Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA084556, Tomson T. Ong, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Michael Thomas Balint of two counts of second degree robbery and one count of possession of a firearm by a felon. The jury also found true the allegation that Balint used a firearm in connection with the robberies. The court found true the allegations that Balint had suffered five prior felony convictions, four of which were serious or violent. Balint was sentenced to 136 years to life. He appeals, arguing that the court erred in giving a necessity instruction and in answering a jury question about the jury instructions, and that the trial court should have stayed Balint’s sentence for possession of a firearm by a felon. We agree that the sentence for possession of a firearm by a felon should have been stayed.
BACKGROUND
An information filed on March 15, 2010 charged Balint with second degree robbery of Milan Kothari (count 1) and Scott McCaslin (count 2), both in violation of Penal Code section 211, and with being a felon in possession of a firearm (count 3), in violation of section 12021, subdivision (a)(1). The information also alleged that Balint personally used a firearm in the robberies within the meaning of section 12022.53, subdivision (b). Further, the information alleged that as to counts 1 and 2, Balint had four prior convictions pursuant to section 667, subdivision (a)(1), and as to all three counts, Balint had four prior convictions of serious felonies pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), as well as five prior prison terms pursuant to section 667.5, subdivision (b).
All statutory references are to the Penal Code.
Balint pleaded not guilty and denied all the special allegations. The court granted Balint’s motion to bifurcate trial on his prior conviction allegations, and Balint waived his right to trial on the priors. After trial, a jury found Balint guilty on all counts and found the special allegations to be true. The court found true the prior convictions alleged in the information and denied Balint’s motion for new trial.
The court sentenced Balint to 136 years to life: 56 years to life on count 1 (25 years to life, plus 31 years for the special allegations); 55 years on count 2 (25 years to life plus 30 years for the special allegations); and 25 years to life on count 3, all to run consecutively. Balint received 159 days of conduct credit (139 actual days and 20 days of good time/work time), and was ordered to pay court fees and assessments, as well as restitution and parole fines.
Balint filed this timely appeal.
FACTS
At trial, Milan Kothari testified that on January 18, 2010, he was working as a clerk at Happy Liquor on Magnolia Avenue in Long Beach. At 8:30 p.m., Kothari was cleaning outside near the door when he saw Balint, dressed in black, walk in alone and go to the beer cooler. No one else was in the store. Kothari went back inside to the cash register, and Balint approached the register with a can of beer he had grabbed from the cooler. When Kothari began to ring up the beer, Balint pulled out a gun (about a foot long, “old style, ” with a long neck) from his pants under his jacket and pointed it at Kothari, saying, “‘Don’t move, don’t touch anything, and give me the money’” in a serious and threatening tone. Kothari was afraid and raised his hands, saying, “‘I’m not moving or touching anything.’” Balint repeated, “‘Give me the money.’” Kothari said, “‘I’ve got to open the register, if you want the money, ’” opened the register, and gave Balint the cash drawer, which contained $300-$400. There was money under the drawer and Balint asked for that money too. Kothari put the money on the counter, and Balint said, “‘Don’t move. Don’t do anything, ’” took the money, and left the store. Kothari did not see anyone waiting for Balint. On January 22, 2010, Kothari identified Balint as the armed robber in a six-pack photographic lineup, and Kothari identified Balint in court. The prosecutor played a security videotape of the robbery. On cross-examination, Kothari said Balint did not appear to be nervous or stressed.
Scott McCaslin testified that on the same night, January 18, 2010, he was working as a clerk/cashier at Granada Liquor in Long Beach. At about 9:50 p.m., McCaslin was behind the counter when he saw Balint walk in the door alone, wearing “a longish” hooded coat and dark clothes. McCaslin was alone in the store and saw no one outside. Balint walked directly to the register. McCaslin asked him what he wanted, and Balint pulled out an old, worn sawed-off shotgun from under his coat, held it out toward McCaslin, and rested it on the countertop close to the register. Balint asked McCaslin to give him all the money in an agitated, angry tone. McCaslin immediately opened the register and began to pull out money. He was afraid because he believed he was going to be shot. McCaslin put the large bills on the countertop, and without being told, bent down to get a cash box below the register. Balint yelled, “Stop, stop right there, get up slowly” at McCaslin and put the gun very close to McCaslin’s head. McCaslin slowly stood back up, with the gun about an inch from his face, pointed at his left temple. McCaslin gave Balint about $400 from the register, and Balint left. McCaslin saw nobody outside. About a week later, McCaslin identified Balint in a six-pack photographic lineup. McCaslin also identified Balint in court. The prosecutor played a security videotape of the robbery.
On cross-examination, McCaslin stated all he could see from behind the counter was the area right outside the front door; he could not see the parking lot.
Balint testified in his own defense. He admitted that he committed the two liquor store robberies on January 18, 2010, with a gun that came from members of the Eastside Longos gang with whom he met earlier in the day. Since July 2009, Balint had worked as a paid informant for the Long Beach Police Department, supervised by Detective Timothy Luke Everts. On the day of the robberies he met with Eastside Longos members at an empty apartment, where he saw people doing drugs and two guns. Balint needed to get some information for Detective Everts so he could get some money to pay a tax he owed on behalf of a Mexican mafia member Balint met in state prison. The gang members were friendly at first, but after they took drugs, they began to tell Balint that the person he worked for owed them money. They threatened Balint, beat him, threatened his life and his family (his mother, his four-year-old daughter, and his girlfriend) and told Balint he would have to rob as many people as possible to get the money Balint’s boss owed them. They would let Balint go home if someone vouched that he would get them the money. Balint called his girlfriend, Annette Hernandez, and she arrived at the apartment. The gang members separated them and took Hernandez into another room. Balint did not see them threaten Hernandez. The gang members threatened Balint and put a shotgun in his mouth. The shotgun was the gun in the video, and it was not Balint’s gun.
Balint admitted that he had been convicted of four felonies.
Two gang members, “Dopey” and his father, forced Balint out of the apartment and into a car. Dopey was armed with a handgun and had the shotgun in his lap. They drove to the liquor stores and forced Balint to commit the robberies, using the shotgun. At the time of the robberies, Balint thought the shotgun worked, but Dopey emptied the slugs out before the first robbery, and Balint discovered later that the gun didn’t work.
Dopey and his father would park the car near to the liquor stores (on a side street a quarter-block away at Happy Liquor, and in an alley about 22 feet away from Granada Liquor) and wait for Balint to return. He did not plan to return the money to the liquor stores, but did plan to report it to the authorities. At Happy Liquor, Dopey got out of the car with Balint and handed him the shotgun, telling him to conceal the gun while on the street, to go in there and make it quick, and not to go out the back door, or his family would be hurt. After each robbery, Balint immediately handed the shotgun back to Dopey and his father.
During the second robbery, Balint told McCaslin to look at his face, and said that he was being forced to commit the robbery.
After each robbery, Dopey and his father drove Balint back to the apartment. Hernandez was still back at the apartment, and he was worried about her welfare. When they returned to the apartment after the second robbery, Balint was beaten again, and then they let him go home, telling him to come back the next day to commit some more robberies for them. Balint had no doubt that if he had not committed the robberies, Dopey and his father would kill him and harm his family and his girlfriend.
Balint called Detective Everts the day after the robbery, telling him it was an emergency and he needed to meet with him. Detective Everts put him off, and Balint called again and said there was a shotgun involved and repeated that he needed to see him as soon as possible. When Detective Everts met Balint on January 21, 2010, he immediately arrested Balint. After Detective Everts showed Balint a photograph of himself in a liquor store with the shotgun, he told Detective Everts about the robberies. Later, Balint identified the people who kidnapped him in a photograph.
McCaslin testified that Balint told him to look at his face, and that Balint said, “‘They are making me do this.’” Balint claimed he told Kothari, “look at me, they’re forcing me to do this, ” but Kothari testified that Balint did not tell him he was being forced to commit the robbery.
Hernandez testified that on January 18, 2010 she met Balint at the apartment and “he looked really scared. I never seen him like that before, ” and he still looked scared when he left. Hernandez stayed at the apartment for a few hours talking to a girl she knew, and she saw Balint leave, come back, leave, come back again, and leave when they told him to go. She took a taxi home after everyone left. Someone mentioned something about having a hostage that night, but Hernandez was not forced to stay there. She was not afraid for her safety because an Eastside Longos member was the father of her child.
Detective Everts testified that Balint worked for him as a confidential informant, and was paid for each piece of information that resulted in an arrest or finding evidence. Balint was not working for Detective Everts on January 18, 2010. Balint called him on January 19, 2010 and told him that he had met the Eastside Longos members at the apartment, and that they were high on heroin, disrespected him, and stole his bike. Balint called Detective Everts again that day and on January 20, 2010 without mentioning the liquor store robberies.
On January 21, 2010, Detective Everts arrived at work and found in his email an attachment of a surveillance video showing Balint, dressed in black, holding a shotgun on a liquor store clerk. After Detective Everts learned that another robbery had taken place, he telephoned Balint, arranged to meet with him, arrested Balint when he arrived at the meeting place, and took Balint to the station. When he asked Balint what had happened at the apartment, Balint told Detective Everts that he had met Dopey a month earlier and tried to buy a handgun from him. Dopey refused, but called Balint on January 18, 2010 and asked him to come to the apartment to hang out. When Balint arrived, he saw that Dopey and a woman were high on heroin. They confronted Balint and claimed he was a snitch, and he owed them a debt. Dopey took out a sawed-off shotgun and put the shotgun in Balint’s mouth. Balint was beaten up, and Dopey told him to call someone he trusted, so Balint called Hernandez. When she arrived, Balint was forced to change his clothes, and Dopey and his father drove him around the city. Balint thought that Dopey got out of the car and committed a robbery, and he saw Dopey hit a young black male with the shotgun.
Detective Everts showed Balint a still photograph from the surveillance video and said he knew what had happened that night. After staring at the photograph, Balint told Detective Everts that he was involved in the robberies and had used a shotgun. Balint was upset and crying.
Long Beach Police Officer Jesus Fragoso testified that after Balint’s arrest on January 21, 2010, he interviewed Hernandez. Hernandez said she was not forced to stay at the apartment on January 18, 2010 and left on her own without anyone trying to stop her.
ANALYSIS
I. The giving of a jury instruction on necessity and the court’s answer to a jury question did not constitute prejudicial error.
Balint argues that the trial court’s giving of an instruction on the defense of necessity, and the court’s answer to a jury question about that instruction and a duress instruction, constituted prejudicial error. We disagree.
A. Jury instruction on the necessity defense
The defense did not oppose (and in fact agreed to) the giving of an instruction on the necessity defense. After both sides rested and outside the presence of the jury, the trial court noted that the defense had requested a duress instruction and the prosecution had requested an instruction on necessity, “which is the alternative.” The court asked counsel, “You would agree with me, would you not, there is no substantial evidence for any lesser [included offense] since the defendant admitted to the robberies and to the gun, it’s just he has the defense of necessity or duress.” Defense counsel answered, “Correct, ” and the prosecutor agreed. The court then gave the jury instructions on the defenses of duress and necessity. As defense counsel agreed to the giving of the instruction on necessity and did not object when asked, this claim of error is forfeited. (People v. Bolin (1998) 18 Cal.4th 297, 326.) Nevertheless, “‘“an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. [Citation.] The cases equate ‘substantial rights’ with reversible error, i.e., did the error result in a miscarriage of justice? [Citations.]” [Citation.]’” (People v. Christopher (2006) 137 Cal.App.4th 418, 426–427.) We therefore address whether the giving of the necessity instruction resulted in a miscarriage of justice.
The duress instruction stated: “A person is not guilty of a crime when he engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances: [¶] 1. Where the threats and menaces are such that they would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged, and [¶] 2. If this person then actually believed that his life was so endangered. [¶] This rule does not apply to threats, menaces, and fear of future danger to his life.”
A trial court must instruct on legal “principles closely and openly connected with the facts of the case, and which are necessary for the jury’s understanding of the case [citations], ” including “an affirmative defense... even in the absence of a request, ‘if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 468–469.) The duty to instruct arises only if the defense is supported by substantial evidence. (People v. Garvin (2003) 110 Cal.App.4th 484, 488.) In deciding whether the evidence supporting an instruction is substantial, the court determines whether “‘“there is any evidence deserving of any consideration whatever, ”’” and does not weigh the credibility of witnesses. (People v. Flannel (1979) 25 Cal.3d 668, 684, overruled on another ground in In re Christian S. (1994) 7 Cal.4th 768, 777.)
“‘To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that [he] violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he] did not substantially contribute to the emergency. [Citations.]’ [Citation.]” (People v. Galambos (2002) 104 Cal.App.4th 1147, 1160.) The defendant must also show that he “immediately reported to the proper authorities when he attained a position of safety from the immediate threat from which he needed to escape.” (People v. Farley (1996) 45 Cal.App.4th 1697, 1712.) Balint states “no evidence was presented to support such a defense, ” without explaining how the evidence was inconsistent with the defense.
At trial, however, Balint testified that the gang members threatened his life and the lives of his family and his girlfriend (a significant and imminent evil); that they kidnapped him and forced him to commit the robberies using the shotgun (he had no reasonable legal alternative without creating the greater danger of harm to the lives of others); that he was concerned for the welfare of Hernandez back at the apartment (it was reasonable to fear for her safety); and that he did not participate through any fault of his own (he did not substantially contribute). Balint also testified that he called Detective Everts the next day and said it was an emergency involving a shotgun (he reported to the proper authorities after attaining a position of safety). Substantial evidence supported the giving of a necessity instruction.
To establish the defense of duress “[t]he defendant must show that the act was done under such threats or menaces that he had (1) an actual belief his life was threatened and (2) reasonable cause for such belief. [Citation.]” (People v. Heath (1989) 207 Cal.App.3d 892, 900.) The danger to the defendant’s life must be immediate and imminent, giving him no time to formulate a reasonable course of conduct or criminal intent, thus negating the element of intent to commit the crime. (Ibid.) This is different from a necessity defense, which contemplates a threat in the immediate future, leaving the defendant “the time, however limited, to consider alternative courses of conduct” and therefore not negating intent. (Id. at p. 901.) While the defenses are different, they are related, so that the evidence at trial, including a defendant’s own testimony, may justify giving both instructions. (Id. at p. 902.)
Substantial evidence supported the giving of both instructions. Balint testified that the gang members threatened his life (sticking a shotgun in his mouth) if he did not commit the robberies, and, armed with a handgun, drove him to the liquor stores, forcing him to commit the robberies using the shotgun. This testimony is consistent with duress, as described in the instruction. The robbery victims, however, both testified that there was no one else in the store, and they saw no one outside, during the robberies. This testimony was substantial evidence supporting a conclusion that Balint did not reasonably believe his life was in imminent danger at the time of the robberies as required for duress, because the threatened harm was in the immediate future, permitting him at least a brief period during which he could escape or call police. The jury could therefore also have concluded that the evidence supported a necessity defense, as Balint had time, however limited, while in the liquor stores and out of the presence of the gang members, to consider alternative courses of conduct. (People v. Condley (1977) 69 Cal.App.3d 999, 1009–1013.)
In People v. Heath, supra, 207 Cal.App.3d at p. 902, the court concluded “[a]ppellant’s own testimony presents sufficient justification to warrant instructions on both the duress and necessity defenses.” The defendant testified that a loaded gun was held to him in a vehicle (an imminent threat justifying a duress instruction) and that he then left the vehicle and walked to a residence where he committed a burglary. “Once appellant was outside the immediate presence of [the man who held the loaded gun to him in the vehicle], the threat became one in the immediate future allowing appellant an opportunity, albeit brief, to balance his options, which is the very essence of the necessity defense.” (Ibid.) Similarly, in this case, if the jury did not believe that Balint actually believed his life was in imminent danger at the time of the robberies, or if the jury did not believe that his belief was reasonable, the giving of the necessity instruction provided an additional rationale for the jury to acquit Balint. “Appellant actually benefitted from both instructions because his own testimony negated the imminent harm element consistent with the duress defense.” (Ibid.) The giving of both instructions did not result in a miscarriage of justice.
The jury was instructed with CALJIC No. 4.43 concerning necessity and CALJIC No. 4.40 concerning duress. CALJIC No. 4.43 informs the jury that the defendant has the burden of proving the necessity defense by a preponderance of the evidence. CALJIC No. 4.40, however, says nothing about the burden of proof for duress, and the burden is different—the defendant is “required merely to raise a reasonable doubt as to the underlying facts.” (People v. Mower (2002) 28 Cal.4th 457, 479 & fn. 7; see also People v. Graham (1976) 57 Cal.App.3d 238, 240.)
B. Trial court’s response to jury question
Jury deliberations began at 2:15 p.m. At 2:30 p.m., the jury submitted the following question: “In order to apply the defense of diress [sic] or necessity, [i]s it necessary to meet ALL the requirements or elements listed in the law. ([F]or necessity and diress [sic] defense.)” The court answered, “Yes.” Balint argues that the trial court’s answer incorrectly instructed the jury that they must find all the elements of both defenses before finding that either one applied.
The jury announced that it had reached a verdict 40 minutes later, at 3:10 p.m.
Neither the reporter’s transcript nor the minute order reflects any discussion of the jury’s question, and so we cannot determine whether defense counsel objected to the trial court’s response to the jury’s question regarding the instructions. We presume, however, that the court performed its duty under section 1138. (Evid. Code, § 664; People v. Sullivan (2007) 151 Cal.App.4th 524, 549 [“‘Court and counsel are presumed to have done their duty in the absence of proof to the contrary.’ [Citation.]”] Balint does not claim that he objected to the court’s answer to the jury’s question, or that he was deprived of an opportunity to do so. A failure to object to the trial court’s response to a jury’s inquiry “should bar defendant from contending on appeal that a more elaborate response should have been made. If defendant desired such a response, he should have proposed it. [Citations.]” (People v. Medina (1990) 51 Cal.3d 870, 902; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.)
“After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (§ 1138.)
Even assuming that Balint had objected, however, we conclude the trial court’s response was a correct statement of law that could not have misled the jury and is not grounds for reversal. The jury’s question was whether “to apply the defense of duress or necessity” (italics added), it was necessary for Balint to meet all the listed elements of either defense, and the simple answer “yes” was correct. The jury’s use of “and” in the succeeding parenthetical does not mean that the jury conflated the two defenses. No more elaborate response was necessary. “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The jury received two separate instructions on duress (listing two elements) and necessity (listing seven elements). At the outset of deliberations, the trial court instructed the jury to consider the instructions as a whole and each in light of all the others. We presume the jury understood and applied this principle. (People v. Pinholster (1992) 1 Cal.4th 865, 919, overruled on another point in People v. Williams (2010) 49 Cal.4th 405, 459.) There is no reasonable likelihood that the jury conflated the two separate instructions into one, so as to require that Balint prove the elements of both affirmative defenses to establish either one, as we also presume that jurors are intelligent people capable of understanding and correlating jury instructions and applying them to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.) The court did not err in answering the jury’s question with a simple “yes.”
II. The trial court abused its discretion when it did not stay count 3 under section 654.
The prosecution’s sentencing memorandum recommended: “Because the firearm that the defendant was convicted of possessing is the same firearm that the defendant personally used during the commission of the robberies in Counts 1 and 2, the court should stay any term imposed as to Count 3, pursuant to Penal Code § 654.” Nevertheless, the trial court sentenced Balint to 25 years to life on count 3, possession of a firearm by a felon in violation of section 12021, subdivision (a)(1), to run consecutively with the sentences for the robberies (count 1 and count 2). The court explained, “It is the court’s view that the imposition of the sentence in count 3 is not barred by Penal Code section 654. The defendant had the weapon much before any of the robberies, and that, in itself, is the violation of count 3. The fact that he much later used the same weapon for robberies does not excuse him from the crime committed in count 3; it merely makes it more dangerous because the defendant, after possessing the weapon, used it to commit violent crimes.”
Balint asserts that he did not possess the shotgun separately and independently from the use of the shotgun to commit the robberies, so that multiple punishments were improper and his sentence should have been stayed pursuant to section 654. We agree.
Section 654, subdivision (a), provides “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654, subdivision (a) permits multiple convictions, but bars multiple punishments, for a single, indivisible course of criminal conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 18–19.) “Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Id. at p. 19; People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “[I]f the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The question whether the defendant held multiple criminal objectives is one of fact for the trial court, and its finding will be upheld on appeal if there is any substantial evidence to support it. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Section 12021, subdivision (a)(1), which criminalizes possession of a firearm by a felon, “presents a unique circumstance in the minefield of section 654 cases in that this charge involves an important policy consideration.” (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1409.) The statute’s intent was to minimize the danger to public safety posed by access to weapons that can be used in crimes of violence, and “‘[t]he law presumes the danger is greater when the person possessing the concealable firearm has previously been convicted of felony.... [Citation.]’” (Ibid.) When a defendant felon violates section 12021 by possessing a firearm during the commission of an offense, for purposes of section 654 analysis, the question is whether there is substantial evidence that the firearm possession “‘“constitutes a divisible transaction from the offense in which he employs the weapon [and] depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.”’” (People v. Jones, supra, 103 Cal.App.4th at p. 1143; People v. Bradford (1976) 17 Cal.3d 8, 22.)
Section 654 prohibits multiple punishment “where the defendant obtained the prohibited weapon during the [crime] in which he used the weapon.” (People v. Wynn (2010) 184 Cal.App.4th 1210, 1217.) “[I]f the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of a weapon by an ex-felon.” (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1412.) In People v. Bradford, supra, 17 Cal.3d at p. 13, the defendant wrested away an officer’s revolver (after the officer stopped him for speeding) and shot at the officer with the revolver. The California Supreme Court concluded that “where the evidence shows a possession distinctly antecedent and separate from the primary offense, ” punishment for both crimes was proper. (Id. at p. 22.) The defendant’s possession of the officer’s revolver was not antecedent and separate from the use of the revolver to assault the officer, and so under section 654, the sentence for violating section 12021 must be stayed. (Ibid.) In People v. Venegas (1970) 10 Cal.App.3d 814, a waitress testified that she heard a gunshot, turned to see the defendant holding a gun, and heard two more shots. The defendant was shot in the leg. There was no evidence that the defendant had possessed the gun before the assault, and defense evidence suggested that the defendant obtained the gun during a struggle moments earlier at the bar. This showed “a possession only at the time defendant shot [the victim]. Not only was the possession physically simultaneous, but the possession was incident to only one objective, namely to shoot [the victim].” (Id. at pp. 818–819, 821.)
Conversely, “section 654 has been found not to apply when the weapon possession preceded the assault.” (People v. Wynn, supra, 184 Cal.App.4th at p. 1217.) In People v. Ratcliff, the defendant used a gun in two robberies about an hour and a half apart, arriving at the scene of the first robbery with the gun in his possession. The gun was in his possession when he was arrested a half-hour after the second robbery. (223 Cal.App.3d at p. 1413.) “[D]efendant’s possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes. Section 654 therefore does not prohibit separate punishments.” (Ibid.) In People v. Jones, the defendant was a passenger in a car that stopped at the victim’s house, and when he returned, still a passenger, 15 minutes later, he fired several shots at the house as the car slowly drove by. The gun was not recovered. (103 Cal.App.4th at pp. 1141–1142.) The evidence was sufficient to allow the inference that the defendant possessed the firearm before and separate from the other offense of shooting at an inhabited building. (Id. at p. 1147 [“It strains reason to assume that Jones did not have possession for some period of time before firing shots at the... home.”].)
Recently, courts have found section 654 inapplicable when there is some evidence that the defendant possessed the firearm before or after the other crime, or for another reason. Where the defendant was seen leaving a store with an item he had not purchased, a loss prevention officer confronted him outside, and defendant took a “nunchaku” from his pants and swung it around, wounding one employee, it was logical to infer that he possessed the weapon before the assaults when he entered the store, especially as the defendant admitted he carried the weapon because people were afraid of it. (People v. Wynn, supra, 184 Cal.App.4th at pp. 1213, 1218.) Where the defendant kept a loaded firearm under his pillow, his possession of the weapon was not fortuitous, and the court could also infer from the evidence that the possession was not inseparable from the crime of possession of methamphetamine while armed, because he also possessed the firearm for protection. (People v. Vang (2010) 184 Cal.App.4th 912, 917.) Where the defendant was driving around, saw a rival gang member, chased him in his car, and then took two potshots at an intersection, “the jury could readily and reasonably infer that [defendant] already had a gun with him in the car” so that his possession was not fortuitous. (People v. Rosas (2010) 191 Cal.App.4th 107, 111.) Where the defendant stole a firearm, took it to a friend’s house the next day where he hid for four and a half-hours, and police found the firearm in the house’s stove in a later search, substantial evidence supported a conclusion that he had two separate intents—to take the gun (grand theft) and to possess it in violation of section 12022—and also maintained personal possession of the gun after the theft. (People v. Atencio (2010) 190 Cal.App.4th 695, 698–699, 705.
The court in People v. Jones summarized the general rule as “section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (103 Cal.App.4th at p. 1145.) Respondent argues that both liquor store clerks testified that Balint walked into the stores alone and then drew the shotgun, so that Balint arrived in possession of the weapon. This is true as far as it goes. It is not alone enough, however, that the defendant possessed the firearm at the time of the primary crime. That would sweep each case in which a felon used a firearm out of the reach of section 654.
In the cases affirming a refusal to apply section 654, the trial courts could infer from the evidence that the defendant possessed the firearm before or after the crime, and there was no contrary evidence. In two cases, the courts inferred prior possession because the defendant had been driving around before using the firearm while still in the car, and the logical conclusion was that he possessed the firearm before using it in the primary crime. (People v. Jones, supra, 103 Cal.App.4th at p. 1147 (passenger); People v. Rosas, supra, 191 Cal.App.4th at p. 111.) In spite of some similar facts—Balint was a passenger in the car before, between, and after the robberies—the evidence was that Balint was not in possession of the shotgun while in the car. Balint testified that the gang members put the shotgun in his mouth at the vacant apartment; that the shotgun was not Balint’s; that Dopey, armed with a handgun, kept the shotgun on his lap as he and his father drove Balint to the liquor stores; that Dopey, parked a short distance away, handed Balint the shotgun to take into the liquor stores; and that Balint immediately gave the shotgun back to Dopey after each robbery. The evidence was that Balint was handed the gun by another person just before using it in the robberies, and relinquished possession immediately after each robbery. There was no evidence that Balint had the shotgun in his possession at any time before or after the robberies.
We are puzzled by the trial court’s statement that Balint possessed the weapon “much before” the robberies and “much later” used it in the robberies. That statement is without any support in the record. Surely the court could not infer that Balint was in possession of the shotgun when the gang members put it in his mouth. There was no evidence at trial of prior or subsequent possession. While the liquor store clerks both testified that they saw no one outside before, during, or after the robberies, Balint testified that at each liquor store Dopey parked the car a very short distance away, on a side street and in an alley, and handed Balint the shotgun to use in the robberies. Nor was there any evidence that Balint’s possession of the weapon had any objective other than the commission of the robberies at the liquor stores. Balint’s testimony was to the contrary. While the judge could have disbelieved Balint’s account, no affirmative evidence was presented that Balint possessed the gun, either actually or constructively, before or after the robberies.
McCaslin could see only the area right outside the front door of Granada Liquor.
The trial court’s decision not to apply section 654 and its imposition of a consecutive sentence for a violation of section 12021 was not supported by substantial evidence. Balint’s sentence on count 3 must be stayed.
DISPOSITION
Balint’s sentence on count 3 is ordered stayed. The superior court is directed to prepare an amended abstract of justice reflecting that modification and to forward a copy to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.
The necessity instruction stated: “A person is not guilty of a crime when he engages in an act, otherwise criminal, through necessity. The defendant has a burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely: [¶] 1. The act charged as criminal was done to prevent a significant and imminent evil, namely, a threat of bodily harm to oneself or another person; [¶] 2. There was no reasonable legal alternative to the commission of the act; [¶] 3. The reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided; [¶] 4. The defendant entertained a good-faith belief that his act was necessary to prevent the greater harm; [¶] 5. That belief was objectively reasonable under all the circumstances; and [¶] 6. The defendant did not substantially contribute to the creation of the emergency; and [¶] 7. The defendant reported to the proper authorities immediately after attaining a position of safety from the peril.”
The inconsistency within CALJIC is not confined to those two instructions. Some CALJIC instructions on defenses state that the prosecution has the burden of disproving the defense beyond a reasonable doubt or that the jury must acquit if it has a reasonable doubt as to the defense. (See CALJIC No. 4.21 [voluntary intoxication]; CALJIC No. 4.30 [unconsciousness]; CALJIC No. 4.47 [mental incapacity]; CALJIC No. 4.50 [alibi]; CALJIC 4.80 [parent’s right to discipline child]; CALJIC No. 5.15 [excusable or justifiable homicide].) Other CALJIC instructions state that the defendant has the burden of proving the defense by a preponderance of the evidence. (See CALJIC No. 4.00 [insanity]; CALJIC No. 4.43 [necessity]; CALJIC No. 4.60 [entrapment].) But several others, like CALJIC No. 4.40, say nothing about the burden of proof. (See CALJIC No. 4.23 [involuntary intoxication]; CALJIC No. 4.35 [mistake of fact]; CALJIC No. 4.45 [accident]; CALJIC No. 5.17 [unreasonable self-defense]; CALJIC No. 5.30 [self-defense against assault]; CALJIC No. 5.31 [self-defense with deadly weapon against assault with fists]; CALJIC No. 5.32 [defense of another against assault]; CALJIC Nos. 5.40-5.43 [defense of property].)
The CALCRIM instructions are an improvement in this respect but still exhibit a similar inconsistency. The CALCRIM instruction on duress includes a bracketed instruction concerning the burden of proof, but the bench notes do not explain when the bracketed instruction should be used or when (if ever) it should be omitted. (See CALCRIM No. 3402.) The CALCRIM instruction on involuntary intoxication likewise says nothing about the burden of proof. (See CALCRIM No. 3427.) In general, however, other CALCRIM instructions on defenses do identify the burden of proof. Some state that the prosecution has the burden of disproving the defense beyond a reasonable doubt or that the jury must acquit if it has a reasonable doubt as to the defense. (See CALCRIM No. 3400 [alibi]; CALCRIM No. 3405 [parental right to punish child]; CALCRIM No. 3406 [mistake of fact]; CALCRIM No. 3425 [unconsciousness]; CALCRIM No. 3426 [voluntary intoxication]; CALCRIM No. 3428 [mental impairment]; CALCRIM No. 3470 [self-defense or defense of another against assault]; CALCRIM Nos. 3475-3476 [defense of property].) And other CALCRIM instructions state that the defendant has the burden of proving the defense by a preponderance of the evidence. (See CALCRIM No. 3403 [necessity]; CALCRIM No. 3408 [entrapment]; CALCRIM No. 3450 [insanity]; CALCRIM No. 3455 [mental incapacity].)
When instructing a jury on defenses, the better practice would be to instruct the jury on who has what burden with respect to each defense. Some (but not all) CALJIC instructions do that, and some more (but still not all) CALCRIM instructions do it as well. We urge the drafting committees to review this issue with the aim of providing a uniform treatment that will give juries uniformly explicit guidance on the proper burden to be applied.