Opinion
NOT TO BE PUBLISHED
Received for Posting 12/6/10
Lake County Super. Ct. No. CR911988
Dondero, J.
Defendant Hugh Stephen Watt appeals from the judgment entered following a jury trial which resulted in his convictions of furnishing marijuana to a minor and of being a felon in possession of a firearm. He contends the trial court erred in denying his request to instruct the jury on mistake of fact as to the minor’s age. He further claims there was insufficient evidence that he possessed the firearm in question. We affirm.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
On June 19, 2008, an information was filed against defendant charging him with one count of possession of a firearm having previously been convicted of a felony (Pen. Code, § 12021, subd. (a)(1)), and one count of furnishing marijuana to a minor over the age of 14 years (Health & Saf. Code, § 11361, subd. (b)).
All subsequent statutory references are to the Penal Code except as otherwise indicated.
On January 28, 2010, a jury found defendant guilty of both counts.
On March 26, 2010, the trial court sentenced defendant to state prison for an aggregate term of four years eight months. This appeal followed.
I. The Prosecution
On March 15, 2007, Stacey, who was almost 14 years old, was hanging out with her friend Sarah in Clearlake. In the late afternoon or early evening, they were walking to a youth group meeting when a man driving a green jeep-type vehicle approached them. He asked them if they wanted to smoke some marijuana. Stacey declined because she did not want to get in a car with a stranger, but Sarah decided to go with him. Stacey warned Sarah that she had better come to the youth group meeting. When Sarah did not show up, Stacey became worried and called the police.
Sarah testified that she was born in April 1991. On March 15, 2007, she was walking with Stacey when she was approached by defendant who was driving a green car. He told the girls about a concert in Petaluma and then asked if they wanted to smoke marijuana. Sarah got in his car, but Stacey did not. Sarah smoked marijuana with defendant. She testified she did not remember whether the marijuana belonged to her or defendant. She had smoked marijuana with Stacey earlier that same day and had also taken some pills.
At around 7:15 p.m. on March 15, 2007, Officer Sarah Hardisty received a dispatch regarding a possible child abduction. She went to the reporting party’s location and spoke with Stacey. Based on the information she received, Hardisty completed a missing person’s report. About an hour later, Hardisty was told that the missing person had been located at a Shell gasoline station on Lakeshore Drive. At the gas station, she saw defendant and Sarah. Sarah appeared to be lethargic and “almost sleepy.” Hardisty asked defendant why he picked up a 14-year-old girl, drove her to an unspecified location, and smoked weed with her. He responded that he didn’t know she was 14, he was new to the area and he was trying to make friends. Sarah told the officer the marijuana she smoked was provided by defendant.
We note Sarah was actually 15 years old.
Hardisty arrested Sarah after finding pills and marijuana in her possession. She arrested defendant for violating Health and Safety Code section 11361, subdivision (b). At some point, she went with her fellow officers to search a home in Clearlake. She went to that particular house after defendant provided a description of a house that he was staying in. Tara Watt was at the home and indicated that she knew defendant. The officers found a Mossberg shotgun in a bedroom closet. They also found two bills addressed to defendant in the home.
Officer Michael Ray also responded to the Shell station on the evening of March 15, 2007. After he arrived, he saw defendant and a female exiting a green Ford Explorer. He spoke with defendant and noticed that he smelled of marijuana. Defendant told Ray that he had about two ounces of marijuana in the vehicle and that he had a medical marijuana recommendation. When he showed Ray his recommendation, Ray noticed that it had expired. After learning defendant was on searchable felony probation, Ray searched the vehicle and found a canvas bag that contained several zip-locked bags of marijuana. When the officers asked defendant where he lived, he said he did not know the address but he gave them directions to get to the house in Clearlake. Before going to the house, Ray asked defendant if there were any firearms in the house. Defendant told him that there was a shotgun.
John Sutton testified that he knew defendant because defendant had a relationship with his daughter. Sutton had visited his daughter and defendant at their home in Clearlake. His daughter owned a shotgun. Sutton saw defendant handle the shotgun when he helped them move to Clearlake in 2006. Defendant told him that his daughter bought the shotgun for protection because they both were being threatened by someone when they lived in Santa Rosa. Defendant also told Sutton that he was not living at the house in Clearlake.
II. The Defense
Defendant’s friend Jason DiPatri testified that defendant had separated from Tara and had moved to his (defendant’s) father’s apartment in Petaluma in 2006. Defendant was living in Petaluma between January and April 2007.
Officer Shane Roth testified that he followed defendant’s car to the Shell station and asked defendant and Sarah to exit the vehicle. Roth did not notice any odors coming from defendant or the car. Defendant’s eyes were not red or watery.
Defendant testified at trial. He stated that he was living with his wife Tara during 2006. He moved to his father’s place in December of that year because he was splitting up with Tara, and because they had been threatened by their former roommate. Defendant helped Tara load up the truck when she moved to Clearlake. At that time, a condition of defendant’s probation required him to live in Sonoma County. He would sometimes travel to Tara’s house to visit his daughter. He moved to Lake County after his probation ended.
Defendant was familiar with Sarah because the two had corresponded on MySpace regarding his music. On March 15, 2007, he recognized Sarah from the photographs on her MySpace page, and he drove his car over to her to give her a flier for an upcoming show. When he saw that she was wearing a necklace with a marijuana leaf, he asked her if she smoked weed. She said “yeah,” and asked him if he wanted to smoke. He agreed and she got into his car. They went to a park and she pulled a pipe and a jar out of her purse. She took a hit off the pipe and passed it to him but it was empty. He did not see her breathe any smoke. At that point, he decided to take her home because she was not coherent. He ended up at the Shell station because that was where Roth pulled him over. Defendant tried to tell the officers that he lived in Sonoma County, but they did not listen to him. He testified he has a medical condition and did have an updated medical recommendation at the time of his arrest, but he had an expired one in his wallet. As to the shotgun, he denied that he had ever handled it.
On cross-examination, defendant stated that sometimes he did stay overnight at his wife’s house when he was visiting his daughter. He also testified Sarah had told him she was 19 years old. As noted above, the jury found defendant guilty of both counts.
DISCUSSION
I. Standards of Review
The trial court must instruct on “general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) On appeal, a reviewing court independently reviews the trial court’s decision to disallow an instruction. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
When asked to decide the sufficiency of the evidence, an appellate court reviews the entire record and determines whether there is substantial evidence that could lead a reasonable trier of fact to find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value....” (Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) The appellate court does not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.)
II. Failure to Give Mistake of Fact Instruction Regarding Sarah’s Age
Health and Safety Code section 11361, subdivision (b), provides: “Every person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a minor 14 years of age or older shall be punished by imprisonment in the state prison for a period of three, four, or five years.” At the close of trial, defendant’s counsel asked the trial court to instruct the jury on the defense of reasonable mistake of fact regarding Sarah’s age. The trial court refused to give the requested instruction, relying on People v. Williams (1991) 233 Cal.App.3d 407 (Williams), People v. Goldstein (1982) 130 Cal.App.3d 1024 (Goldstein), and People v. Lopez (1969) 271 Cal.App.2d 754 (Lopez). Defendant claims this refusal was error. We disagree.
Mistake of fact as to a victim’s age can be a valid defense under certain circumstances. In People v. Hernandez (1964) 61 Cal.2d 529, the California Supreme Court held that a defendant’s good faith, reasonable belief that his or her underage sex partner was 18 or older can be a defense to a charge of statutory rape under former section 261, subdivision (1), now section 261.5. (Hernandez, supra, at p. 536.) The high court observed: “ ‘ “At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense....” ’ [Citations.]” (Id. at pp. 535–536.)
In Goldstein, the defendant had been charged with inducing a minor to use marijuana in violation of Health and Safety Code section 11361. (Goldstein, supra, 130 Cal.App.3d 1024, 1036.) The defendant claimed “ ‘The trial court erred by refusing [his] requested jury instruction pertaining to the defense of reasonable belief that the victim-minors were adults.’ ” (Id. at p. 1035.) Citing Hernandez, the appellate court determined that the trial court erred by refusing to instruct, as requested, that a reasonable belief that the alleged victim was 18 years of age or older was a defense. (Goldstein, supra, at pp. 1036–1037.) The appellate court found it significant that it was “not a criminal offense to so ‘solicit, induce, encourage, and intimidate’ adult persons.” (Id. at p. 1036.)
In Lopez, supra, 271 Cal.App.2d 754, the defendant was charged with offering to furnish a minor (who was an informant) with marijuana. (Health & Saf. Code, former § 11532.) The defendant contended the jury should have been instructed on his mistaken belief that the informant was older than 21. The court rejected that claim because it was (at that time) a felony to offer or furnish marijuana to anyone, regardless of age. (Lopez, supra, at pp. 760–761.) The court noted that because furnishing marijuana is a crime notwithstanding the age of the offeree, the age of the victim only related to the gravity of the offense, and was not a complete defense. (Ibid.)
The same reasoning was applied in Williams where the reviewing court held that ignorance of the age of the offeree did not give rise to a mistake-of-fact defense to the crime of sale of cocaine to a minor. (Health & Saf. Code, § 11353.) The appellate court observed that the “specific intent for the crime of selling cocaine to a minor is the intent to sell cocaine, not the intent to sell it to a minor.” (Williams, supra, 233 Cal.App.3d 407, 411.) The court concluded that ignorance of the age of the offeree neither disproved criminal intent nor negated an evil design on the part of the offeror, so it did not give rise to a mistake-of-fact defense. (Ibid.) The Williams court pointed out “it is criminal to sell narcotics to persons of any age.” (Id. at p. 412.) The court indicated that, since defendant’s conduct would not have been entirely innocent even if defendant’s mistaken view of the facts had been correct, the defense was not available. (Id. at pp. 411–412.) Analogizing to People v. Olsen (1984) 36 Cal.3d 638, which held that a reasonable mistake of fact regarding the victim’s age is not a defense to a charge under Penal Code section 288, subdivision (a), because of the public policy protecting children under the age of 14 from lewd or lascivious conduct, the Williams court recognized the public interest in preventing the sale of narcotics to minors. (Williams, supra, at p. 412.) It paraphrased language in Olsen: “[A] narcotics dealer who sells cocaine to a minor, even with a good faith and reasonable belief that the offeree is over 18, ‘does so at his or her peril.’ [Citation.]” (Williams, supra, at p. 412.)
Defendant argues that Lopez no longer applies because the Health and Safety Code has been changed to reduce the crime of furnishing marijuana to an adult from a felony to a misdemeanor. Under Health and Safety Code section 11360, subdivision (b), the giving away of “not more than 28.5 grams of marijuana, other than concentrated cannabis” is a misdemeanor and is conduct punishable by only “a fine of not more than one hundred dollars ($ 100).” While the crime of offering to furnish marijuana to an adult is no longer a felony, it is still a crime. Thus, defendant is not in the same position as one who would be innocent of any crime had the facts been as he believed them. Because defendant’s claimed mistake of fact, if true, would not have disproved any criminal intent and made his conduct lawful, the court did not err by not instructing regarding a defense based upon mistaken belief as to Sarah’s age.
Because a mistaken belief as to age of the victim is not a defense to the charge at issue, we also disagree with defendant’s contention that his Sixth Amendment right to examine an adverse witness was violated by the trial court’s decision to exclude evidence as to how Sarah represented her age on her MySpace page.
III. Sufficiency of Evidence as to Possession of the Shotgun
Defendant claims the evidence presented at trial was insufficient to demonstrate that he had possession or control of the shotgun found at Tara’s house in Clearlake.
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.” (§ 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.)
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 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. (Williams, supra, 170 Cal.App.4th 587, 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.)
Defendant relies on People v. Mijares (1971) 6 Cal.3d 415 for the proposition that he did not have possession of the shotgun. That case is inapposite. In Mijares, the Supreme Court held that, under limited circumstances, momentary or transitory possession of an unlawful narcotic for the sole purpose of disposing of it can constitute a defense to a charge of criminal possession of the controlled substance. (Id. at p. 419.) Here, no evidence was presented suggesting that defendant had any intent to dispose of the shotgun. Instead, the finding of possession or control is supported by substantial evidence that the residence was, in fact, defendant’s residence. This evidence includes the fact that when the officers asked defendant where he lived, he directed them to the Clearlake house. He knew where the shotgun was in the house, and his father-in-law testified that he had seen defendant holding the firearm on one occasion. Additionally, during the search police found mail addressed to defendant at the residence. That there was evidence his wife and their daughter lived in the home, and even evidence (from defendant’s own testimony) suggesting that he lived primarily in Sonoma County, does not preclude a finding that defendant had possession or control of the firearm at the Clearlake house. Accordingly, the verdict is supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J.Banke, J.