People v. Chavira CA2/8 ( 2014 )

Filed 7/9/14 P. v. Chavira CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B247069
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA097173)
v.
CARLOS CHAVIRA,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los Angeles County.
Bruce F. Marrs, Judge. Affirmed in part, reversed in part and remanded with directions.
Kimberly Howland Meyer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Carlos Chavira appeals his conviction by jury on two
drug offenses and two offenses related to the possession of a “flash bang” device.
Defendant contends evidentiary error and instructional errors require reversal of counts 1,
2 and 3. Defendant also argues that statutory amendments passed during the pendency of
this appeal warrant reversal of count 4. Respondent concedes defendant’s convictions on
counts 3 and 4 should be reversed, but argues the balance of the judgment of conviction
is properly affirmed. We conclude instructional error requires reversal of count 3, and
that statutory amendments warrant reversal of count 4. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2012, deputies with the Los Angeles County Sheriff’s Department were
conducting surveillance of defendant’s home in La Puente before executing a search
warrant for the home. While the deputies were observing the home, defendant came
outside and got into a Lincoln Navigator and drove off. One of the deputies followed
defendant and pulled him over a short distance away. Deputy Michael Gonzalez advised
defendant of the circumstances surrounding the warrant, and read him his Miranda1
rights. Defendant agreed to speak with Deputy Gonzalez.
When asked whether he had any contraband at his home, defendant told the
deputies there were small quantities of cocaine and methamphetamine in a safe in the
dresser of his bedroom, a diversionary device (also known as a “flash bang”) in the top
dresser drawer, a handgun in a separate safe in the bedroom, and a shotgun, rifle,
ammunition and several expended AT4 casings in a large safe in a shed in the backyard.
Defendant gave the deputies the combination to access one safe and explained where to
find the keys for the others. During the search of defendant’s home pursuant to the
warrant, those items were located as defendant had described, plus some additional
ammunition, numerous plastic baggies (some containing narcotics residue), and four
digital scales.
1 Miranda v. Arizona (1966) 384 U.S. 436.
2
Defendant’s Lincoln Navigator was also searched and a baggie containing
cocaine, in excess of three grams, was discovered hidden in a roof vent of the vehicle.
The cocaine located in the vehicle had an approximate “street value” of $200 to $400.
Defendant was charged by information with possession for sale of cocaine (Health
& Saf. Code, § 11351; count 1), possession of a destructive device (Pen. Code, § 18710,
subd. (a); count 2), possession of an explosive (Health & Saf. Code, § 12305; count 3),
and transportation of cocaine (Health & Saf. Code, § 11352, subd. (a); count 4).
Defendant pled not guilty.
At trial, testimony was received as to the nature of the “flash bang” device found
in defendant’s possession. Detective Robert Harris, assigned to the arson and explosives
detail of the Los Angeles County Sheriff’s Department, testified he collected the flash
bang from defendant’s home and detonated it at a sheriff’s department disposal site.
A videotape of the detonation was played for the jury.
Detective Harris stated a flash bang device can be dangerous, and “produces a
huge explosion when it detonates and a bright flash of light.” He explained that if held in
the hand too long after pulling the pin to activate the device, it could cause damage to the
hand, including loss of fingers, and could damage one’s hearing. On cross-examination,
Detective Harris conceded a flash bang is considered a nonlethal, nonshrapnel producing
device.
Kent Crawley, an explosive ordinance disposal officer with the Marine Corps Air
Station at Miramar, also testified. He described a flash bang device as a “diversion
charge” that is used for tactical purposes. It detonates, emitting heat and gases and
producing light and sound, but is not intended to cause injuries if used properly. Like
Detective Harris, Mr. Crawley explained that if held too long after activation, a flash
bang could take “fingers off.” Mr. Crawley also explained the AT4 casings found in
defendant’s shed were just the empty or “inert” tubes remaining after the firing of an
AT4, which is a military device.
Using a photograph as an aid for the jury, Mr. Crawley explained the process of
detonation for a flash bang device: “[T]he top section here from the white band up is the
3
fuse itself. And this is the actual body of the grenade. This is like a foam body. The fuse
is made out of plastic. The pin is pulled, grenade is thrown. About 1.4 seconds after it’s
thrown, there’s a charge that actually kicks the fuse off. The reason it does that is to keep
the fuse from becoming frag when the actual grenade explodes. The fuse kicks off.
About 800 milliseconds later, the actual foam body with the explosives detonates. And
that’s what makes the flash and the noise and the light.”
On cross-examination, Mr. Crawley explained that a flash bang device does not
contain the “same explosives” as “a high explosive grenade, [or] fragmentation grenade.
But it has the same fusing type as a high explosive grenade.” He conceded a high
explosive grenade causes more damage.
After the prosecution rested, defense counsel advised that defendant would be
testifying. The prosecution sought a ruling from the court allowing the admission of
defendant’s prior misdemeanor conviction for carrying a loaded firearm (Pen. Code,
§ 12031).2 The court denied the request.
During direct examination, defendant denied being a drug dealer, but admitted he
had previously used drugs, mostly recreationally. He denied any knowledge of the
cocaine found inside the air vent of his Lincoln Navigator. As for the flash bang device,
defendant explained he had served two tours of duty in Iraq from 2005 through 2007, and
shipped home two foot lockers of personal items when he received orders to return home.
He said he had not intended to pack a flash bang, but a couple of weeks before the March
2012 search of his home, defendant discovered he had inadvertently done so when he
looked through one of his foot lockers trying to find a hydration pack to use for a hiking
trip. He called a cousin, still on active duty with the military, to arrange for him to take it
back to his base, but he had not yet had the time to meet with his cousin when the search
2 Penal Code section 12031 was repealed effective January 1, 2012, and reenacted
without substantive change as section 25850. (Stats. 2010, ch. 711, §§ 4, 6.) We will
refer to the statute as section 12031 to be consistent with the parties’ briefs and the
record.
4
occurred. Defendant’s cousin testified and confirmed receiving a call from defendant
around March 4, explaining he had discovered the flash bang and asking if he could turn
it in to his base.
Defendant explained that flash bang devices were used in combat for tactical
reasons, for instance, when under fire from a particular building. The flash bang is
thrown inside to “stun” but not hurt any individuals inside, and to create a diversion.
Before starting his cross-examination, the prosecutor, outside the presence of the
jury, asked the court to reconsider its ruling denying the use of defendant’s prior
misdemeanor conviction as impeachment on the grounds defense counsel had repeatedly
solicited responses from defendant that he was being completely honest with the jury
about not being a drug dealer and his version of events generally. After allowing
argument on the issue, the court granted the prosecutor’s request, finding defendant’s
prior conviction for carrying a loaded firearm did bear on moral turpitude and credibility,
and therefore could be used as impeachment.
During cross-examination defendant admitted he had suffered the misdemeanor
conviction in 2009. He said he legally owned the gun and it was registered in his name.
Defendant also conceded flash bang devices can be dangerous for people who do not
know how to use them.
The jury found defendant not guilty on count 1 (possession for sale of cocaine),
but guilty of the lesser included offense of possession. The jury also found defendant
guilty as charged on counts 2, 3 and 4 (possession of a destructive device, possession of
an explosive, and transportation of cocaine).
At the sentencing hearing, the court denied probation and found mitigating factors
outweighed aggravating factors given the nature of the offenses and the fact defendant
lacked any substantial criminal history. The court deemed count 4 the base count and
imposed the low term of three years in state prison. The court imposed and stayed a two-
year midterm on each of counts 1 and 3. The court imposed a concurrent two-year
midterm on count 2. Defendant was awarded 94 days of custody credits, and was ordered
to pay various fines and fees.
5
This appeal followed. On January 8, 2014, defendant was granted leave to file a
supplemental brief.
DISCUSSION
1. Prejudicial Instructional Error Requires Reversal of Defendant’s Conviction
on Count 3
Defendant contends his convictions on both counts 2 and 3 for possession of a
single flash bang device are against the law and unconstitutional, and further, that the trial
court committed prejudicial instructional error equivalent to directing a guilty verdict
against him. Respondent concedes the two counts were alternate theories of culpability
for possession of a single device, but that reversal of the conviction on count 3 for
instructional error cures any prejudice to defendant. Respondent contends substantial
evidence supports the conviction on count 2 which should be affirmed. We reverse the
conviction on count 3 because the court prejudicially erred in instructing the jury on
count 3, but we affirm the conviction on count 2 for possession of a destructive device
because any potential instructional error on that count was harmless.
Both counts 2 and 3 were based on defendant’s possession of the one flash bang
device found during the search of his home. In count 2, defendant was charged with a
violation of Penal Code section 18710, subdivision (a), which provides, in relevant part:
“Except as provided by this chapter, any person . . . who, within this state, possesses any
destructive device . . . is guilty of a public offense.” The phrase “destructive device” is
defined in section 16460, and includes any of the following weapons: “Any bomb,
grenade, explosive missile, or similar device or any launching device therefor.”3 A flash
3 The full text of Penal Code section 16460 is as follows: “(a) As used in Sections
16510, 16520, and 16780, and in Chapter 1 (commencing with Section 18710) of
Division 5 of Title 2, ‘destructive device’ includes any of the following weapons: [¶]
(1) Any projectile containing any explosive or incendiary material or any other chemical
substance, including, but not limited to, that which is commonly known as tracer or
incendiary ammunition, except tracer ammunition manufactured for use in shotguns.
[¶] (2) Any bomb, grenade, explosive missile, or similar device or any launching device
therefor. [¶] (3) Any weapon of a caliber greater than 0.60 caliber which fires fixed
6
bang device or diversionary device is not expressly enumerated in the definition of
destructive device.
In count 3, defendant was charged with a violation of Health and Safety Code
section 12305, which provides: “Every person not in the lawful possession of an
explosive who knowingly has any explosive in his possession is guilty of a felony.”
Health and Safety Code section 12000 defines the term “explosive,” in relevant part, as
follows: “For the purposes of this part, ‘explosives’ means any substance, or
combination of substances, the primary or common purpose of which is detonation or
rapid combustion, and which is capable of a relatively instantaneous or rapid release of
gas and heat, or any substance, the primary purpose of which, when combined with
others, is to form a substance capable of a relatively instantaneous or rapid release of gas
and heat.” The statute then enumerates an extensive list of substances as qualifying
explosives within the meaning of the statute such as dynamite, nitroglycerine and other
similar substances. A flash bang device or diversionary device is not one of the items
specifically enumerated. Subdivision (f) of section 12000 provides, “[f]or the purposes
ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore)
conforming to the definition of a ‘destructive device’ found in subsection (b) of
Section 479.11 of Title 27 of the Code of Federal Regulations, shotgun ammunition
(single projectile or shot), antique rifle, or an antique cannon. [¶] (4) Any rocket,
rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any
launching device therefor, and any rocket, rocket-propelled projectile, or similar device
containing any explosive or incendiary material or any other chemical substance, other
than the propellant for that device, except those devices as are designed primarily for
emergency or distress signaling purposes. [¶] (5) Any breakable container that contains
a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or
similar device capable of being ignited, other than a device which is commercially
manufactured primarily for the purpose of illumination. [¶] (6) Any sealed device
containing dry ice (CO2) or other chemically reactive substances assembled for the
purpose of causing an explosion by a chemical reaction. [¶] (b) A bullet containing or
carrying an explosive agent is not a destructive device as that term is used in subdivision
(a).”
7
of this part, ‘explosives’ does not include any destructive device, as defined in Section
16460 of the Penal Code.” (Italics added.)4
a. The instructions as to count 3
The court correctly instructed the jury as to the elements of possession of an
explosive in violation of Health and Safety Code section 12305 by using a modified
version of CALJIC No. 12.55. However, as we explain, the instructions defining the
term “explosive,” while tracking in part the statutory definition, were improperly
modified, incomplete and misleading.
The court instructed as follows: “An explosive means any substance, or
combination of substances, the primary or common purpose of which is detonation or
rapid combustion, and which is capable of a relatively instantaneous or rapid release of
gas and heat, or any substance, the primary purpose of which, when combined with
others, is to form a substance capable of a relatively instantaneous or rapid release of gas
and heat.” This portion of the instruction, taken directly from Health and Safety Code
section 12000, was proper. “The language of a statute defining a crime or defense is
generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient
when the defendant fails to request amplification. If the jury would have no difficulty in
understanding the statute without guidance, the court need do no more than instruct in
statutory language.” (People v. Poggi (1988) 45 Cal. 3d 306, 327.)
However, the court modified the instruction by including the following additional
language: “Explosive includes, but is not limited to [a] flashbang device.” Further, the
jury was not given any instruction advising, in accordance with subdivision (f) of Health
and Safety Code section 12000, that an explosive does not include any device qualifying
as a “destructive device” under Penal Code section 16460.
Defendant contends, and respondent concedes, the additional language directing
that a flash bang device is an explosive should not have been given, and that the failure to
4 The definition of “explosive” as set forth in Health and Safety Code section 12000
is also set forth in Penal Code section 16510.
8
instruct with the language of Health and Safety Code section 12000, subdivision (f),
compounded the error. We agree.
“It is settled that, even in the absence of a request, a trial court must instruct on
general principles of law that are commonly or closely and openly connected to the facts
before the court and that are necessary for the jury’s understanding of the case.” (People
v. Montoya (1994) 7 Cal. 4th 1027, 1047, italics added; accord, People v. Cummings
(1993) 4 Cal. 4th 1233, 1311.) “ ‘[I]t is the trial court’s duty to see that the jurors are
adequately informed on the law governing all elements of the case to the extent necessary
to enable them to perform their function.’ [Citation.]” (People v. Miller (1999) 69
Cal. App. 4th 190, 207 (Miller).) Further, “ ‘the trial court has a sua sponte duty to give
explanatory instructions even in the absence of a request when the terms in an instruction
“have a ‘technical meaning peculiar to the law.’ ” [Citations.]’ [Citation.]” (Ibid.;
accord, People v. Failla (1966) 64 Cal. 2d 560, 565, and 5 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Trial, § 707, p. 1088 [“a word of technical or specialized
meaning that is used in the statutory definition of an offense should be defined or
explained, because this usually constitutes an element of the offense”].)
While the word “explosive” may be readily understood in a general sense, it has a
technical meaning specifically defined by criminal statute. A defendant is guilty of being
in violation of Health and Safety Code section 12305 only if he or she is in possession of
an “explosive” within the meaning of the statutory scheme. As such, the term was an
element of the charged offense. Therefore, it was the court’s duty, even if not
specifically requested by defendant, to properly instruct the jury as to the statutory
definition of “explosive” so the jury could decide whether the flash bang device fit the
statutory definition.5 (See Miller, supra, 69 Cal.App.4th at p. 208 [court was required to
5 While the record is not entirely clear, there was some discussion on the record
indicating the court and counsel were attempting to properly define the terms, but no
specific discussion regarding the modification is reflected.
9
instruct jury as to proper definition of phrase “dangerous fireworks” which was defined
by statute and element of offense of unlawful possession].)
Had a flash bang device been specifically identified under Health and Safety Code
section 12000 as an explosive, it would have been proper for the court to give the
modification. (See People v. Dimitrov (1995) 33 Cal. App. 4th 18, 25-26 (Dimitrov)
[because “bomb” was expressly listed as a type of destructive device in Penal Code
section 12301 (predecessor statute to section 16460), it was proper for court to instruct
that a pipe bomb is a destructive device]; see also bench notes to CALCRIM No. 2571
(rev. 2012) (2014 ed.) p. 433 [“If the case involves a specific device listed in Health and
Safety Code section 12000 or Penal Code section 16460, the court may instead give the
bracketed sentence stating that the listed item ‘is an explosive’ or ‘is a destructive
device.’ ”], italics added.)
However, a flash bang device is not one of the enumerated substances or devices
in the statutory definition. The court’s instruction directing the jury that the flash bang
device was an explosive therefore improperly removed an element of the offense from
the jury’s consideration. The error was compounded by the omission of an instruction
explaining that, by statutory definition, an explosive cannot also be a “destructive device”
within the definition of Penal Code section 16460. The modified instruction constituted
error under both the California and United States Constitutions. (People v. Flood (1998)
18 Cal. 4th 470, 482, 492 (Flood).)
In Flood, the defendant was charged with a violation of Vehicle Code
section 2800.3, evading a pursuing peace officer. (18 Cal.4th at pp. 475-476.) The
statutory elements of the offense required the prosecution to prove, among other things,
that the defendant was attempting to elude a vehicle operated by a “peace officer” as
defined in the Penal Code. (Ibid.) The trial court did not give an instruction defining the
term “peace officer” as set forth in the Penal Code, but instead, instructed the jury that the
two police officers involved in the pursuit were in fact peace officers. (Id. at p. 479.)
The Supreme Court explained, “[i]n essence, the trial court directed a finding, or a
‘partial verdict,’ for the prosecution on that particular aspect of the crime. Therefore, it is
10
clear under prior decisions that the peace officer instruction violated defendant’s due
process rights under the United States Constitution.” (Id. at p. 492; see also People v.
Figueroa (1986) 41 Cal. 3d 714, 724 [“The prohibition against directed verdicts ‘includes
perforce situations in which the judge’s instructions fall short of directing a guilty verdict
but which nevertheless have the effect of so doing by eliminating other relevant
considerations if the jury finds one fact to be true.’ ”].)
The question then becomes whether the instructional error was harmless. (Flood,
supra, 18 Cal.4th at pp. 489-490, 502-503 [rejecting argument that instructional error
omitting an element of the offense, or raising an improper presumption or directing a
finding or partial verdict on an element is structural error requiring automatic reversal].)
In Flood, the error was found to be harmless beyond a reasonable doubt because it was
undisputed the evidence had been uncontroverted at trial that the two police officers
involved in the pursuit were employed as peace officers at the time. (Id. at pp. 476-477,
503-504.)
However here, there was disputed evidence in the record as to the nature of the
flash bang device, including the manner in which it detonates, its intended purpose, its
component parts, and whether that evidence more accurately fit, or fit at all, the definition
of a destructive device, or the definition of an explosive. Moreover, the jury was not
instructed that if it found the device fit the definition of a destructive device, by law, it
could not also be an explosive. To the contrary, the jury was directed that a flash bang
qualified as an explosive. And defendant conceded it was in his possession. On such a
record, we cannot say, beyond a reasonable doubt, the improper jury instructions did not
contribute to the verdict. (Flood, supra, 18 Cal.4th at p. 494, citing Chapman v.
California (1967) 386 U.S. 18, 24.) Therefore, defendant’s conviction on count 3 must
be reversed.
b. The instructions as to count 2
The court correctly instructed the jury as to the elements of possession of a
destructive device in violation of Penal Code section 18710 by using a modified version
of CALJIC No. 12.55. The modification defining the phrase “destructive device”
11
included relevant portions of section 16460, the statute that defines the term for purposes
of determining whether section 18710 has been violated. Specifically, the jury was
instructed with definitional language inserted from section 16460 that “[a] destructive
device includes any bomb, grenade, or similar device.” (§ 16460, subd. (a)(2) [“Any
bomb, grenade, explosive missile, or similar device or any launching device therefor”].)
The bench notes to CALCRIM No. 2570, the equivalent of CALJIC No. 12.55,
explain that the statutory definition of “destructive device,” or the relevant portion
thereof, should be inserted into the instruction or given in a separate instruction. “Give
the bracketed definition of ‘destructive device,’ inserting the appropriate definition from
Penal Code section 16460, unless the court has already given the definition in other
instructions. In such cases, the court may give the bracketed sentence stating that the
term is defined elsewhere.” (Bench notes to CALCRIM No. 2570 (rev. 2012) (2014 ed.)
p. 430, italics added; accord, Dimitrov, supra, 33 Cal.App.4th at pp. 25-26.)
The modified instruction correctly instructed the jury as to the relevant portion of
the statutory definition of “destructive device” to guide the jurors’ deliberations. During
deliberations, the jury requested clarification of the definition of “ ‘destructive’ in
relation to the crime” of “ ‘possession of [a] destructive device.’ ” The court provided
the following answer to the jury: “A bomb, a grenade, or a similar devi[c]e is a devi[c]e
carrying an explosive charge, fused to blow up or detonate under certain conditions.”
The court’s answer, approved by both parties, was consistent with the modified
instruction for a destructive device (i.e., a bomb) approved in People v. Morse (1992)
2 Cal. App. 4th 620, 647, footnote 8. (See also People v. Turnage (2012) 55 Cal. 4th 62,
71 [“a ‘ “destructive device” ’ is broadly defined to cover various explosive and
incendiary weapons and materials”].) Substantial evidence supported the court’s
definition of the term “destructive device.” There was extensive testimony from
Detective Harris and Mr. Crawley, the Marine Corps officer, that a flash bang device is
similar to a grenade (albeit causing far less damage than a high-explosive grenade), is
fused to detonate and explode, and upon detonation emits heat and gases producing a
flash of light and sound intended to stun and disorient anyone nearby.
12
Defendant contends the prejudicial instruction on the alternate count 3 prevented
the jury from reaching a proper verdict on count 2. We are not persuaded there was
Guiton6 error or that the instructional error as to count 3 was so pervasive as to infect the
jury’s ability to properly consider the correct instruction as to count 2 and to fairly
consider the evidence. Therefore, the conviction on count 2 is affirmed.
2. Defendant’s Conviction on Count 4 Must Also Be Reversed
Defendant was convicted in count 4 of the transportation of cocaine in violation of
Health and Safety Code section 11352. Effective January 1, 2014, while this appeal was
pending, the Legislature amended section 11352, adding, as pertinent here,
subdivision (c) which provides “[f]or purposes of this section, ‘transports’ means to
transport for sale.” (Stats. 2013, ch. 504, § 1.) In count 1, the jury acquitted defendant of
possession of cocaine for sale, and found him guilty only of possession. In his
supplemental brief, defendant argues, and respondent concedes, that in light of the
amendment of section 11352 clarifying the scope of the conduct criminalized by the
statute, defendant’s conviction on count 4 must be reversed. We agree.
It is well established that “absent a saving clause, a criminal defendant is entitled
to the benefit of a change in the law during the pendency of his appeal.” (People v.
Babylon (1985) 39 Cal. 3d 719, 722, 725 (Babylon) [reversing conviction for violation of
statute amended during pendency of appeal because a defendant is entitled to the benefit
of an amended statute that “mitigates the punishment” or “decriminalizes the conduct
altogether”]; accord, People v. Rossi (1976) 18 Cal. 3d 295.) Our Supreme Court
explained, “the United States Supreme Court has stated that it is ‘ “the universal
common-law rule that when the legislature repeals a criminal statute or otherwise
removes the State’s condemnation from conduct deemed criminal, this action requires the
dismissal of a pending criminal proceeding charging such conduct. The rule applies to
any such proceeding which, at the time of the supervening legislation, has not yet reached
6 People v. Guiton (1993) 4 Cal. 4th 1116.
13
final disposition in the highest court authorized to review it.” ’ [Citations.]” (Babylon, at
pp. 727-728; see also Bell v. Maryland (1964) 378 U.S. 226, 230.)
The jury found defendant did not possess any quantity of cocaine, either in his
home or his vehicle, for sale. No savings clause was included in the amendments to
Health and Safety Code section 11352. (Stats. 2013, ch. 504, § 1.) Therefore,
defendant’s conviction pursuant to section 11352, which now requires proof of
transportation for purposes of sale, can no longer be sustained. (Babylon, supra,
39 Cal.3d at p. 722.) The conviction on count 4 must be reversed and vacated.
3. Defendant Has Not Shown Prejudicial Evidentiary Error
Defendant contends the court committed prejudicial error in admitting, for
purposes of impeachment, evidence he sustained a prior misdemeanor conviction for
carrying a loaded firearm in violation of Penal Code section 12031. Respondent argues
the contention was forfeited by failure to object, and that in any event, it was proper
impeachment as the offense is one of moral turpitude. We find no prejudicial evidentiary
error.
First, we reject respondent’s claim of forfeiture. When the issue was first raised
by the prosecution at the prospect of defendant testifying, the court and counsel plainly
had a conversation on the record about whether the prior conviction should be admitted,
whether it constituted a crime of moral turpitude, whether it was relevant to credibility,
whether it would be too prejudicial, and whether it was improper “prior bad acts”
evidence. The court’s initial ruling was to exclude the conviction, explaining “depending
on what [defendant] testifies, you can always ask to renew it. But at this point in time,
I’m inclined to keep it out.”
After defendant testified but before cross-examination, the prosecutor renewed his
request stating that defendant, on direct, repeatedly told the jury he was being completely
honest with them and telling them the truth. The prosecutor argued he should therefore
be allowed to ask defendant questions bearing on why the jury should not believe him.
Defense counsel argued he was “stick[ing] by” the same arguments made during the prior
discussion of the evidence, and emphasized the conviction had minimal bearing on moral
14
turpitude. The court explained that based on the testimony elicited during direct, the
court believed reversal of its earlier ruling was appropriate and that the conviction should
be admitted because defendant was “not entitled to hide under a false aura of veracity.”
There is no basis, on this record, to find forfeiture of the objection.
A trial court is vested with broad discretion in determining the admissibility of
evidence. (People v. Lewis (2001) 26 Cal. 4th 334, 374-375.) Under People v. Wheeler
(1992) 4 Cal. 4th 284, evidence of past conduct amounting to a misdemeanor that bears on
a witness’s veracity is relevant and admissible for purposes of impeachment, subject to
the trial court’s exercise of discretion under Evidence Code section 352. “A trial court
may only exclude relevant evidence when ‘its probative value is substantially
outweighed’ by the risk of undue prejudice. (Evid. Code, § 352.) ‘ “A trial court’s
exercise of discretion will not be disturbed unless it appears that the resulting injury is
sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words,
discretion is abused only if the court exceeds the bounds of reason, all of the
circumstances being considered. [Citation.]’ [Citation.]” (People v. Chavez (2000)
84 Cal. App. 4th 25, 30.)
Defendant contends the court abused its discretion in admitting the impeachment
evidence pursuant to Evidence Code section 352. More specifically, defendant contends
the court failed to make any assessment of the least adjudicated elements of the offense
of carrying a loaded firearm to determine whether it involves moral turpitude, and
therefore failed to make the proper threshold inquiry as to relevance. (See People v.
Collins (1986) 42 Cal. 3d 378, 390 [whether a conviction for a given offense involves
moral turpitude “is a question of law; its answer depends on the elements of each crime in
the abstract, rather than the underlying facts of the earlier prosecutions”], and People v.
Castro (1985) 38 Cal. 3d 301, 317 [a “prior conviction should only be admissible for
impeachment if the least adjudicated elements of the conviction necessarily involve
moral turpitude”].)
The parties have not cited us to any case specifically holding that a misdemeanor
conviction for carrying a loaded firearm pursuant to Penal Code section 12031 is a crime
15
involving moral turpitude. Our research has not disclosed any. In People v. Robinson
(2005) 37 Cal. 4th 592, the Supreme Court discussed the issue relative to a similar statute
for carrying a concealed firearm. There, the defendant challenged the trial court’s
exclusion of proffered impeachment against two prosecution witnesses consisting of prior
misdemeanor convictions for carrying a concealed handgun. (Robinson, at pp. 624-626.)
Our Supreme Court agreed with the defendant that the misdemeanor convictions
“reflected a crime of moral turpitude and therefore were relevant to the witnesses’
honesty and veracity.” (Id. at p. 626.) But, Robinson upheld the trial court’s exclusion of
the prior convictions, relying on the broad discretion vested in trial courts under Evidence
Code section 352 regarding the admissibility of evidence and the failure by the defendant
to show any abuse of that discretion. (Robinson, at p. 626.)
We need not decide whether a misdemeanor conviction under Penal Code section
12031 for carrying a loaded firearm is a crime of moral turpitude because defendant has
not shown any prejudice arising from the admission of the evidence.
In cross-examining defendant, the prosecutor did not belabor the point, but rather,
asked a question about the prior conviction that defendant answered succinctly,
acknowledging the conviction and stating it involved a firearm registered in his name
which he legally owned. The bulk of the prosecutor’s cross-examination of defendant
thereafter focused on defendant’s drug use, explanations for why he had baggies and
scales in his possession if he was not selling drugs, and why he had not immediately
returned the flash bang device after he found it in his footlocker. On direct, defendant
had already conceded possession of the flash bang device, the guns and the drugs, but
vigorously denied being a drug dealer. The jury found in defendant’s favor on the main
issue in dispute, i.e., possession of illegal drugs for sale. Therefore, to the extent the jury
was influenced at all by the admission of defendant’s prior misdemeanor conviction,
there is no evidence it caused any prejudice to defendant as the jury found in favor of
defendant on that issue. There is no evidence the admission caused the jury to unfairly
discredit defendant’s testimony. While errors of this type are normally judged under the
applicable standard of prejudice for state law error pursuant to People v. Watson (1956)
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46 Cal. 2d 818, 836, the record here shows that any error by the court in admitting the
prior conviction was harmless beyond a reasonable doubt. (See People v. Cudjo (1993)
6 Cal. 4th 585, 611-612.)
DISPOSITION
The judgment of conviction is reversed in the following respects: the guilty
verdicts on count 3, possession of an explosive (Health & Saf. Code, § 12305), and on
count 4, transportation of cocaine (§ 11352, subd. (a)), are reversed and vacated. The
judgment of conviction is otherwise affirmed in all other respects. The superior court is
directed to prepare a modified abstract of judgment and transmit same forthwith to the
Department of Corrections and Rehabilitation.
GRIMES, J.
We concur:
BIGELOW, P. J.
FLIER, J.
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