Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Super. Ct. No. SCD214795
NARES, J.
In January 2009 a jury convicted Jared Casey of robbery (count 1: Pen. Code, § 211), assault with a firearm (count 2: § 245, subd. (a)(2)), and possession of a firearm by a minor (count 4: § 12101, subd. (a)(1) (hereafter section 12101(a)(1)). The jury found true allegations in count 1 that Casey personally used a handgun within the meaning of sections 12022.53, subdivision (b), 12022.5, subdivision (a), and 1192.7, subdivision (c)(23). The jury also found true allegations in count 2 that Casey personally used a handgun within the meaning of sections 12022.5, subdivision (a), and 1192.7, subdivision (c)(23). The jury deadlocked, and the court declared a mistrial on the remaining charges of attempting to dissuade a witness (count 3: § 136.1, subd. (b)(1)) and carrying a loaded firearm (count 5: § 12031, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise specified.
Casey, who was a juvenile at the time of the offenses that are the subjects of this appeal, was tried as an adult.
The court sentenced Casey to a total term of 12 years in state prison, consisting of the lower term of two years for the count 1 robbery conviction plus a consecutive 10-year term for the accompanying true finding on the count 1 section 12022.53, subdivision (b) use of a handgun allegation. The court struck the count 1 section 12022.5, subdivision (a) use of a handgun allegation.
The court imposed, but stayed under section 654, the midterm of three years for the count 2 assault with a firearm conviction (§ 245, subd. (a)(2)), a consecutive term of four years for the true finding on the count 2 use of a handgun enhancement allegation (§ 12022.5, subd. (a)), and the midterm of two years as to the count 4 conviction for possession of a firearm by a minor (§ 12101(a)(1)).
Casey appeals, contending (1) the court abused its discretion under Evidence Code section 352 and deprived him of a fair trial by admitting evidence that the gun found in his bedroom was stolen from Amador Floresca during a burglary at Floresca's residence; (2) the court abused its discretion under Evidence Code section 352 by permitting the prosecutor to identify as probation officers the authorities who seized the gun from Casey's bedroom, thereby informing the jury that he was on probation at the time of his arrest in this matter; and (3) the guarantee against double jeopardy barred his prosecution as to count 4 (possession of a firearm by a minor in violation of § 12101(a)(1)) because that count was "based on the same evidence giving rise to an offense to which he had previously been convicted and sentenced in juvenile court."
We reverse the judgment on the ground the court prejudicially abused its discretion under Evidence Code section 352 by admitting unduly prejudicial evidence that the gun found in Casey's bedroom was stolen during the uncharged Floresca burglary. We also reverse Casey's count 4 conviction of possession of a firearm by a minor (§ 12101(a)(1)) and the resulting two-year sentence the court imposed (and stayed) based on that conviction, on the separate ground that his prosecution as to that count was barred by the protections guaranteed by the double jeopardy clauses of the federal and state Constitutions.
FACTUAL BACKGROUND
A. The People's Case
On November 25, 2007, Floresca and his wife returned from vacation to their home in Rancho Penasquitos and discovered it had been burglarized. Among the items stolen was a chrome-plated Ruger.357 magnum revolver. Floresca reported the burglary to the police.
All further dates are to calendar year 2007 unless otherwise specified.
Shortly after 7:00 p.m. on November 28, after his shift at work, Alejandro Valles, Jr., was sitting in his car near the intersection of Via Del Sud and Rancho Penasquitos Boulevard. A Black male wearing dark jeans and a dark blue or black hooded sweatshirt suddenly appeared in front of Valles and pointed a chrome revolver at his face. At the preliminary hearing, Valles indicated he had a clear look at the face of the gunman, who appeared to be about 16 or 17 years of age, and he positively identified Casey as the gunman at both the preliminary hearing and the trial in this matter.
At trial, when the prosecutor asked Valles how close the gunman got to him, Valles replied, "About six inches." Valles stated that although the sun had gone down, there was lighting from a church parking lot. The prosecutor asked Valles whether he "g[ot] a good look at the person's face, " and Valles replied, "Yes, I did." The prosecutor then asked him, "Was the lighting sufficient even though it was after dark for you to get a clear look at the person's face?" Valles answered, "Yes, it was." Valles stated that "[Casey] was standing right in front of me, " and he was able to see Casey's face for "about seven to ten minutes."
While pointing the chrome revolver at Valles's face, Casey said to him, "If you move, I'll shoot you." Two other Black males stood behind Casey. Both wore dark clothing and one wore pantyhose-type material over his face. Casey ordered Valles to get out of the car and demanded all of his money. Feeling threatened, Valles gave Casey his wallet, which contained $150 in a second compartment on the back side of the wallet. Casey looked through the wallet and, finding no money, threw it on the ground. After one of the other males told Casey to take Valles's credit cards, Casey ordered Valles to pick up his wallet and give it back to him. Valles complied.
Casey found and took the $150 and then told Valles to start walking to the bottom of the hill. After Valles turned and started walking down the hill, one of the males, who Valles believed was Casey, told him he would be shot if he called the "cops." Valles turned back and saw the robbers running up the hill.
Valles immediately called the police and reported that three Black males had robbed him. He described the gunman as being about 17 or 18 years of age, weighing 120 to 125 pounds, and standing about five feet nine or ten inches tall.
The next day (November 29), Casey's mother found a chrome revolver in the pocket of a parka hanging in Casey's bedroom closet. Casey's mother called Casey's probation officer to report the gun. Several probation officers came to Casey's home and found in his bedroom a chrome.357 magnum handgun, 34 rounds of.357 caliber ammunition, and a firearm cleaning kit. Casey was arrested at school that day.
Casey's probation officer, Senior Probation Officer Terrance Berman of the San Diego County Probation Department, made the decision to arrest Casey and assisted in taking him to juvenile hall for booking. Officer Berman indicated he was responsible for documenting any obvious injuries Casey might have had at that time, but Casey did not have any obvious injuries.
One of the investigating officers, Chula Vista Police Department Detective Frances Giaime, testified for the prosecution that he contacted Casey on November 29 in a well-lit area of juvenile hall. In his police report, he noted that Casey had a scar under his left eye, but he did not report any bruising. The scar was visible enough for Detective Giaime to notice it. However, there was not a major difference of contrast or coloration between the scarred area and the rest of the skin on Casey's face. Detective Giaime also indicated that he used the serial number of the gun found in Casey's bedroom to conduct a records check through a governmental website to identify the registered owner of the gun and determined the gun was registered to Floresca.
Casey eventually admitted in juvenile court a petition allegation that he unlawfully possessed the handgun on November 29, and the juvenile court ordered him to serve 240 days in local detention.
A few weeks following Casey's arrest, Valles viewed several six-pack photographic lineups depicting young-looking Black males and identified Casey as the gunman who robbed him. Valles circled Casey's photograph, indicating he was "80 percent sure" of his identification.
At trial, Floresca identified the chrome handgun seized in Casey's bedroom as the one stolen from him in the burglary of his residence. A Chula Vista Police Department detective testified that he verified the gun was registered to Floresca.
The licensed vocational nurse involved in the evaluation of juvenile inmates at San Diego County Juvenile Hall, Juliana Picore, testified she customarily records observable black eyes on her medical evaluation form. Specifically, the prosecutor asked her, "In the manner in which you routinely conduct your evaluation, would you make a note on some form or other that would reflect whether... an inmate had a fresh black eye?" Picore replied, "Yes, I would." When asked whether she "would [] still note it" if the person "had a black eye that looked like it was a few days old, " she again replied, "Yes, I would." When asked whether she would still note it if the person "had a black eye that looked like it was possibly even a week old, " once again she replied, "Yes, I would." Her reply was the same when the prosecutor next asked, "What if someone had anything that indicated that they had a black eye no matter how late it was, it was still observable, is that something you would note?" The form she filled out on November 29 did not indicate that Casey had any remnant of a black eye.
B. The Defense
Casey's mother testified that he got a black eye "earlier in the week" of Thursday, November 29, and indicated it was still visible when he was arrested that day.
Casey's girlfriend stated that he visited her at her parents' house in Oceanside on Thanksgiving, November 22. He had a noticeable black eye, which was bruised and swollen.
One of Casey's teachers, Ginger Adams, testified she noticed he had a black eye on the day he was arrested, and she did not recall seeing the black eye earlier in the week.
During Detective Giaime's cross-examination, at defense counsel's request and with the court's permission, Giaime approached Casey to get a good look at his face. Defense counsel then asked him, "[D]o you see the scar on [Casey's] face today that you saw on November 29th of 2007?" Detective Giaime replied, "I don't see a scar. I see a little discoloration kind of where the orbital socket is on the lower part of his eye." At the court's request, he clarified that he was referring to Casey's left eye. Defense counsel then asked, "But you don't see the scar itself?" Detective Giaime answered, "No, I don't see a scar."
A private investigator testified that the driving distance from Casey's home to the scene of the Valles robbery was 2.7 miles. The drive took about five minutes.
James Stam, a DNA expert, described the use of DNA as an identity tool, and stated that DNA could be deposited on an item by human touch. He opined that if a suspect handled a wallet, there would be a good chance of finding a usable quantity of the suspect's DNA on the wallet.
DISCUSSION
I. ADMISSION OF EVIDENCE OF THE UNCHARGED FLORESCA BURGLARY
Casey first contends the court prejudicially abused its discretion under Evidence Code section 352 and deprived him of a fair trial by admitting evidence that the gun found in his bedroom was stolen from Floresca during a burglary at Floresca's residence. He claims this evidence "lacked any probative weight" and was irrelevant and highly prejudicial. Although he acknowledges that "[i]t is undeniable that the gun found in [his] room was the gun taken in the burglary [because t]he serial numbers matched, " he maintains that the prosecutor's assertion that the gun found in Casey's bedroom and the gun used in the Valles robbery were identical "stretches the evidence beyond the breaking point." We conclude the judgment must be reversed on the ground the court prejudicially abused its discretion under Evidence Code section 352 by admitting, over a defense objection, evidence that the gun found in his bedroom was stolen during the Floresca burglary.
A. Applicable Legal Principles
1. Admissibility of Evidence of Other Crimes
In People v. Thompson (1980) 27 Cal.3d 303 (Thompson), the California Supreme Court set forth the general principles that govern the admissibility of evidence of other crimes. The high court explained that "[e]vidence of an uncharged offense is usually sought to be admitted as 'evidence that, if found to be true, proves a fact from which an inference of another fact may be drawn.' " (Id. at p. 315, fn. omitted.) The Thompson court also explained that "[t]he admission of any evidence that involves crimes other than those for which a defendant is being tried has a 'highly inflammatory and prejudicial effect' on the trier of fact" and noted it had "repeatedly warned that the admissibility of this type of evidence must be 'scrutinized with great care.' " (Id. at p. 314, fns. omitted.) As with other types of circumstantial evidence, the admissibility of evidence of other crimes "depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence." (Id. at p. 315.) A closely reasoned analysis of the pertinent factors (hereafter referred to as the Thompson factors) must be undertaken before the admissibility of such evidence can be determined. (Id. at p. 314.)
With respect to the first Thompson factor, the fact sought to be proved, in order to satisfy the requirement of materiality, may be either an ultimate fact that is actually in dispute in the proceeding or an intermediate fact from which an ultimate fact may be presumed or inferred. (Thompson, supra, 27 Cal.3d at p. 315.) If an accused has not placed an ultimate fact in dispute, evidence of uncharged offenses may not be admitted to prove it. (Ibid.)
In a footnote, Thompson explained that "[b]oth the identity of the perpetrator and the elements of the charged crimes are ultimate facts in a criminal case, as are the elements of certain defenses." (Thompson, supra, 27 Cal.3d at p. 315, fn. 13.)
With respect to the second Thompson factor, "[i]n ascertaining whether evidence of other crimes has a tendency to prove the material fact, the court must first determine whether... the uncharged offense serves 'logically, naturally, and by reasonable inference' to establish that fact." (Thompson, supra, 27 Cal.3d at p. 316.) "When evidence tends to prove a material fact, it is said to be relevant evidence." (Id. at p. 316, fn. 15, citing Evid. Code, § 210.) "If the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." (Id. at p. 316; see also People v. Albertson (1944) 23 Cal.2d 550, 577 ["if [the] connection [of the evidence of other crimes] with the crime charged is not clearly perceived, the doubt is to be resolved in favor of the accused"].)
With respect to the third Thompson factor, "interrelated extrinsic policies tend to limit the admissibility of evidence of other crimes despite the fact that the evidence may be relevant to prove a material fact. Evidence Code section 1101, subdivision (a)[, for example, ] expressly prohibits the use of an uncharged offense if the only theory of relevance is that the accused has a propensity (or disposition) to commit the crime charged and that this propensity is circumstantial proof that the accused behaved accordingly on the occasion of the charged offense." (Thompson, supra, 27 Cal.3d at p. 316.) Under that subdivision, a court is not permitted to balance the probative value of the other crimes evidence against its prejudicial effect, and "[t]he inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact." (Id. at p. 317.) The law places other restrictions on the admissibility of other crimes evidence because it can be highly prejudicial even if it is relevant under a theory of admissibility that does not rely on proving disposition. (Thompson, supra, 27 Cal.3d at p. 318; see also People v. Griffin (1967) 66 Cal.2d 459, 466 ["Regardless of its probative value, evidence of other crimes always involves the risk of serious prejudice"].) For example, such evidence is excluded under a rule of necessity if it is merely cumulative. (Thompson, supra, at p. 318.) Furthermore, of particular relevance here, under Evidence Code section 352 "the probative value of this [other crimes] evidence must outweigh its prejudicial effect." (Thompson, supra, 27 Cal.3d at p. 318.) Evidence of uncharged offenses is admissible only if (among other things) it has substantial probative value because substantial prejudicial effect is inherent in such evidence, and such evidence should be excluded "[i]f there is any doubt." (Ibid.)
In a footnote, Thompson explained that probative value goes to the weight of the evidence of other offenses, and the evidence is probative if it is material, relevant, and necessary.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice...." (Italics added.)
The "undue prejudice" that "exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence[, as 'all] evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) The California Supreme Court has explained that the term "prejudice" as used in Evidence Code section 352 refers to evidence which " 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' " (Karis, supra, 46 Cal.3d at p. 638.)
2. Standard of review (Evid. Code, § 352 )
A trial court ordinarily has broad discretion in determining whether to admit or exclude evidence objected to on the basis of Evidence Code section 352, and rulings under this section will not be overturned absent an abuse of that discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) However, where (as here) the evidence is of an uncharged crime, a trial court's discretion to admit or exclude such evidence under Evidence Code section 352 is necessarily limited by the principles and policies discussed in Thompson, supra, 27 Cal.3d at pages 314-318.
An error in the admission or exclusion of evidence following an exercise of discretion under Evidence Code section 352 is tested for prejudice under the Watson harmless error test. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under the Watson test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.)
People v. Watson (1956) 46 Cal.2d 818.
B. Background
Count 5 of the information charged Casey with carrying a loaded firearm in a public place on November 28 (the day of the Valles robbery) in violation of section 12031, subdivision (a)(1). In that count, the information also alleged Casey was "not listed with the Department [o]f Justice pursuant to Section 11106, as the registered owner of the firearm capable of being concealed upon the person" within the meaning of section 12031, subdivision (a)(2)(F)..
During a pretrial hearing, the court considered the admissibility of evidence of the Floresca residential burglary involving the theft of Floresca's chrome revolver (which, as already noted, was found in Casey's bedroom the day after the November 28 Valles robbery), and the relevance of that evidence to count 5 and the robbery count (count 1). Noting that "the theory of count 5 is that... the Department of Justice does not have [Casey's] name listed as the registered owner of the firearm, " the court asked for the prosecutor's offer of proof.
In his offer of proof, the prosecutor argued that he sought to present evidence of the Floresca burglary (1) as circumstantial evidence that Casey was not the registered owner of the gun for purposes of the count 5 enhancement allegation; (2) to identify Casey, in whose bedroom the stolen gun was found the day after the Valles robbery, as the person who committed that robbery by eliminating the registered owner of the gun (Floresca) as a possible suspect; and (3) to show that Casey had recently acquired the stolen gun and thus intended to use it to commit the Valles robbery. The prosecutor emphasized he did not seek to present evidence of the Floresca burglary to show that Casey committed that burglary.
Defense counsel objected, suggesting that the prosecution was attempting to present evidence of the Floresca burglary for the purpose of proving Casey had committed the prior bad act of receiving stolen property. Defense counsel also objected under Evidence Code section 352 that such evidence would lead the jury to assume Casey had committed the Floresca burglary, when there was no evidence to show he committed that offense, thereby denying him a fair trial.
The court ruled it would allow Floresca to testify that he was the owner of the gun found in Casey's bedroom, that the gun was stolen, and to the circumstances under which it was stolen, but the court would give a limiting instruction, to be prepared by Casey's counsel, to the effect that Casey was not accused of, he was not on trial for, and there was no evidence that he was guilty of residential burglary. The court reasoned that such testimony was relevant to show that, at the time of the alleged Valles robbery, Casey had "recently acquired the weapon with the accompanying inference that one who recently acquires a weapon does it for a reason, " and this, in turn, was relevant to intent, motive, and planning. The court also indicated that because it appeared the evidence would show the gun did not belong to Casey and thus the jury might wonder whether the owner of the gun was involved in the crime, the People "ha[d] the right to start their case-in-chief to eliminate other possible suspects, " such as the owner of the gun.
At trial, Floresca testified that he and his wife returned home from a vacation on November 25 and found that his Ruger.357 magnum revolver had been stolen. He reported the theft to the police. Floresca stated he had registered the gun after he bought it, and he had in his possession the registration card on which he had written the serial number of the gun. The prosecutor showed Floresca the Ruger.357 magnum revolver found in Casey's bedroom, and twice asked him, "Does that appear to be your gun?" Each time Floresca answered, "Yes, sir." Floresca also testified that a detective had returned the gun to him, and he agreed to allow the prosecution to borrow the gun for purposes of the trial in this matter.
Casey moved for a mistrial outside the presence of the jury, arguing that Floresca's testimony was more prejudicial than probative within the meaning of Evidence Code section 352, and it violated his (Casey's) right to due process and a fair trial. Referencing its earlier in limine ruling, the court denied the motion, finding the testimony was not unduly prejudicial.
Detective Giaime testified that by conducting a records check using the serial number of the Ruger.357 magnum revolver in question, he verified it was in fact registered to Floresca.
Later, during jury instruction discussions outside the presence of the jury, defense counsel indicated he had forgotten to prepare a limiting instruction regarding the Floresca burglary evidence.
Regarding the Floresca burglary, the court permitted the prosecutor to tell the jury during closing arguments: "I want to make perfectly clear that there's no evidence that the defendant was involved in the burglary itself. We are not alleging that. He's not charged with that." During his closing argument, defense counsel reiterated to the jury that "there is no evidence that [Casey] was involved in [the Floresca] burglary, " and the People "[are] not accusing him of that." He also argued that "[t]here's no way [the Floresca burglary] proves that [Casey] committed a crime of... armed robbery on the night in question or on any night."
C. Analysis
Having reviewed the entire record, we conclude the probative value of the Floresca burglary evidence was de minimis, it was substantially outweighed by a probability the admission of that evidence would create a substantial danger of undue prejudice to Casey, and thus the court prejudicially abused its discretion under Evidence Code section 352 by admitting that evidence over his objection.
In reaching these conclusions, we first examine the materiality of the fact or facts the prosecution sought to prove by means of the Floresca burglary evidence. (See Thompson, supra, 27 Cal.3d at p. 315.) As already noted, the prosecutor indicated to the court in his offer of proof, outside the presence of the jury, that he sought to present this evidence as circumstantial evidence that (1) Casey was not the registered owner of the gun for purposes of the count 5 enhancement allegation; (2) Casey, in whose bedroom Floresca's stolen gun was found the day after the Valles robbery, was the person who committed that robbery because the registered owner of the gun, Floresca, did not have the gun on the day of the robbery and thus could be eliminated as a suspect; and (3) Casey intended to use the stolen gun to commit the Valles robbery because he had recently acquired it.
We conclude that all three of the alleged facts the prosecution sought to circumstantially prove by means of the Floresca burglary evidence─i.e., the alleged fact that Casey was not the registered owner of the gun, his identity as the alleged robber, and his alleged intent to rob Valles through the use of the recently acquired gun─were material because they were ultimate facts to be decided by the jury in this case. Specifically, whether he was the registered owner of the gun he allegedly possessed at the time of the robbery on November 28 was an ultimate issue of fact the jury was required to decide in determining whether the count 5 section 12031, subdivision (a)(2)(F) enhancement allegation was true or false. Casey's identity was an ultimate issue of fact raised in the counts of which he was convicted in this matter (i.e., count 1: § 211 [robbery]); count 2: § 245, subd. (a)(2) [assault with a firearm]); & count 4: § 12101(a)(1) [possession of a firearm by a minor]). Whether he acted with the requisite specific intent in allegedly committing the Valles robbery, of course, was an ultimate issue of fact raised in count 1.
The enhancement allegation in count 5 of the information states: "[I]t is further alleged that [Casey] is not listed with the Department [o]f Justice pursuant to Section 11106, as the registered owner of the firearm capable of being concealed upon the person, within the meaning of [section] 12031[, subdivision] (a)(2)(F)." (Italics added.)
Although we conclude the foregoing alleged facts the prosecution sought to circumstantially prove by presenting evidence of the uncharged Floresca burglary were material, we also conclude the probative value of that evidence was de minimis because it was either unnecessary or had little or no tendency to prove or disprove those alleged facts. First, the Floresca burglary evidence had little or no probative value on the factual question of whether Casey was the registered owner of the gun, because the presentation of that evidence was not necessary to establish he was not the registered owner. During his testimony on behalf of the prosecution, Detective Giaime indicated he used the serial number of the gun found in Casey's bedroom to conduct a records check through a governmental website to determine the identity of the registered owner of the gun, and he determined the gun was registered to Floresca. Thus, on the factual issue of whether Casey was not the registered owner of the gun, the prosecution did not need to present evidence that the gun was stolen from Floresca during a burglary.
Second, the Floresca burglary evidence had little or no probative value with respect to the factual issue of the identity of the perpetrator of the Valles robbery. The prosecutor argued he needed to show that the gun found in Casey's bedroom the day after the robbery had been stolen during the Floresca burglary in order to (1) show that Floresca, as the registered owner, could be eliminated as a suspect, and (2) thereby circumstantially prove that Casey committed the robbery because Floresca did not possess the gun at the time of the robbery. We conclude, however, that the evidence showing the gun Casey allegedly used to commit the robbery had been stolen recently from the registered owner, Floresca, and thus Floresca could be eliminated as a suspect, had a de minimis tendency to prove that Casey perpetrated the Valles robbery because the record is devoid of any evidence suggesting that Floresca, who testified at trial, matched the description of the robber given by Valles, who also testified at trial.
Third, the Floresca burglary evidence had little or no probative value with respect to the factual issue of whether Casey acted with the requisite specific intent in allegedly committing the Valles robbery. The prosecutor argued that Casey's acquisition of a stolen gun a few days before the commission of the Valles robbery showed as a "fair inference" that Casey "acquired the gun for the purpose of using that gun for a robbery." However, as defense counsel pointed out in response, the prosecution had no evidence to show that Casey knew the gun he allegedly used to rob Valles was stolen, and Casey was not charged with possession of stolen property (§ 496).
Against the de minimis probative value of the Floresca burglary evidence, we must carefully balance the inherently prejudicial effect of that evidence, and determine whether that extremely marginal probative value was substantially outweighed by a probability the admission of that evidence would create a substantial danger of undue prejudice to Casey. (See Evid. Code, § 352; Thompson, supra, 27 Cal.3d at p. 318.)
We conclude the de minimis probative value of the Floresca burglary evidence was substantially outweighed by a probability the admission of that evidence would create a substantial danger of undue prejudice to Casey. The prosecutor acknowledged the prejudicial nature of this evidence, conceding "it may have some prejudicial effect." The court also acknowledged the prejudicial nature of this evidence both when it admonished the prosecutor not to imply during trial that Casey was the one who stole the gun from Floresca during a burglary and when it indicated it would seek to reduce the prejudicial effect of the admission of the evidence by giving to the jury a limiting instruction to be prepared by defense counsel. The court stated, "I am certainly happy to tell the jury that [Casey] is not accused of, is not on trial for[, ] and there is no evidence before you that he is guilty of a residential burglary; that this evidence is only being presented to show where the gun came from, something along those lines." The prosecutor responded, "I will support that sort of instruction."
After acknowledging, at the beginning of the trial, the highly prejudicial nature of the Floresca burglary evidence, the court later decided it would not give a limiting instruction with respect to the permissible scope of the jury's use of that evidence. During its discussion with counsel about the instructions it would give to the jury following the close of evidence, the court stated, "I'm reluctant to highlight that residential burglary to the point of a jury instruction."
Without an instruction from the court as to how it was permitted to use the Floresca burglary evidence, the jury was left to speculate whether Casey was involved in that burglary. We are persuaded the admission of testimony showing that Casey possessed the gun stolen from Floresca during the uncharged burglary, without a limiting instruction given by the court, created a substantial risk that this evidence would evoke in the minds of the jurors an emotional bias against Casey that would influence their deliberations and factual determinations. The prosecution's case rested to a large extent on the eyewitness identification of the robbery victim, Valles, who acknowledged he had been only "80 percent sure" of his identification of Casey after he viewed the six-pack photographic lineups. Although Valles testified on direct examination that he "[g]ot a good look" at the robber's face, he acknowledged the sun had already gone down and the only lighting was the lighting from a church parking lot. With Casey present in the courtroom, Valles stated that Casey's hair at trial was "short and straight, " but then testified that on November 28 the robber's hair "looked like tight curls" and was longer Furthermore, on cross-examination by defense counsel, Valles indicated the lighting was sufficient for him to be able to see the robber's face, and the robber had no scars or bruises on his face.
Valles's testimony was directly contradicted by several defense witnesses. One of Casey's teachers testified he had a "significant black eye that was quite noticeable" on the day he was arrested, which was November 29, the day after Valles was robbed. Casey's mother testified he got a black eye "earlier in the week" of Thursday, November 29, and indicated it was still visible when he was arrested. Casey's girlfriend testified for the defense that when Casey visited her at her parents' house in Oceanside on Thanksgiving, November 22, he had a noticeable black eye, which was bruised and swollen.
The foregoing defense evidence that Casey had a significant and noticeable black eye both before and after the Valles robbery is in stark contrast not only to Valles's testimony that he saw no bruises on the robber's face, but also to the testimony of Detective Giaime, who testified for the prosecution and indicated he contacted Casey on November 29 in a well-lit area of Juvenile Hall. Detective Giaime would have indicated in his police report any bruises, black eyes, or other identifying marks on Casey's face; however, in his police report he only reported that Casey had a scar under his left eye. In other words, Detective Giaime did not indicate in his report that Casey had a black eye that day. We note that during his cross-examination of Detective Giaime, defense counsel effectively sought to challenge his credibility. Defense counsel asked Detective Giaime to approach Casey to get a good look at his face. With the court's permission, Detective Giaime did so. Upon further questioning by defense counsel, Detective Giaime indicated he did not see a scar under Casey's left eye.
In light of the foregoing contradictory identification evidence, the court's erroneous admission of the highly prejudicial evidence that the gun found on November 29 in Casey's bedroom had been stolen in the uncharged Floresca burglary undermines confidence in the entire judgment. Applying the Watson harmless error test, we conclude Casey has demonstrated it is reasonably probable he would have obtained a more favorable result in the absence of the court's erroneous admission of the Floresca burglary evidence. Accordingly, we reverse the entire judgment.
II. EVIDENCE THAT CASEY WAS ON PROBATION
Casey also contends the court prejudicially abused its discretion under Evidence Code section 352 by permitting the prosecutor to identify as probation officers the authorities who seized the gun from his bedroom, thereby informing the jury that he was on probation at the time of his arrest in this matter. In light of our foregoing conclusion that the judgment must be reversed on the ground the court prejudicially abused its discretion under Evidence Code section 352 by admitting the unduly prejudicial evidence of the uncharged Floresca burglary, we need not further address this contention.
III. DOUBLE JEOPARDY CLAIM
Last, Casey contends the guarantee against double jeopardy barred his prosecution as to count 4 (possession of a firearm by a minor in violation of § 12101(a)(1)) because that count was "based on the same evidence giving rise to an offense to which he had previously been convicted and sentenced in juvenile court." We conclude Casey's conviction of count 4 must be reversed on the separate ground that it violated the protections of the double jeopardy clauses of the federal and state Constitutions.
A. Applicable Legal Principles
In People v. Bright (1996) 12 Cal.4th 652, 660, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 550, footnote 6, the California Supreme Court explained that "[t]he double jeopardy clauses of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and article I, section 15, of the California Constitution, guarantee that a person shall not be placed twice 'in jeopardy' for the 'same offense.' The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense."
B. Background
Following his arrest at school after the probation officers found the gun in his bedroom on November 29, Casey eventually admitted in juvenile court an allegation in count 1 of a Welfare and Institutions Code section 602 petition filed on December 5 that he unlawfully possessed a concealable handgun on that date without the written permission of or accompaniment by a parent in violation of section 12101(a)(1). The juvenile court ordered him to serve 240 days in local detention.
By order dated October 14, 2009, this court granted Casey's unopposed request for judicial notice of (1) the juvenile court's minutes of the December 6, 2007 detention hearing in People v. Jared (Super. Ct. San Diego County, 2007, No. JCM207082#07), and (2) the Welfare and Institutions Code section 602 petition filed in that case.
In the instant adult prosecution, Casey was convicted of the same offense (§ 12101(a)(1)), based on the act of possessing the same handgun on November 28 (the day of the Valles robbery), as alleged in count 4 of the information, and was sentenced to the stayed midterm of two years. During an in limine proceeding, defense counsel had moved to the court to enter a plea of "once in jeopardy" as to count 4 on the ground Casey had already been successfully prosecuted on that count in juvenile court, and the court denied the motion.
C. Analysis
The dispositive issue we must decide is whether Casey's possession of the same handgun during the two-day period in question─November 28 (the day of the Valles robbery) and 29 (the day the probation officers found the gun in Casey's bedroom)─constituted two separate violations of section 12101(a)(1) or one continuing violation of that statute. If that two-day possession of the firearm constituted two separate violations, as the People contend, Casey's conviction of count 4 of the information in this case, based on the November 28 possession, does not violate the protection of the double jeopardy clauses of the federal and state Constitutions.
We conclude that Casey's possession of the handgun during the two-day period of November 28 and 29 constituted one continuing offense. In People v. Warren (1940) 16 Cal.2d 103, 112 (Warren), the California Supreme Court, in applying section 2 of the Deadly Weapons Act that prohibited the possession of a firearm capable of being concealed upon the person by a person convicted of a felony, explained that under the Act, which did not provide it was an offense for each day the ex-convict was in possession of the weapon, such possession was "continuous and constitute[d] but one offense."
Section 2 of the Deadly Weapons Act provided: "On and after the date upon which this act takes effect, no person... who has been convicted of a felony under the laws of the United States, of the State of California, or any other state... shall own or have in his possession or under his custody or control any... firearm capable of being concealed upon the person...." (People v. Warren, supra, 16 Cal.2d at p. 108.)
Warren thus stands for the proposition that if the unlawful possession of a firearm continues beyond one day, and the statute proscribing the possession does not provide that each day of possession is punishable as a separate offense, the continuing possession constitutes but one offense. (See also People v. Bland (1995) 10 Cal.4th 991, 999 [possession of a controlled substance is "a 'continuing' offense, one that extends through time"].)
Here, section 12101(a)(1), the statute under which Casey was convicted of count 4, provides: "A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person." Subdivision (c) of that section, which specifies the punishment for a violation of section 12101(a)(1), does not provide that each day of possession is punishable as a separate offense.
Subdivision (c) provides: "Every minor who violates this section shall be punished as follows: [¶] (1) By imprisonment in the state prison or in a county jail if one of the following applies: [¶] (A) The minor has been found guilty previously of violating this section. [¶] (B) The minor has been found guilty previously of an offense specified in subdivision (b) of Section 12021.1 or in Section 12020, 12220, 12520, or 12560. [¶] (C) The minor has been found guilty of a violation of paragraph (1) of subdivision (a). [¶](2) Violations of this section other than those violations specified in paragraph (1) shall be punishable as a misdemeanor."
Because section 12101, like the Deadly Weapons Act involved in Warren, supra, 16 Cal.2d 103, does not provide that each day of possession in violation of section 12101(a)(1) is punishable as a separate offense, we conclude the continuing possession of a firearm in violation of that statute constitutes but one offense.
Accordingly, we also conclude that (1) Casey's continuing possession of the handgun on November 28 and 29 constituted one continuing violation of section 12101(a)(1), rather than two separate violations of that statute; (2) he had been once in jeopardy for that possession of the handgun when he was prosecuted, adjudicated, and punished as a juvenile under 12101(a)(1) based on the probation officers' discovery of the handgun in his bedroom on November 29; and thus (3) his conviction of count 4, and the resulting sentence imposed (but stayed) on that count, must be reversed because his prosecution and conviction as an adult in this matter under the same statute based on his possession of that firearm during the November 28 Valles robbery was barred by the protections guaranteed by the double jeopardy clauses of the federal and state Constitutions.
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings as to counts 1 (robbery: § 211) and 2 (assault with a firearm: § 245, subd. (a)(2)) and related allegations only.
WE CONCUR: HUFFMAN, Acting P.J., O'ROURKE, J.