Opinion
F071456
01-13-2017
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO WILLY AQUINO, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF36277)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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Guillermo Willy Aquino was convicted of possessing a billy (former Pen. Code, § 12020, subd. (a)(1)) based on evidence that an officer observed him standing near a truck in which the officer found a small souvenir baseball bat and a metal bar that appeared to the officer to be a jack handle. He argues the evidence was insufficient to support the conviction. We agree.
Subsequent statutory references are to the Penal Code unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
On August 2, 2011, Corporal Paul Speers of the Tuolumne County Sheriff's Department responded around 7:22 p.m. to a report that a maroon Chevrolet pickup truck had parked near two vacant buildings at Yosemite Junction and then proceeded toward Chinese Camp. The license plate number was reported. Speers went out looking for the truck and found it at a gas station in Jamestown. Aquino was standing near the tailgate. Kenneth Morgan, the truck's owner, was filling its gas tank. Seeing the patrol car, Aquino walked to one of the passenger doors. His hands were empty. The front passenger window was open and the front passenger door might have been open, but Speers could not see what Aquino was doing near it, if anything. Speers was, however, allowed to testify (without objection) that Aquino's action caught his attention because "[i]t is very common for people to, when they're up to no good, to walk away as soon as they see us, try to walk out of sight, which he did, and then hide something or grab something. Happens all the time." Aquino was out of Speers's sight for about 30 seconds. Speers ordered Morgan to put his hands on the truck and told Aquino to sit on the bumper of the patrol car. Cynthia Crook, who was later connected with the truck, came out of the store.
Speers obtained Morgan's consent and searched the truck. A handful of jewelry, about 20 or 30 pieces, was in a mound on the front passenger floorboard. A bag containing silver eating utensils was somewhere in the truck. Under the front passenger seat were a small wooden baseball bat and a metal bar with a black grip. Speers thought the metal bar was a jack handle. In their closing arguments, both counsel described the bat as a souvenir bat. The ends of the bat and bar protruded from under the seat. Also in the truck were a crowbar, wire cutters, and a toolbox containing wrenches and drill bits. A dog was in the back seat.
The district attorney filed a complaint, later deemed an information, against Aquino, Morgan, and Crook. Count 1 charged all defendants with felony violation of former section 12020, subdivision (a)(1), possession of a billy. Count 2 alleged misdemeanor prowling (§ 647, subd. (h)) against all defendants, and count 3 alleged misdemeanor possession of burglary tools (§ 466) against all defendants. Count 4 charged Aquino alone with misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The information further alleged that Aquino had the following prior convictions: in 1994, possession of a controlled substance for sale (Health & Saf. Code, § 11378); in 1999, escape or attempted escape without force or violence (§ 4532, subd. (b)); and also in 1999, possession of a firearm by a felon or drug addict (former § 12021, subd. (a)).
The current provision criminalizing possession of a billy is section 22210.
Counts 2 and 3 against Aquino were dismissed before trial and he pleaded guilty to count 4. Aquino's trial thus proceeded on count 1 alone.
At trial, Deputy Speers was the only witness who testified. In addition to hearing Speers's testimony to the above facts, the jury also was told by the court that the court had taken judicial notice of records indicating that, in 2011, after his arrest on the current charges, Aquino failed to appear in court. A bench warrant was issued and Aquino was finally arrested on the warrant in 2014.
After the jury deliberated for an hour, the foreperson gave the court a note saying the jury could not reach a verdict. After a discussion with the court, the jurors agreed to return the following day and continue deliberating. The following day the jury found Aquino guilty on count 1.
The court imposed the upper term of three years for count 1 and a concurrent term of one year for count 4. At the same time, the court imposed a consecutive eight-month sentence for the failure to appear, to which Aquino had pleaded guilty in a separate proceeding. The court ordered Aquino to serve two years in the county jail followed by one year eight months of supervised release. For time served, Aquino received credit of 397 days.
DISCUSSION
Aquino maintains that insufficient evidence was presented at trial to prove the offense of possessing a billy. When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible, and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
The statute does not define a billy and it has been described in case law as including objects with innocent uses, such as baseball bats and table legs. (People v. Davis (2013) 214 Cal.App.4th 1322, 1327-1328.) Since a billy thus is effectively anything that can conveniently be used as a club, practicality demands that the breadth of the offense be reduced by requiring proof not just of knowing possession of the object, but also of possession of the object by the defendant for unlawful use. The prosecution is required to prove "'the object was possessed as a weapon.'" (Id. at p. 1327.) Further, "'[t]he only way to meet that burden is by evidence "indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose."'" (Ibid.) This is proved "only 'when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object'" to do wrong. (People v. King (2006) 38 Cal.4th 617, 624 [quoting People v. Grubb (1965) 63 Cal.2d 614, 620-621] (King).)
Accordingly, the jury in this case was instructed with CALCRIM No. 2500, which included not only the requirement of knowing possession that is involved in any charge of possessing contraband, but also the requirement of possessing the object as a weapon:
"Defendant is charged in Count 1 with unlawfully possessing a weapon, specifically a billy, in violation of Penal Code section 12020 subdivision A.
"To prove that the defendant is guilty of this crime, the People must prove that:
"One: The defendant possessed a billy;
"And Two: The defendant knew that he possessed the billy;
"And Three: The defendant possessed the object as a weapon.
"When deciding whether the defendant possessed the object as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was possessed, and any other evidence that indicates whether or not the object would be used for a dangerous, rather than harmless, purpose.
"The People do not have to prove that the defendant intended to use the object as a weapon.
"The People do not have to prove that the object was concealable, or carried by the defendant, on his person, or visible.
"Two or more persons may possess something at the same time.
"A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person."
The no-intent portion of this instruction comes from People v. Rubalcava (2000) 23 Cal.4th 322, 331, which was about possession of a concealed dirk or dagger. As applied to a billy, this part of CALCRIM No. 2500 is arguably in tension with King, supra, 38 Cal.4th at page 624, which, as indicated above, quoted with approval our high court's own previous holding in Grubb that in the case of a billy there must be proof the defendant "would use" the object for a dangerous purpose. In King (which is about a short-barreled rifle), the court discussed both Grubb and Rubalcava without acknowledging any such tension. The parties do not discuss this point in this case and we need not address it further. Whatever the proper formula may be for expressing the requirement that a defendant possessed a billy as a weapon, it is undisputed that this requirement exists and is applicable in this case. --------
In this case, the failure of proof affected several of the required elements. The totality of the evidence presented against Aquino is that he was standing near a truck in which he had possibly arrived at a gas station, which someone had described to the police as having been parked near vacant buildings, and in which there was a number of objects, including the bat and bar, the presence of which was unexplained. The evidence did not show that Aquino had knowledge of or control over the bat and bar, so it did not prove he possessed them at all. If it had shown he possessed them, it would not have shown he possessed them as weapons or that he would use them for an unlawful purpose.
The People's argument on appeal is that, because the officer saw Aquino move toward a passenger door that might have been open and could not see what he was doing, the jury could infer that Aquino slipped the items under the front passenger seat to conceal them, and on this basis could conclude he had knowledge of and control over them and also that his possession of them was as weapons. The People aver that whoever called the police must have thought the people in the truck were suspicious; that the jewelry and silverware seemed like they could have been stolen; and that the tools seemed like they could have been used for stealing something. But this suggests a chain of speculation, not substantial evidence supporting proof beyond a reasonable doubt. Before this jury, Aquino was not even accused of doing, let alone shown to have done, the presumed underlying crimes the People rely on to support their proposed sequence of inferences. It may be understandable that a jury confronted with such a collection of suspicious circumstances was unable to resist a prosecutor's urging to convict a defendant of something, but the evidence to establish the necessary elements of the charged offense simply was not there.
Aquino makes a second argument: The evidence of his prior failure to appear, presented through the court's taking of judicial notice, was inadmissible evidence of a prior bad act that improperly prejudiced the jury. We need not address this argument.
DISPOSITION
The conviction on count 1 is reversed and further prosecution on this count is barred. The case is remanded to the trial court for resentencing in accordance with this opinion.
/s/_________
SMITH, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
GOMES, J.