Opinion
B228292
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. LONDELL THORPE, Defendant and Appellant.
Tamara Zivot, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA077765)
APPEAL from a judgment of the Superior Court of Los Angeles County. Janice C. Croft, Judge. Affirmed.
Tamara Zivot, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Londell Thorpe appeals his conviction, following a jury trial, for violating Penal Code section 12021, subdivision (a)(1), felon in possession of a firearm. Finding no basis for reversal, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of July 9, 2009, in the city of Altadena, two sheriff's deputies responded to a complaint of loud music disturbing the peace. Upon arriving at the scene, the officers observed five men in the middle of the street drinking from plastic cups. Approximately ten feet away from the men, a GMC Yukon, with the windows down and the engine running, was blaring "extremely loud" music.
As the officers approached in their patrol car, the five men dropped their cups and began to walk in different directions. The officers ordered the men to approach the patrol car and put their hands on the hood. Defendant identified the idling car as his.
As the responding officer, Deputy Abdulfattah, approached the Yukon to shut off the engine, he smelled a strong odor of fresh marijuana emanating from the vehicle. He opened the left front door, and discovered plastic wrapping containing four baggies of marijuana. He also found between the driver's seat and the center console a loaded .45 caliber semiautomatic handgun with a bullet in the chamber. In the back seat of the Yukon, the deputy found a black backpack containing 11 baggies of marijuana, and a laptop bag which contained a MAC-11 loaded with a magazine containing 31 rounds of .9 millimeter ammunition.
The defendant admitted that the marijuana belonged to him. He denied, however, that he knew anything about the guns. When questioned by the deputies whether he had any explanation for why his fingerprints would be on the semiautomatic handgun, defendant stated that he had found the gun on the driver's seat, and had picked it up and placed it between the seat and the center console. Defendant continued to insist, however, that neither gun was his, and that he did not know how, when, or why they ended up in his car.
Defendant was charged with (1) possession of marijuana for sale (Health & Saf. Code, § 11359); (2) felon in possession of a firearm, "to wit, handgun" (Pen. Code, § 12021, subd. (a)(1); and (3) possession of an assault weapon (Pen. Code, § 12280, subd. (b)). Defendant moved to set aside counts 1 and 3 of the information for lack of evidence; the trial court granted the motion as to the first count for possession of marijuana.
Defendant was sentenced to the mid-term of two years in state prison; was given 32 days of custody credits, consisting of 16 actual days and 16 days of good time/work time credit; and was ordered to pay a $30 court security assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $200 restitution fine (Pen. Code, § 1202.4).
Defendant timely appealed his conviction.
CONTENTIONS
Defendant makes four assignments of error on appeal: (1) The trial court erred in failing to give a unanimity instruction; (2) the court failed to request a current probation report for sentencing; (3) the evidence is insufficient to support defendant's conviction for violating Penal Code section 12021; and (4) the court's comments to the jury unduly pressured the jury in its deliberations. Defendant also argues that the cumulative effect of the foregoing errors denied him a fair trial. We consider each contention in turn.
DISCUSSION
1. Unanimity instruction
Defendant maintains that, because the prosecution presented evidence of his possession of two firearms, and failed to elect which firearm it was relying on for the felon-in-possession count, the trial court was required to give the jury a unanimity instruction, such as CALJIC No. 17.01 or CALCRIM No. 3500. Respondent argues both that a unanimity instruction was not required, and that the prosecutor "clearly elected to prove count two through the .45-caliber handgun."
CALJIC No. 17.01 provides in pertinent part: "The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts. However, in order to return a verdict of guilty, all jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts agreed upon be stated in your verdict."
The jury verdict in a criminal case must be unanimous. This means that "the jury must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132, citation omitted, italics in original.) Consequently, where the evidence shows more than one factual basis for a conviction, the prosecution must elect one act to prove the offense, or the court must instruct the jury, sua sponte, that it must unanimously agree on one particular act as the offense. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Curry (2007) 158 Cal.App.4th 766, 783.)
Here, the prosecution introduced evidence that defendant was in possession of two firearms, a semiautomatic handgun found in the front seat of his car, and a MAC-11 assault weapon, which was recovered from a laptop bag located on the left rear seat of the vehicle. Defendant admitted that he moved - and thus actually possessed - the handgun; he denied any knowledge of the assault weapon. The prosecutor argued that defendant constructively possessed the assault weapon, and that his possession of the handgun was both actual and constructive.
"A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses." (People v. Beardslee (1991) 53 Cal.3d 68, 92.) Thus, where two acts of possession are "fragmented as to time or space" such that they were distinct violations of the law, the instruction must be given. (People v. Crawford (1982) 131 Cal.App.3d 591, 599; People v. Wright (1968) 268 Cal.App.2d 196, 198.)
People v. Crawford, supra, 131 Cal.App.3d 591, is instructive. In that case, the police observed two handguns while executing an arrest warrant: the first was located in the defendant's bedroom closet, and the second was holstered at the foot of his bed. Later that day, officers recovered two additional handguns from an upstairs bedroom occupied by an individual named Begley. (Id. at pp. 594-595.)
At trial, the prosecutor presented the two weapons found in the downstairs bedroom as the basis for its case-in-chief on the charge of felon-in-possession. The defendant's girlfriend, who was present at the time of the arrest, testified that the gun in the closet belonged to her, and that she had never seen the defendant possess it. Both she and the defendant denied ever having before seen the holstered gun hanging from the bedpost. On rebuttal, the prosecution was allowed to introduce into evidence the two weapons found in Begley's bedroom upstairs. No unanimity instruction was given. Defendant was convicted of violating Penal Code section 12021. (People v. Crawford, supra, at p. 595.)
The appellate court reversed the judgment, ruling that, under the circumstances of the case, a unanimity instruction was required. The court noted that, where the acts of possession are "substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case." (People v. Crawford, supra, at p. 599.) However, where the facts surrounding the defendant's "possession" of each gun are distinctive, a unanimity instruction must be given. (Id. at pp. 599-600.)
Here, the facts surrounding defendant's possession of each firearm are distinctive: defendant acknowledged that he knew of the presence of the handgun, and in fact admitted to having physically moved it, but denied knowing that the assault weapon was in his car. Thus, either the prosecution was required to elect one act to prove the offense, or the court was required to instruct the jury, sua sponte, that it must unanimously agree on one particular act as the offense constituting a violation of Penal Code section 12021. (People v. Jantz, supra, 137 Cal.App.4th at p. 1292; People v. Russo, supra, 25 Cal.4th at p. 1132.)
Respondent maintains that it elected defendant's actual possession of the semiautomatic handgun as the act underlying the felon-in-possession charge, and quotes portions of the prosecutor's closing argument which refer to defendant's possession of "the loaded .45 semiautomatic" in support of its argument. However, "[i]f the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction. The record must show that by virtue of the prosecutor's statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.) The prosecutor did not do so in this case.
Prior to closing argument, and outside the presence of the jury, the trial court inquired of the prosecutor, "You have some changes on the jury instructions . . . ? What do you have?" The prosecutor responded, "Yes, Your Honor. On [] count 2, the semiautomatic, I wanted to make clear the People - for the jury instruction [on] the gun, this is for the semiautomatic, the .45 only." The following colloquy then ensued:
"The Court: We have count 2 is the - is a firearm. He's not supposed to have any type of firearm.
"[The People]: Yes.
"The Court: Whether it's a .45 or machine gun right?
"[The People]: That's correct, Your Honor. So it's just reading [] firearm?
"The Court: Firearm.
"[The People]: Okay."
From the foregoing discussion we deduce that the prosecutor sought to elect the semiautomatic handgun as the weapon possessed with respect to count 2, felon in possession of a firearm. The trial court, however, indicated that an election was not necessary, and the prosecutor acceded to the trial court's mistaken conclusion. Thus, the jury was not instructed of the prosecution's election.
Moreover, neither the court nor the prosecution made clear to the jury at any other time that count 2 concerned only the semiautomatic handgun. Throughout her argument to the jury, the prosecutor never stated that the People were relying on the semiautomatic handgun to prove the felon-in-possession charge. Indeed, she began her closing arguments by telling the jury that "it's not against the law for certain people to own certain guns. Now, for convicted felons, it's against the law for them to own any type of firearm, to own any type of gun. [¶] Regardless of whether you believe convicted felons should possess loaded .45 semiautomatics or loaded assault weapon described by Deputy Abdulfattah as a submachine, regardless of your position of gun ownership, the law is convicted felons cannot possess any gun." This statement informed the jury that defendant could be convicted of the felon-in-possession count based on either of the weapons found in his car.
The prosecutor continued, "So there's really one question[:] On July 9, 2009, was the defendant in possession of a firearm. That's it. That's what this case is about." And again: "The only question for our determination is on July 9, 2009, did the defendant possess a firearm." Expanding on the argument, the prosecutor stated: "[G]iven that the guns are found in the defendant's car but more importantly so close to his claimed possessions, the drugs, these are more than reasonable grounds for us to believe the defendant was in possession of these firearms and knew about those guns, therefore, being a felon in possession of a firearm."
Clearly, the prosecutor, in her closing arguments, made no attempt to explain to the jury that the evidence regarding the MAC-11 was not to be considered in connection with count 2, but related solely to count 3. Rather, as the above-quoted arguments show, the prosecution sought to convict defendant of being a felon in possession based on either or both of the weapons recovered from his vehicle.
In sum, because the jury was presented with evidence that defendant possessed two firearms, and the facts concerning the two possessions were distinctive, and because the prosecution did not elect the act of possession upon which it sought his conviction of the felon-in-possession charge, the court erred in failing to give the jury a unanimity instruction. We conclude, however, that the error was harmless, whether or not the error be of constitutional dimension. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)
The jury acquitted defendant of possession of an assault weapon. Thus, it would appear obvious that his conviction for felon in possession of a firearm could only have been based on his actual possession of the semiautomatic handgun, and not on his constructive possession of the MAC-11. Defendant posits that "[i]t is likely that at least some jurors acquitted on count three because they had reasonable doubt 'defendant knew or reasonably should have known' that the weapon in the back seat 'had characteristics that made it an assault weapon,' as instructed by the court." Defendant does not identify the facts which would explain why it is likely that the jurors split over which weapon defendant possessed for purposes of the felon-in-possession count, and we can conceive of none. To the contrary, we conclude that no reasonable juror would conclude that defendant was not in possession of the semiautomatic handgun which he admitted to moving, but did possess the MAC-11 which he claimed to be unaware of.
2. Supplemental probation report
The Probation Department prepared a report dated October 8, 2009, two months after defendant's arrest but six weeks before the filing of the information in this case. Due to multiple continuances of his trial date, defendant's jury trial did not commence until mid-September 2009; he was sentenced on September 30, 2010. Relying on California Rules of Court, rule 4.411(c), which provides that a supplemental report is required for "sentencing proceedings that occur a significant period of time after the original report was prepared," defendant maintains that the trial court erred in failing to order a supplemental probation report prior to sentencing.
As defendant explains, the report prepared in October of 2009 "concluded that there were no facts in mitigation. Most of the factors in mitigation came to light after the trial. These mitigating facts included a limited recent criminal history, exemplary work history, dismissal of one charge and acquittal of one charge, and letters of support from his family and employers. Furthermore, since appellant was already convicted, the probation department could have done a more thorough investigation, including interviewing the defendant." Citing People v. Mariano (1983) 144 Cal.App.3d 814, 821, People v. Rojas (1962) 57 Cal.2d 676, 682-683 and People v. Conners (2008) 168 Cal.App.4th 443, defendant concludes that "[t]his case is similar to cases where courts have reversed a defendant's sentence and remanded for preparation of an updated probation report and resentencing."
We do not agree that this case is similar to those relied on by defendant. For example, in People v. Rojas, supra, 57 Cal.2d 676, two defendants were convicted of receiving stolen property; one was sentenced to state prison and the other granted conditional probation. Their convictions were modified on appeal to attempted receipt of stolen property, because the property at issue was not in fact stolen, and the case was remanded for resentencing. In proceedings before the trial court 15 months after the original sentencing hearing, both the prosecution and defense requested a supplemental probation report. The trial court denied the request, stating, "I don't think it is necessary. . . . I don't see any reason for changing the sentence" (id. at p. 679), and again sentenced one defendant to state prison and granted probation to the other. The appellate court ruled that "in refusing to obtain such a report the court failed to comply with the mandate of section 1203 . . . ." (Id. at p. 682.)
Similarly, in People v. Mariano, supra, 144 Cal.App.3d 814, the defendant's sentence was reversed on appeal, and the matter was remanded to the trial court for resentencing. Again, the defense counsel requested preparation of a new probation report "evaluating the desirability of probation or commitment to the Youth Authority in light of the defendant's performance during his two years' imprisonment." (Id. at p. 821.) Without ruling on the request, the trial court stated that it had read the original probation report (which had recommended commitment to the Youth Authority), then over two years old, "and remained convinced that commitment to state prison for 'the mid-term of a serious felony' was the most appropriate disposition." After noting that the defendant had originally been convicted of "two felonies - kidnapping with use of a deadly weapon and assault with intent to commit rape," but on remand "stood convicted of kidnapping with use of a deadly weapon and simple assault, a misdemeanor," the appellate court stated that the trial court "did not have before it at the time of sentencing a report which evaluated sentencing options in the context of the less grave position in which the appellate disposition placed appellant." The reviewing court concluded that "[i]n these circumstances, the court was obliged to obtain a supplemental probation report if, at the time of resentencing, it had authority to consider alternative dispositions to imprisonment such as probation or commitment to the Youth Authority." (Id. at p. 822.)
Finally, in People v. Conners, supra, 168 Cal.App.4th 443, the trial court ordered a supplemental probation report following the defendant's conviction for receiving stolen property and money laundering, because the "probation report [] just has no information whatsoever in it." (Id. at p. 456.) Although the defendant had represented himself at trial, he requested counsel for sentencing, and the court appointed counsel for that purpose. Defense counsel then requested a continuance of sentencing so that he could prepare motions and a sentencing memorandum. The court denied the request and sentenced the defendant to prison.
The foregoing cases are in no way similar to the facts before us. In People v. Rojas, supra, 57 Cal.2d 676 and People v. Mariano, supra, 144 Cal.App.3d 814, the defendants were being resentenced in circumstances substantially different from those present at the original sentencing hearing. Due to these changed circumstances, their counsel had requested that the court obtain a supplemental probation report, and to take those changed circumstances into consideration. The sentencing courts refused the requests for updated reports and failed to take into account the changed circumstances. In People v. Conners, supra, 168 Cal.App.4th 443, the pro se defendant was appointed counsel on the day of sentencing. Although the trial court had stated on the record that the original probation report was essentially useless, and had ordered but not received a supplemental report, the court denied defense counsel's request for a continuance in order to present the court with additional information relevant to sentencing, and sentenced defendant in the absence of a meaningful probation report.
As the Judicial Council Advisory Committee has commented, rule 4.411(c) "does not require a new investigation and report if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances. . . ." (Advisory Com. com., Cal. Rules of Court, rule 4.411.) Here, the probation department prepared a pre-plea report within the preceding 12 months. Defendant's counsel did not request a supplemental report, but filed a sentencing memorandum which recounted all of the factors which counsel argued mitigated against imposition of a prison term. The trial court read and considered both the probation report and the sentencing memorandum. Under these circumstances, the trial court was not required to request, sua sponte, a supplemental probation report.
3. Sufficiency of the evidence
Defendant contends that the evidence was insufficient to sustain the felon-in-possession conviction as to either weapon. With respect to the semiautomatic handgun, defendant argues that the fact that he moved the weapon "was legally insufficient to establish that he actually or constructively possessed the weapon." The argument lacks merit.
Penal Code section 12021, subdivision (a)(1) provides in pertinent part: "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." "A violation of section 12021, subdivision (a) is a relatively simple crime to commit: an ex-felon who owns, possesses, or has custody or control of a firearm commits a felony. Implicitly, the crime is committed the instant the felon in any way has a firearm within his control." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410, fn. and italics omitted.) No specific intent is required; general intent to commit the proscribed act is sufficient to sustain a conviction. (People v. Bray (1975) 52 Cal.App.3d 494, 497.) This is not to say that felon in possession of a firearm is a strict liability crime: the defendant must know that the thing possessed is a firearm. (People v. Snyder (1982) 32 Cal.3d 590, 592; People v. Jeffers (1996) 41 Cal.App.4th 917, 922.)
Defendant cites People v. Jeffers, supra, to argue that there is no evidence that he had the required wrongful intent when he moved the handgun. Jeffers does not support defendant's position.
Defendant's reliance on cases concerning constructive possession of weapons and drugs are inapposite, as defendant admitted that he actually possessed the handgun. Consequently, we do not discuss them.
In Jeffers, the defendant claimed that he did not know that the package he was asked to deliver to a gun shop contained a firearm. (People v. Jeffers, supra, 41 Cal.App.4th at p. 920.) On appeal, he cited as error the trial court's failure to instruct the jury regarding the required criminal intent (CALJIC No. 3.30), and the refusal to give a pinpoint instruction regarding the effect of a felon's lack of knowledge that he possesses a gun on the felon-in-possession charge. (Id. at pp. 920-921.) Under these circumstances, the appellate court ruled that the failure to give a general intent instruction deprived the defendant of his defense, namely, that his temporary possession of the gun was unintentional. (Id. at p. 924.) That holding has no application to the facts of this case, since, unlike the defendant in Jeffers, defendant did not claim that he unwittingly possessed the gun, or that he did not know that it was a gun (for example, by mistaking it for a toy). Rather, he simply claimed that the handgun was not his, and suggested that one of his companions must have put it in the car.
In sum, defendant stipulated that he was a felon. He also told the police officers that he moved the handgun from the seat of his car to the space between the driver's seat and the center console; thus he admitted that he actually, physically possessed the weapon. A defendant's admission of all of the elements of the charged offense is substantial evidence that he committed the charged offense.
Defendant's acknowledgment that he "moved" the gun, followed by his argument that there is no evidence that he had control or dominion over the gun, defies logic. When one picks up a physical object and deliberately places it in a particular location, by definition, one exercises control and dominion over it and thus possesses it.
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4. Gainer error
After the defense had rested, shortly before four in the afternoon on Wednesday, September 16, 2010, the trial court addressed the jury, as follows: "Basically, you have heard all the witnesses in this case. What is going to happen this afternoon, the attorneys are going to go through the jury instructions and law in the case. When you come back tomorrow morning at 10:30, they are going to argue to you what they feel the evidence has shown in this case, and then after they finish the arguments, I will instruct you on the law and the case will be yours. Tomorrow is Thursday. Friday, we are not going on this case. We'll do what we can on Thursday. Then we'll resume on Monday. Have a nice evening, see you tomorrow at 10:30. Thank you very much." Defendant argues the italicized portion of this statement "violated the principles set forth in People v. Gainer (1977) 19 Cal.3d 835, that there be no coercion of a juror to reach a verdict and the individual decision making role of each juror not be diminished." The argument is frivolous.
Gainer error constitutes a very serious violation of a criminal defendant's due process rights. Informing the jurors of when they will be required to be present in court and what will be happening during those times is simple courtesy, having no constitutional implications of any kind.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J. We concur:
TURNER, P. J.
KRIEGLER, J.