the weapons, but by the time of trial on January 17, 2008, Gutierrez had not received a report indicating whether or not there were any such prints.
The police took into custody a person named Dabney, who came out of the rear yard near where the.45 caliber semi-automatic was found. Dabney was later released. Defendant was acquitted of the charge of possessing a.45 caliber firearm.
B. Defendant’s Case
Anderson testified that she had known defendant for 10 years and was his girlfriend at the time of his arrest and during trial. On May 16, 2007, she was helping him make repairs to his late mother’s home in preparation for selling or renting it. For several years, defendant had been living at 19316 Gunlock Street in Carson; Anderson had stayed with him in Carson on many occasions. Anderson told one of the officers that she was defendant’s girlfriend and that defendant had been living in Carson for at least six months; she did not tell Gutierrez that defendant had been living in Carson for only a few months; she never told him that defendant was the only person who lived at the residence. Defendant introduced into evidence several months of water and gas bills in his name for services at the Gunlock address (Defendant’s Exhs. J and K, respectively).
C. People’s Rebuttal
Gutierrez testified that Anderson told him defendant lived alone at the residence. She did not say anything about the city of Carson. Other officers were present when Anderson made these statements, but Gutierrez could not recall which officers. Gutierrez documented these statements in his report.
DISCUSSION
A. There Was Substantial Evidence That Defendant Possessed Both Guns
Defendant contends there was insufficient evidence to support the judgment. He argues that there was no proof that he “owned the guns, ‘possessed’ them or ‘controlled’ them, had ever used them or been seen with them, and thus no proof of ‘intent’ to possess the gun.” We disagree.
We review defendant’s claim under the well-established rules for determining the existence of substantial evidence to support a jury’s findings: we examine the whole record in the light most favorable to the judgment to determine whether it discloses 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. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. The same standard applies when the conviction rests primarily on circumstantial evidence. (People v. Kraft, supra, 23 Cal.4th at p. 1053.) “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]” ’ [Citation.]” (Id. at pp. 1053-1054.) To warrant rejection of “testimony that has been believed by the trier of fact, the testimony must be inherently improbable. [Citation.] There must exist either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions. [Citation.] Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment. [Citation.]” (People v. Meals (1975) 48 Cal.App.3d 215, 221-222; see also People v. Green (1985) 166 Cal.App.3d 514, 517.)
Any person who has been convicted of a felony and who “owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” (Pen. Code, § 12021, subd. (a)(1).) Actual possession occurs when the defendant exercises direct physical dominion and control over the contraband, however briefly. (People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 867.) An inference of dominion and control is “easily made” when the weapon is found in the defendant’s residence. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.) And shared dominion and control does not preclude conviction. (People v. Williams (2009) 170 Cal.App.4th 587, 625 (Williams).)
In Williams, the defendant was convicted of possession of a firearm and methamphetamine based on evidence that, when the police arrived at the location to execute an arrest warrant naming someone else, the defendant told them that it was his house and that he had been working on the computer in his bedroom. After the defendant and six other men left the house, the officers searched it and, in the room in which the defendant had been working, found: a loaded firearm, mail addressed to the defendant at the address being searched and two pieces of identification in the defendant’s name showing that address. Another gun and some methamphetamine were found in a garage on the property. (Id. at p. 624.) Rejecting the defendant’s challenge to the sufficiency of the evidence to support the convictions, the appellate court found it “amply supported defendant’s convictions of the possession offenses. In arguing that the evidence was insufficient, defendant asks this court to reweigh the evidence and view it in the light most favorable to the defense, contrary to the governing standard of review.” (Id. at p. 625.)
Here, the finding of possession is supported by substantial evidence that the residence was, in fact, defendant’s residence. This evidence includes that defendant told Gutierrez that he lived in the middle bedroom; defendant’s girlfriend, Anderson, told Gutierrez that defendant lived in the residence alone; defendant was registered with the DMV at the residence; during the search police found mail addressed to defendant at the residence as well as several pieces of identification bearing either defendant’s name or photograph. That there was evidence that others might have also lived there (the identification for and mail addressed to Quincy Johnson), even evidence suggesting that defendant lived elsewhere (Anderson’s testimony that defendant lived on Gunlock Street in Carson and the utility bills in defendant’s name for that location), does not establish that it was “physically impossible” for the location to have been defendant’s residence. (People v. Meals, supra, 48 Cal.App.3d at pp. 221-222.) Accordingly, such evidence does not compel a contrary result.
Defendant contends it was an abuse of discretion to admit into evidence the three identification cards over his Evidence Code section 352 objection. As we understand his argument, it is that the challenged evidence was not particularly relevant because the defense could argue that the I.D. cards tended to prove Quincy Johnson or Kevin Thomas and not defendant lived in the middle bedroom where one firearm was found; balanced against this minimal relevance, the evidence was highly prejudicial because it constituted evidence of uncharged misconduct (i.e. identity theft) and was cumulative of Gutierrez’s testimony that defendant admitted he lived in the middle bedroom. We find no error.
The trial court has discretion to exclude even relevant evidence, the probative value of which is substantially outweighed by, among other things, the probability that its admission will create a substantial danger of undue prejudice. (Evid. Code, § 352.) Unduly prejudicial evidence is evidence that evokes an emotional bias against the defendant without regard to its relevance to material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Evidence of uncharged conduct “is so prejudicial that its admission requires extremely careful analysis.” (People v. Lewis (2001) 25 Cal.4th 610, 637.) Its admission “depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.” (People v. Kelly (2007) 42 Cal.4th 763, 783.) Evidence of uncharged misconduct that is cumulative regarding an issue not reasonably subject to dispute may be so prejudicial as to require exclusion. (Id. at p. 769.) We review the trial court’s evidentiary rulings for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113; People v. Mayo (2006) 140 Cal.App.4th 535, 553.)
Here, it was critical for the prosecution to prove defendant lived at the residence where the firearms were found. Because the three identification cards bore different names and photographs, admission of all three was relevant. If only the one card with defendant’s name and the residence address but not his photograph had been admitted, defendant could have argued that the card proved only that the person in the photograph lived there; evidence of the other two cards bearing defendant’s photograph but not his name countered that argument.
The argument that the identifications should have been excluded because they were cumulative of Gutierrez’s testimony also fails. Defendant expressly challenged Gutierrez’s credibility, at one point asking him “your credibility is at issue here; isn’t it?” This overt challenge to the veracity of Gutierrez’s testimony made corroborative evidence particularly significant.
Finally, although the identification card evidence may have suggested that defendant was engaged in identity theft, this is not the kind of evidence that tends to evoke an emotional bias against the defendant without regard to its relevance to material issues. (See e.g. People v. Mendoza (2007) 42 Cal.4th 686, 699 [evidence tending to suggest the defendant was a child molester was not unduly prejudicial where it was relevant to disputed issues of premeditation and motive].)
Under these circumstances, the trial court did not abuse its discretion in admitting the identification cards into evidence.
C. Defendant Has Not Established Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct warranting reversal by arguing to the jury that the only evidence of the existence of a person named Quincy Johnson was the Arizona identification card bearing the name Quincy Johnson but with defendant’s photograph and concluding “maybe there was a Quincy Johnson there. It’s reasonable to assume that Quincy Johnson is this defendant.... There is no evidence presented that another Quincy Johnson exists.” Defendant maintains the statement “falsely suggested to the jury that there is no person named ‘Quincy Johnson’....” when the prosecutor knew Quincy Johnson, a parolee, existed.
“To constitute a violation under the federal Constitution, prosecutorial misconduct must ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citations.] ‘But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 122 (Valdez).)
Here, Gutierrez testified that, other than the Arizona identification card bearing the name Quincy Johnson but with defendant’s photograph, nothing was found to indicate that Johnson lived at the residence. Over the prosecutor’s relevance objection, defendant introduced into evidence an envelope from the County of Los Angeles addressed to Quincy Johnson at the residence, postmarked October 12, 2007, some five months after defendant’s arrest. Gutierrez did not “run” the name Quincy Johnson. Outside the presence of the jury, defense counsel represented to the trial court that there existed a court file that included a probation report for a person named Quentin Johnson at the residence address, but defense counsel had not ordered the court file; defense counsel requested that the court take judicial notice “of a court file that a Quentin Johnson of the same name gave this address.” The trial court responded: “All I can do is. If this exists in a court file, then I can take judicial notice that it exists in a court file. That’s it.” No such court file was ever presented to the trial court; accordingly, the trial court never took judicial notice of it. Thus, no evidence of the alleged probation report was ever introduced.
The evidence introduced at trial in this case fails to establish that the prosecutor’s argument was false. The falsity of the argument depends on the existence of a probation report which indicates that a person named Quentin Johnson lived at the residence (presumably “Quincy” is a sobriquet for “Quentin”). Although defense counsel represented to the trial court that such a document existed and the trial court indicated it would take judicial notice of such a document if it were presented, this did not occur. Under these circumstances, the prosecutor’s argument did not constitute misconduct.
D. Defendant Has Not Established that He Received Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel as a result of his trial counsel’s failure to investigate whether a person named Quincy Johnson lived at the residence. We disagree.
“In order to show ineffective assistance, a defendant must first demonstrate that counsel's performance was deficient. [Citation.] Second, the defendant must show that counsel's deficient performance caused him prejudice. [Citation.] ‘[P]rejudice must be affirmatively proved. [Citations.] “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citations.]’ [Citation.]” (People v. Sizemore (2009) 175 Cal.App.4th 864 [2009 Cal.App. Lexis 1117].) “If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212 (Scott).)
Here, after trial, defendant substituted retained new counsel who filed a motion for new trial on the grounds, among others, of ineffective assistance of trial counsel. The motion was supported by defendant’s and witness Anderson’s declarations.
In her declaration, Anderson states that she gave trial defense counsel “information that Quincy Johnson, whose name was found on one of the identification cards found in the house, was arrested in the house in 2005. We told [trial counsel] that Mr. Johnson’s parole address was the West 47th Street address, and that Mr. Johnson had identified the room where the identification cards and gun were found as his room to his parole agent. [Defendant] gave [trial counsel] one of Mr. Johnson’s parole letters from his parole agent so that [trial counsel] could contact Mr. Johnson’s parole agent to confirm the information.” Defendant makes a virtually identical statement in his declaration, adding only that Johnson “went to prison and was released in 2007” and “the D.A. argued in his closing arguments that I was Quincy Johnson, when Quincy Johnson is a completely different person and we could and should have shown that to the jury!”
The motion for new trial did not include a declaration by trial counsel explaining why he acted or failed to act in the challenged manner. For example, the record does not demonstrate whether counsel attempted to locate the claimed Mr. Johnson or the fruits of that investigation. The moving papers did not include a declaration from Johnson (who, according to the motion is defendant’s cousin) attesting to the fact that he lived at the residence in May 2007. Nor did the motion include a copy of the probation or parole report for Johnson supposedly given to trial counsel. On this record, defendant has failed to establish that trial counsel was ineffective. On the contrary, one obvious explanation is that there may have been no parole or probation report or other evidence to support defendant’s assertion that a man supposedly his cousin, Quincy Johnson, lived at the residence at any relevant time.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J. BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.