Opinion
E068671
09-07-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM PATRICK MILL MCCORD, Defendant and Appellant.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1700256) OPINION APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant, William Patrick Mill McCord, guilty of being a felon in possession of ammunition. (Pen. Code, § 30305, subd. (a); count 1.) Defendant admitted he had suffered three prior prison terms. (§ 667.5, subd. (b).) The court sentenced defendant to an aggregate term of imprisonment of four years four months, consisting of the following: the low term of 16 months on the count 1 offense and a consecutive one-year term on each of the three prior prison term enhancements. On appeal, defendant contends the court erred by denying him probation, declining to strike the prior prison term enhancements, and by not issuing a sua sponte jury instruction on momentary possession. (CALCRIM No. 2305.) Defendant additionally maintains his trial counsel provided constitutionally ineffective assistance of counsel (IAC) by failing to request the instruction on momentary possession. We affirm.
All further statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL HISTORY
On February 25, 2017, officers were dispatched to a residential area in San Jacinto in response to a 911 call alleging a suspicious man was parked in a vehicle and was covering the windows. One of the arriving officers went up to the white Honda Accord hatchback station wagon and made contact with defendant, who was in the driver's seat. Defendant told the officer he was waiting for a friend; defendant said he had purchased the vehicle from his son-in-law, Alex.
The officer conducted a records check of the vehicle; the check reflected the vehicle was registered to an Alex Lane. The officer conducted a search of the vehicle; he discovered a backpack filled with ammunition in the hatchback area. After reading defendant his Miranda rights, which defendant waived, defendant said he knew the ammunition was in his vehicle and knew that he was prohibited from possessing it. Defendant said he was taking the ammunition to a recycling plant to recycle the brass.
Undisclosed to the jury were the facts that defendant was on mandatory supervision and an active bench warrant had been issued for his arrest.
Miranda v. Arizona (1966) 384 U.S. 436.
The officer counted the ammunition, finding 52, .243-caliber rounds and 43, .720-caliber cartridges, for a total of 95 rounds. The officer photographed the ammunition; the photographs were shown to the jury. The officer then placed the ammunition in the hazardous canister in the evidence room at the police station. A few weeks later the officer retrieved the ammunition from the canister and booked four rounds into evidence. Those four rounds were shown to the jury. The officer opined the rounds were "live." Another officer successfully test fired another one of the rounds. The defendant and People stipulated defendant had previously sustained a felony conviction.
Defendant's ex-wife testified that her current husband was a hunter who kept ammunition in their garage. She recognized a picture of the backpack and ammunition retrieved from defendant's vehicle as belonging to she and her husband. Alex Lane was her daughter's boyfriend. He owned a white Honda Accord station wagon which he was either selling or giving to defendant because defendant was helping her family around the house. Defendant's ex-wife testified the backpack and ammunition were kept in her garage; they had been clearing out their garage, moving things into Lane's vehicle to be taken to the dump.
Roger Lemasters testified he looked at pictures of the ammunition taken from the vehicle. He opined "some of the cartridges appear to be extremely corroded and possibly compromised." Lemasters could not tell if the ammunition was actually corroded without physically examining it. He testified there is no way to tell whether ammunition is "live" simply by looking at it.
II. DISCUSSION
A. Denial of Probation
Defendant contends the court abused its discretion in declining to grant him probation. We disagree.
In his sentencing memorandum, defense counsel requested that the court grant defendant probation, but neglected to note that defendant was statutorily ineligible for probation unless the court found defendant's case unusual. In the memorandum, defense counsel noted as mitigating factors that, in the current case, defendant was unarmed and had inflicted no injury. Counsel noted defendant suffered from substance abuse problems, was able to comply with any conditions of probation, that both he and his children would suffer deleterious effects if he were sentenced to prison, that he was remorseful, and that he was not a danger to the community.
The People requested defendant be sentenced to an aggregate term of five years in prison, the midterm of two years on the count 1 offense and consecutive terms of one year for each of the three prior prison term enhancements. The People noted defendant had six prior felony convictions, was on mandatory supervision when he committed the instant offense, and had violated the terms of his supervision on numerous occasions.
The probation officer's report recommended an aggregate prison sentence of four years four months, consisting of the low term of 16 months on the substantive offense and consecutive terms of one year for each of the three prior prison term enhancements. The probation officer noted that "but for the ineligibility for probation he would have likely been granted probation." The probation officer's report reflected defendant had sustained eight prior misdemeanor convictions and seven prior felony convictions; two of the felony convictions had been reduced to misdemeanors pursuant to section 1170.18. The report reflects defendant had sustained nine prior violations of probation.
There is a discrepancy between the People's enumeration of defendant's criminal history and that contained in the probation officer's report. The People indicated defendant had sustained a felony conviction for receipt of stolen property (§ 496d) on May 12, 2014; the probation officer's report lists that conviction as one for misdemeanor theft (§ 490.5).
A profile of defendant determined his violent recidivism risk to be medium; his general recidivism risk was rated as high. When granted mandatory supervision on the last occasion, defendant had reported once, but failed to report again. Thus, the probation officer concluded, in conflict with his previous statement, that "given [defendant's] prior lack of compliance, he appears to be an unsuitable candidate for probation and a flight risk."
The court noted: "He is statutorily ineligible unless I can find unusual circumstances, and I do not find unusual circumstances. I think the case is a bit unusual, but not his criminal history, by any means. He was on mandatory supervision at the time the offense was committed. He's walking a fine line. There was a warrant out for his apprehension on that because he wasn't complying with those terms. So I'm going to deny probation and sentence him to state prison."
"Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] . . . [¶] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony." (§ 1203, subd. (e)(4).) "[A] felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years." (§ 1170, subd. (h)(1).)
"A trial court has broad discretion to determine whether a defendant is suitable for probation. [Citation.] . . . An appellant bears a heavy burden when attempting to show an abuse of such discretion. [Citation.] To establish abuse, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason. [Citation.]" (People v. Bradley (2012) 208 Cal.App.4th 64, 89.) "'California courts have long held that a single factor in aggravation is sufficient to justify a sentencing choice . . . .' [Citation.]" (People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.)
Here, defendant was statutorily ineligible for probation unless the court found defendant's case unusual. The court's finding that defendant's case was not unusual finds substantial evidence in the record. As the court noted, defendant's criminal history was not insignificant. Defendant had sustained eight prior misdemeanor convictions and seven prior felony convictions; although two of the latter convictions had been reduced to misdemeanors pursuant to section 1170.18. Four of defendant's felony convictions included violent offenses: two convictions for battery and two convictions for cohabitant abuse. Defendant had sustained nine prior violations of probation. As also noted by the court, defendant was on mandatory supervision at the time he committed the instant offense; in fact, he was already in violation of the terms of his supervision for which a bench warrant had been issued. These factors support the court's exercise of its discretion in declining to grant defendant probation. B. Refusal to Strike Prior Prison Term Enhancements
Defendant contends the court abused its discretion by declining to strike all three of his prior prison term enhancements. We disagree.
Defense counsel did not expressly request the court to strike the prior prison term enhancements in his sentencing memorandum; although his request that the court grant defendant probation would necessarily require this. Counsel did explicitly request the court to strike the prior prison term enhancements at the sentencing hearing. After hearing argument on the matter, the court rendered its ruling: "As far as the [section] 667.5[, subdivision] (b) priors, there are three of them. I'm not going to strike any one of them. Once again, I'm going back to the fact that he was on mandatory supervision, a man that should have known this is it. I can't be doing this sort of activity at all anymore no matter what my circumstances are. Ask for help, go to probation, . . . but he didn't."
"[A] section 667.5, subdivision (b) prior prison term enhancement may be stricken pursuant to section 1385, subdivision (a). [Citations.]" (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561; People v. Bradley (1998) 64 Cal.App.4th 386, 391-396.) The court has broad direction under section 1385. (People v. Clancey (2013) 56 Cal.4th 562, 579-580.)
Here, again, the record amply supports the court's decision not to strike defendant's prior prison term enhancements. As the court pointed out, defendant was on mandatory supervision at the time he committed the instant offense and defendant knew he was prohibited from possession of ammunition, yet he committed the act regardless. Defendant's criminal history, as recounted above, further supports the court's determination not to strike defendant's prior prison term enhancements. The court's decision was within its discretion. C. Failure to Instruct Sua Sponte on Momentary Possession
Defendant contends the court erred by not issuing a sua sponte jury instruction on momentary possession. (CALCRIM No. 2305.) We disagree.
"The trial court must instruct sua sponte as to defenses '"'that the defendant is relying on . . . , or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'"' [Citation.]" (People v. Rangel (2016) 62 Cal.4th 1192, 1224.) The court should instruct the jury with the transitory possession instruction in cases where the defendant's "momentary handling" of the illicit item occurred only immediately prior to abandoning it. (People v. Mijares (1971) 6 Cal.3d 415, 423 [judgement reversed where the court failed to sua sponte instruct jury on transitory possession of narcotics where the defendant grabbed the narcotics and immediately disposed of them]; accord, People v. Martin (2001) 25 Cal.4th 1180, 1191-1192 ["We conclude that the defense of transitory possession devised in Mijares applies only to momentary or transitory possession of contraband for the purpose of disposal, and that the trial court did not err in refusing defendant's requested instruction" where the defendant maintained possession of the narcotics when apprehended].)
CALCRIM No. 2305 provides: "If you conclude that the defendant possessed __________ <insert name of controlled substance>, that possession was not illegal if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that: [¶] 1. The defendant possessed __________ <insert name of controlled substance> only for a momentary or transitory period; [¶] 2. The defendant possessed __________ <insert name of controlled substance> in order to (abandon[,]/ [or] dispose of[,]/ [or] destroy) it; [¶] AND [¶] 3. The defendant did not intend to prevent law enforcement officials from obtaining the __________ <insert name of controlled substance>. [¶] The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the three listed items is true."
Defendant cites to no case, nor can we find one, which extends the momentary possession defense to possession of ammunition by a prohibited person. Nearly every case cited by the parties deals with possession of controlled substances as provided in the instruction itself. Defendant cites to People v. Hurtado (1996) 47 Cal.App.4th 805 for authority that the doctrine of momentary possession would extend to possession of ammunition by a prohibited person: "We are convinced the 'momentary possession' defense recognized in Mijares extends to possession of a firearm by a felon offenses." (Id. at p. 814, italics added.) Notably, Hurtado did not extend the momentary possession defense to cases of possession of ammunition. Moreover, the court in People v. Pepper (1996) 41 Cal.App.4th 1029, contrary to Hurtado, held that, "as a matter of law," the defense of transitory possession was not available to a defendant who possessed a firearm as a prohibited person. (People v. Pepper, supra, at p. 1038 ["To the extent a convicted felon's transitory possession of a firearm . . . constitutes a crime, the law favors [the unavailability of the transitory possession defense] due to the grave threat to public safety posed by even the momentary possession of firearms by persons who, once in possession of guns, are more likely to use them for improper purposes."].) Thus, there is a split of authority as to whether a court should instruct a jury on momentary possession for any offense other than possession of controlled substances.
Regardless, there was no evidence defendant's possession of the ammunition was momentary. (People v. Martin, supra, 25 Cal.4th at p. 1191 [disapproving of the court's holding in People v. Cole (1988) 202 Cal.App.3d 1439, that expanded "the momentary possession defense to lengthier possession incidental to the defendant's intent to dispose of controlled substances . . . ."]; People v. Sullivan (1989) 215 Cal.App.3d 1446, 1452-1453 [defendant not entitled to transitory possession instruction where facts established his possession was not "momentary"; defendant removed methamphetamine from shed, placed it in the front seat of his truck, drove off, and put it in his pocket after being pulled over]; People v. Frazier (1998) 63 Cal.App.4th 1307, 1312 [defendant not entitled to transitory possession instruction where he found the methamphetamine the night before his house was searched, gave them to his wife to dispose of, but drugs were found the next day in plain view on the headboard of defendant's bed and on the shelf in defendant's closet]; People v. Hurtado, supra, 47 Cal.App.4th at pp. 814-815 [defendant not entitled to transitory possession instruction because his possession of the firearm could not be characterized as momentary].) Here, defendant presented no evidence of how long he possessed the ammunition. (CALCRIM No. 2305 ["The defendant has the burden of proving this defense by a preponderance of the evidence."].)
Defendant's ex-wife testified she recognized the backpack and ammunition as coming from her garage at her home in Canyon Lake. Her family was cleaning out their garage by moving objects therein into the white Honda Accord. Defendant's daughter's boyfriend intended to give or sell that vehicle to defendant for helping them around the house. Implicit in defendant's ex-wife's testimony is the inference that the ammunition and backpack were placed in defendant's car at some unknown date and time at her home in Canyon Lake.
However, defendant was apprehended with the ammunition in a residential community in San Jacinto after he had been parked there long enough to attract suspicion, which generated a 911 call. Defendant informed the officer that defendant was going to take the ammunition to the recycling plant to recycle the brass, but he had been parked for some time in the same spot, in another city from where he obtained the ammunition, was not moving when he was detained, and never provided the location where he intended to recycle the ammunition. Thus, insufficient evidence supported a determination that defendant's possession of the ammunition was "momentary" or that he was actually attempting to dispose of it. The court was not required to issue the instruction on its own motion. D. IAC
Defendant contends defense counsel rendered constitutionally IAC by failing to request the instruction on momentary possession. We disagree.
"'"'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when 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."'" [Citation.] [¶] Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." [Citation.] Defendant's burden is difficult to carry on direct appeal, as we have observed: "'Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.'" [Citation.]' [Citation.] If the record on appeal '"'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected,"' and the 'claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 875-876.)
Defendant has not shown that defense counsel's performance was deficient or that defendant suffered any prejudice because, as discussed above, insufficient evidence supported giving the instruction on momentary possession. Thus, even if defense counsel had requested the court to instruct the jury on momentary possession, the court would have denied the request for insufficient evidence. Thus, defense counsel did not provide IAC.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.