Opinion
F072110
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS BRIMAGE, Defendant and Appellant.
Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF158473A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Nicholas Brimage guilty of unlawfully possessing a firearm and ammunition. In a separate bench trial, he was found to have suffered a prior strike conviction within the meaning of California's Three Strikes law and to have served multiple prior prison terms. Consequently, the trial court imposed a nine-year prison sentence.
Brimage seeks review of the denial of a discovery motion made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). He also alleges instructional error and, with regard to the finding of a prior strike conviction, a violation of the Sixth Amendment to the United States Constitution. The latter claim is governed by People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which holds that sentencing courts cannot look beyond "facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea" to determine the nature of a prior conviction. (Id. at p. 136, fn. omitted.)
In resolving the prior strike allegation, the trial court considered not only the record of conviction, but extrinsic evidence regarding the nature of Brimage's prior offense. This constituted error, but it was harmless because the record of conviction plainly revealed the existence of a qualifying felony. There are no grounds for reversal. We thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Brimage is a previously convicted felon with a lengthy criminal history. In September 2013, officers from the Kern County Probation Department searched his mother's home in Bakersfield, where he was then residing. The search uncovered an assault rifle, a revolver, and ammunition. Brimage was later convicted of unlawfully possessing these items and incarcerated.
On November 17, 2014, Brimage was released from confinement and placed on post-release community supervision. He again took up residence in his mother's home. Two weeks later, on December 2, 2014, probation officers searched the house and found prohibited items: a .22-caliber handgun and over 800 rounds of ammunition, including scores of .22-caliber bullets.
Brimage was charged with being a felon in possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count 1) and a firearm (§ 29800, subd. (a)(1); count 2). He was further alleged to have suffered a prior strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and to have served prior prison terms within the meaning of section 667.5, subdivision (b). A defense motion to bifurcate the enhancement allegations was granted. We address the bifurcated bench trial and the aforementioned Pitchess motion in our Discussion, post.
Unless otherwise specified, all further statutory references are to the Penal Code.
In June 2015, counts 1 and 2 were tried before a Kern County jury. The People's case established the facts summarized above. The defense case consisted of testimony from Brimage and his mother. The mother claimed ownership of the gun and ammunition, alleging those items were overlooked by probation officers during the September 2013 search and had remained in her home since that time. Her testimony suggested Brimage would not have known the items were there when he returned to the house in 2014. Brimage denied having any knowledge of the contraband prior to the December 2, 2014 search and seizure. The parties stipulated Brimage was a convicted felon at the time of the search.
Brimage was convicted as charged and all enhancement allegations were found true. The trial court, using count 1 as the principal offense, sentenced him to the middle term of two years, which was doubled to four years because of a prior strike and increased by five consecutive one-year enhancements for his prior prison terms. Punishment for count 2 was stayed pursuant to section 654. The appeal is timely.
DISCUSSION
Pitchess Motion
In Pitchess, the California Supreme Court held that criminal defendants have a limited right to the discovery of peace officer personnel records to ensure "a fair trial and an intelligent defense in light of all relevant and reasonably accessible information." (11 Cal.3d at p. 535.) The process for obtaining such discovery is set forth in sections 832.7 and 832.8, and Evidence Code sections 1043 through 1045. (Chambers v. Superior Court (2007) 42 Cal.4th 673, 679.) "The procedure requires a showing of good cause for the discovery, an in camera review of the records if good cause is shown, and disclosure of information 'relevant to the subject matter involved in the pending litigation.' " (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316, quoting Evid. Code, § 1045, subd. (a).) An appellate court reviews the denial of a Pitchess motion for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
In this case, the defense sought discovery of personnel records for an officer involved in the search of Brimage's residence. The stated purpose was to find evidence of "(1) false statements in reports, (2) fabrication of witness testimony in reports, (3) false testimony, (4) falsification of probable cause and/or reasonable suspicion, (5) acts involving moral turpitude, and (6) any other evidence of complaints of dishonesty" by the officer in question. Brimage asks that we scrutinize the trial court's denial of his request, which was based on the nonexistence of relevant documents. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232 [outlining the steps for evaluating a Pitchess motion at the trial court level and on appeal].) Having reviewed a transcript of the in camera hearing on the Pitchess motion, as well as the confidential materials produced at that proceeding, we conclude the motion was properly denied and find no abuse of discretion.
Alleged Instructional Error
Section 29800 makes it a crime for a convicted felon to own or possess a firearm. " 'The elements of this offense are conviction of a felony and ownership or knowing possession, custody, or control of a firearm.' " (People v. Frutoz (2017) 8 Cal.App.5th 171, 176.) Section 30305 similarly prohibits convicted felons from owning or possessing ammunition.
" 'A defendant possesses a weapon when it is under his dominion and control. [Citation.] A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others.' " (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.)
The trial court instructed the jury with CALCRIM Nos. 2511 and 2591. The instruction for count 1 provided, in pertinent part: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant possessed ammunition; [¶] 2. The defendant knew he possessed the ammunition; [¶] 3. The defendant had previously been convicted of a felony. ... [¶] Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person." The instruction for count 2 repeated the same legal principles and identified the elements of section 29800.
Defense counsel requested that CALCRIM Nos. 2511 and 2591 be supplemented with special instructions, i.e., pinpoint instructions. The proposed instructions read as follows: "[1.] Proof of [o]pportunity to access a place where contraband is stored[,] without more, is insufficient to justify a finding of unlawful possession" and "[2.] The fact that contraband was located in the home of defendant, without more, is insufficient to demonstrat[e] that the defendant knew or possessed contraband." Brimage contends the trial court erred by refusing to give either instruction. We review his claim under the de novo standard. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Shaw (2002) 97 Cal.App.4th 833, 838.)
A trial court is required to instruct jurors on general principles of law relevant to the issues raised by the evidence. (People v. Valdez (2004) 32 Cal.4th 73, 115.) Defendants are entitled, upon request, to additional instructions that pinpoint a theory of the defense case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142 (Gutierrez).) However, the trial court "may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence." (People v. Moon (2005) 37 Cal.4th 1, 30.) "[W]here standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused." (People v. Canizalez (2011) 197 Cal.App.4th 832, 857 (Canizalez).)
Brimage's first proposed instruction is basically an excerpt from People v. Redrick (1961) 55 Cal.2d 282 (Redrick), wherein our state Supreme Court noted that "proof of opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession." (Id. at p. 285.) The trial court, citing Canizalez, supra, rejected the instruction as superfluous. We reach the same conclusion. (See People v. Mendoza (1986) 183 Cal.App.3d 390, 399-400 [no error found under similar circumstances].) Were we to assume the ruling was erroneous, we would reject the claim for lack of prejudice under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. Wharton (1991) 53 Cal.3d 522, 571 [Watson standard of harmless error applies to the erroneous refusal of a pinpoint instruction].) Since the CALCRIM instructions enumerated multiple distinct elements for each offense, including the knowledge requirement, no reasonable juror would have thought Brimage could be convicted based solely on his access to the location where prohibited items were found.
The second proposed instruction is adapted from People v. Monson (1967) 255 Cal.App.2d 689 (Monson). In Monson, "sparse facts" adduced at a preliminary hearing did not permit inferences of defendant's constructive possession of marijuana found inside of a two-bedroom apartment in which a second individual also resided. (Id. at pp. 690-692.) The instruction is potentially misleading since case law holds that residency is a relevant factor, and "no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant's knowledge of the presence of [items] in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control." (Redrick, supra, 55 Cal.2d at p. 287.) In People v. Jenkins (1979) 91 Cal.App.3d 579, the same appellate court that decided Monson said "[t]he inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects." (Id. at p. 584.) Likewise, People v. Harrington (1970) 2 Cal.3d 991 explains how shared residency and presumptive access can support reasonable inferences of knowledge and dominion/control. (Id. at pp. 998-999.)
Regardless of whether the instruction could have been given, defense counsel alluded to Monson in closing argument by telling the jury, "There's a case that says: Just because contraband is found in the defendant's house doesn't mean that person knows about the contraband. It's a case very similar to this case where marijuana was discovered .... Like that case, in this case, we can't assume that [Brimage] knew what was in the room ...." We highlight these statements because the refusal of requested pinpoint instructions has repeatedly been found harmless in cases where counsel's arguments pinpointed the defense theory and the instructions given were accurate and complete. (E.g., Gutierrez, supra, 28 Cal.4th at p. 1144 [no prejudice where standard instructions "adequately covered the valid points in the proposed pinpoint" and "counsel's argument to the jury fully explicated the defense theme"]; People v. Hughes (2002) 27 Cal.4th 287, 363 ["Any lingering doubt that we could have concerning a reasonable juror's understanding of the [subject principle] is dispelled by defense counsel's unrebutted closing argument, in which he emphasized and 'pinpointed' for the jury the defense theory ...."].) Again, assuming error may be found, the claim fails for lack of prejudice.
Sixth Amendment Claim
The prior strike allegation was based on a 1998 conviction for aggravated assault in violation of former section 245, subdivision (a)(1). (Stats. 1993, ch. 369, § 1.) Effective January 1, 2012, the Legislature amended section 245 "to separate the prohibitions against assault 'with a deadly weapon' and assault 'by any means of force likely to produce great bodily injury' into different subdivisions." (Gallardo, supra, 4 Cal.5th at p. 125, fn. 1.) Prior to that date, subdivision (a)(1) referenced both forms of the offense and thus contained alternative elements. A conviction under current and former versions of section 245 qualifies as a strike "if the assault was committed with a deadly weapon, but not otherwise." (Gallardo, supra, 4 Cal.5th at p. 123; see § 1192.7, subd. (c)(23).) Therefore, it was the People's burden to show Brimage was previously convicted of assault with a deadly weapon.
Because the bench trial concerned the prior strike and prior prison term allegations, the People introduced certified records of multiple felony convictions. People's Exhibit No. 10 was a register of actions from the 1998 case, which showed Brimage pleaded nolo contendre to "a violation of PC 245 (A)(1)" and was advised at sentencing "that this is a 'strike' prior." Defense counsel argued the docket entries were insufficient to prove Brimage was convicted of a qualifying offense. In response, the prosecutor cited People's Exhibit No. 13, which was a certified section 969b packet that showed, inter alia, a 2000 conviction of resisting an executive officer (§ 69), for which Brimage had received double punishment based on a prior strike conviction. The trial court found this probative, stating, "That actually is an interesting point." Moments later, the court issued its ruling:
"All right. The Court has read and considered People's 10, People's 11, People's 12, and now People's 13. Based upon that evidence, the Court finds that it's true the allegations in both counts 1 and 2 - prior conviction, 667(e), given the totality of all the evidence, that the strike in both of those counts, counts 1 and 2, is proven true."
Brimage claims the trial court engaged in prohibited factfinding in violation of his right to a jury trial under the Sixth Amendment as interpreted by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). The parties agree the issue is controlled by the recent decision in Gallardo, supra, which was still pending before the California Supreme Court when their briefing was submitted. Nevertheless, the People contend Brimage forfeited or waived the issue by failing to make any federal constitutional objections at the time of trial. The Gallardo opinion includes a discussion about forfeiture that seems to cast doubt on the People's position. (4 Cal.5th at pp. 126-128.) In any event, we feel it is proper to address Brimage's claim on the merits, if for no other reason than to forestall a habeas petition alleging ineffective assistance of counsel. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Lewis (1990) 50 Cal.3d 262, 282.)
Nearly 18 years ago, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury ...." (Apprendi, supra, 530 U.S. at p. 490.) Six years later, in People v. McGee (2006) 38 Cal.4th 682 (McGee), the California Supreme Court ruled "that Apprendi does not preclude a court from making sentencing determinations related to a defendant's recidivism." (Id. at p. 707.) However, "the inquiry is a limited one and must be based upon the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted. ... The need for such an inquiry does not contemplate that the court will make an independent determination regarding a disputed issue of fact relating to the defendant's prior conduct [citation], but instead that the court simply will examine the record of the prior proceeding to determine whether that record is sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law." (Id. at p. 706.)
Subsequent decisions by the United States Supreme Court, e.g., Descamps v. United States (2013) 570 U.S. 254 (Descamps), were seemingly at odds with portions of McGee. In particular, McGee had held that "[i]f the enumeration of the elements of the offense does not resolve the issue [of whether defendant suffered a qualifying conviction], an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law." (McGee, supra, 38 Cal.4th at p. 706.) The Descamps opinion, in contrast, disapproves of allowing a sentencing court "to try to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct" because "[t]he Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt." (570 U.S. at p. 269.)
The McGee opinion condoned a trial court's review of preliminary hearing transcripts from two Nevada cases to determine if the defendant's prior robbery convictions qualified as strikes under California law. (McGee, supra, 38 Cal.4th at pp. 687-689, 707.) In Gallardo, the legality of such procedures was reevaluated. As in the present case, the Gallardo defendant was alleged to have suffered a prior strike based on an assault conviction under a pre-2012 version of section 245. (Gallardo, supra, 4 Cal.5th at p. 123.) A bench trial on the allegation resulted in a true finding, but the trial court's "sole basis for concluding that defendant used a deadly weapon was a transcript from a preliminary hearing." (Id. at p. 136.) Our state Supreme Court, upon consideration of Descamps and other United States Supreme Court decisions, concluded the trial judge had engaged in constitutionally prohibited factfinding. (Gallardo, supra, 4 Cal.5th at pp. 134-137.)
According to Gallardo, "The trial court's role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in 'judicial factfinding that goes far beyond the recognition of a prior conviction.' " (4 Cal.5th at p. 134, quoting Descamps, supra, 570 U.S. at p. 255.) Therefore, "a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Gallardo, supra, 4 Cal.5th at p. 136, fn. omitted.)
The Gallardo opinion makes clear that "determinations about the nature of prior convictions are to be made by the court, rather than a jury, based on the record of conviction." (4 Cal.5th at p. 138.) A record of conviction does not include preliminary hearing transcripts, hence the finding of error in Gallardo. (Id. at pp. 136-137.) As a remedy, the case was remanded "to permit the People to demonstrate to the trial court, based on the record of the prior plea proceedings, that defendant's guilty plea encompassed a relevant admission about the nature of her crime." (Id. at p. 139.) "Such a procedure fully reconciles existing precedent with the requirements of the Sixth Amendment." (Id. at p. 138.)
Here, the trial court erred by attempting to draw inferences about the nature of Brimage's 1998 assault conviction from materials outside the record of conviction, i.e., from evidence relating to his 2000 conviction for resisting an executive officer. It is unclear whether our state Supreme Court would consider the register of actions from the 1998 case to be part of the record of conviction, and the trial court may have nevertheless engaged in prohibited factfinding by drawing inferences from a strike advisement given at the time of sentencing. Had this been the only relevant material before the trial court, we would have to reverse the strike finding and remand for a new bench trial. (See Gallardo, supra, 4 Cal.5th at pp. 137-139.) We find the error harmless, however, in light of a key piece of evidence. People's Exhibit No. 13, upon which the trial court expressly relied, contains the abstract of judgment for the 1998 conviction. The abstract shows Brimage was convicted by plea of violating former section 245, subdivision (a)(1), and contains an abbreviated notation of the offense: "ADW."
As explained in People v. Delgado (2008) 43 Cal.4th 1059 (Delgado), an abstract of judgment is an "officially prepared clerical record of the conviction and sentence." (Id. at p. 1070, original italics.) In the absence of rebuttal evidence, an "officially prepared abstract of judgment that clearly describes the nature of the prior conviction" is presumed reliable and accurate. (Id. at pp. 1070-1071.) If the abstract describes a qualifying offense under the Three Strikes law, it constitutes prima facie evidence that a qualifying conviction occurred. (Id. at pp. 1066, 1070.)
In Delgado, the California Supreme Court affirmed a trial court's finding of a prior strike based on an abstract of judgment that "specified the statute violated as '[Penal Code section] 245(A)(1)' and described the crime as 'Asslt w DWpn.' " (43 Cal.4th at p. 1063.) The justices unanimously agreed the "Asslt w DWpn" notation "clearly described only one of the two means by which the statute can be violated," and that the trial court "was not required to assume the descriptive language was mere surplusage." (Id. at p. 1071.)
We perceive no material distinction between the "Asslt w DWpn" notation in Delgado and the "ADW" abbreviation used in this case. Both are clearly shorthand for assault with a deadly weapon and cannot reasonably be construed otherwise. Since the abstract of judgment for Brimage's 1998 conviction was alone sufficient to establish the elements admitted by virtue of his plea, the trial court's procedural error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
SMITH, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------