Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS091762
ELIA, J.Chapter 10.68, section 10.68.020 of the Monterey County Code prohibits persons from possessing fireworks on unincorporated county land. Appellant Ross Killian challenges his misdemeanor conviction for possessing fireworks on the ground that there was no evidence presented that he possessed fireworks in unincorporated Monterey County. For reasons that follow, we agree with appellant and reverse his conviction as to his possession of fireworks.
In a petition for writ of habeas corpus, which this court ordered considered with the appeal, appellant contends that trial counsel was ineffective for failing to argue that officers that searched his home violated his Fourth Amendment rights when they took him away from his home in handcuffs and locked him in a patrol car without probable cause. We have disposed of the petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
Facts and Proceedings Below
Shortly before 5 p.m. on July 17, 2009, Monterey County Sheriff's deputies responded to a dispatch from "County Communications" concerning a "verbal domestic disturbance." A telephoned report came from a residence located at 1260 B Highway 101 in Aromas. The deputies who arrived at the residence did not find any signs of an ongoing dispute. Appellant, who was standing in front of the residence when the deputies arrived was calm and cooperative, but the officers handcuffed him, removed him from the front of the house and placed him in the back of a patrol car. Thereafter, they searched appellant's home and outbuildings.
During the search, the officers found shotgun and rifle rounds throughout the house. In addition, the officers discovered two "flashbang" devices, which held 15 grams of flash powder inside a gun metal quality barrel that was designed not to come apart. A member of the Monterey County Sheriff's department who had specialized explosives training testified that when a flashbang device is detonated, gasses vented through ports on the top and bottom attack the "auditory and visual senses" and can stun a person.
In addition to the shotgun, rifle rounds, and the flashbang devices, officers discovered a methamphetamine pipe, two marijuana pipes, a small amount of marijuana at the head of the bed, and a single marijuana plant growing in a shed. In a cardboard box in the living room, the officers found "bottle rockets" and a "mortar type" firework. According to one of the deputy sheriffs who testified at trial, when asked if he knew about the fireworks, appellant nodded.
Appellant was charged by information with illegal possession of ammunition (Pen. Code, § 12316, subd. (b)(1), count one); possession of a destructive device (Pen. Code, § 12303, count two); cultivation of marijuana (Health & Saf. Code, § 11358, count three); possession of controlled substance (Health & Saf. Code, § 11364, subd. (a), count four); and possession of fireworks (Monterey County Code, ch. 10.68, section 10.68.020, count five). The information alleged that appellant had a prior strike conviction within the meaning of Penal Code section 1170.12.
On October 23, 2009, a jury found appellant not guilty of cultivation of marijuana, but guilty of the remaining counts. The court found true the prior strike allegation.
On January 29, 2010, the court sentenced appellant to four years in state prison on count one —double the mid-term pursuant to Penal Code section 1170.12— and imposed a concurrent four year (double the mid-term) sentence on count two. As to counts four and five the court imposed 180 days for each count to be served concurrently to the four year sentence.
Appellant filed a timely notice of appeal.
Discussion
As noted, appellant contends that there was insufficient evidence presented that he possessed the fireworks in unincorporated Monterey County. Appellant concedes that there was evidence that he possessed fireworks in his home, but argues there was no evidence presented that his home was in unincorporated Monterey County.
In cases where we are asked to decide if there is sufficient evidence to support a conviction, we ask whether " ' "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)
Respondent appears to agree that the prosecution was required to prove that appellant possessed the fireworks in unincorporated Monterey County, but argues that it is an incontrovertible fact that rural Aromas lies in two different county locations, a fact supported by testimony from appellant's wife, and is an entirely unincorporated area overlapping both Monterey and San Benito Counties. Respondent argues that although the prosecution did not ask the trial court to judicially notice the fact that Aromas is in unincorporated Monterey County, either as a fact " 'of such common knowledge within the territorial jurisdiction of the court' that it could not 'reasonably be the subject of dispute' (Evid. Code, § 452, subd. (g)), or as a fact 'not reasonably subject to dispute and... capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy' (id., subd. (h)), this court may...." We decline so to do because respondent is missing the point.
On November 4, 2010, this court denied respondent's request for judicial notice. "An appellate court may not on direct appeal from a judgment take judicial notice of or consider matters that were not considered by the trial court...." (People v. Hambarian (1973) 31 Cal.App.3d 643, 662.)
Respondent cites no persuasive authority for the proposition that an essential element, not proved at trial, may be proved on appeal. Respondent's reliance on People v. Vega (1971) 18 Cal.App.3d 954 (Vega) for this proposed procedure is misplaced. In Vega, the defendant was convicted in a court trial of carrying a loaded firearm in a vehicle in a public place in the incorporated City of El Monte. (Id. at p. 956.) On appeal, the defendant argued there had been insufficient evidence that El Monte was incorporated. (Id. at p. 957.) The Second District Court of Appeal concluded that the trial court had impliedly taken judicial notice of the fact that El Monte was incorporated, although the trial court had not followed the statutory notice requirements in so doing. (Id. at p. 958.) This conclusion was permitted since, on appeal, a trial court's judgment is presumed to be correct, and all intendments and presumptions are indulged in favor of the judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.) Since the Second District Court of Appeal followed the judicial notice requirement and received no information to the contrary, the court was able to conclude that "the breach of etiquette in [the trial court] not following section 455 of the Evidence Code [was] harmless beyond a reasonable doubt." (Vega, supra, 18 Cal.App.3d at p. 958.)
In this case, appellant exercised his right to have a jury determine he was guilty of every element of the crime with which he was charged, beyond a reasonable doubt. (U.S. Const., 5th & 6th Amends.) Absolutely no evidence was presented to the jury that where appellant possessed the fireworks was in unincorporated Monterey County as required by the county code. There is no indication that the trial court took judicial notice that Aromas was in unincorporated Monterey County and it did not instruct the jury that such a finding was made. We may not fill in the missing evidence and make a factual finding on an element of the offense that was not submitted to the jury at trial.
Respondent contends that the jury could have drawn the inference that Aromas was in unincorporated Monterey County because appellant's 911 call was received at "County Communications, " a dispatch center, rather than at a municipalities dispatch center; and the fact that the law enforcement authorities who responded were sheriff's deputies was evidence that the responding law enforcement authority with jurisdiction over Aromas was the Monterey County Sheriff's department.
Respondent's position presupposes that there was evidence presented that Monterey County Sheriff's deputies only respond to areas of unincorporated Monterey County. There was not. Similarly, there was no evidence that "County Communications" deals only with incidents arising in unincorporated Monterey County.
No conviction may be sustained unless the record contains substantial evidence supporting each element of the charged offense. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) The concept of harmless error plays no role in an analysis of the sufficiency of the evidence to support a conviction. (See In re Catherine S. (1991) 230 Cal.App.3d 1253, 1258.) If a conviction is unsupported by substantial evidence, it is necessarily reversible. (Ibid.) Accordingly, as there was insufficient evidence of a necessary element of the offense, appellant's conviction for violating Monterey County Code section 10.68.020, must be reversed and double jeopardy bars retrial. (See Burks v. United States (1978) 437 U.S. 1, 11.)
Consequently, we must remand this case to the trial court for resentencing.
Disposition
Appellant's conviction for violating Monterey County Code section 10.68.020 is reversed. The matter is remanded to the trial court for resentencing.
WE CONCUR: RUSHING, P. J., PREMO, J.