Opinion
A147684
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA LEE DAVENPORT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR304746)
Joshua Davenport was convicted of participating in the robbery of a U-Haul rental center, threatening one of the robbery victims, and unlawfully possessing a firearm used in the robbery. He argues the trial court erred by refusing to sever his trial from a codefendant's; admitting a statement by the codefendant that indirectly implicated Davenport; admitting a weapon linked to Davenport that was not used in the charged crimes; and admitting an expert opinion that a gun shown in a video of the robbery was a gun in evidence linked to Davenport. We affirm.
I. BACKGROUND
Davenport was charged with committing a second degree robbery of Antonio Tinoco and Jeffery Beukelman, employees of a Vacaville U-Haul rental center (Pen. Code, § 211; counts 1, 2); assault of Tinoco and Beukelman with a firearm (§ 245, subd. (a)(2); counts 3, 4); dissuading a witness (Tinoco) by force or threat (§ 136.1, subd. (c)(1); count 5); and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 6). It was alleged with respect to count 1 that Davenport personally used a handgun (§§ 12022.5, subd. (a), 12022.53, subd. (b), and 1203.06, subd. (a)(1)), causing the offense to be a serious and violent felony (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8)). It was further alleged with respect to counts 1 and 2 that a principal was armed within the meaning of section 12022, subdivision (a)(1). As to all counts, it was alleged that Davenport had served three prior prison terms within the meaning of section 667.5, subdivision (b). Davenport was jointly tried with a codefendant, Michael Delacruz, who was also charged in counts 1 through 4. The following evidence was presented to a jury.
Undesignated statutory references are to the Penal Code.
The information cites section 12022.5, subdivision (a)(1), but section 12022.5, subdivision (a) has no further subdivisions.
An amended information was filed November 5, 2015, about two weeks before trial commenced. Some language in the information stated that the personal use allegation pursuant to sections 1203.06 and 12022.5, subdivision (a)(1) applied to Davenport as to "counts ONE through FIVE." The information separately applied the personal use allegation (pursuant to the previously cited sections and section 12022.53, subdivision (b)) to Davenport as to count 1 and to Delacruz as to count 2. The verdict form presented to the jury asked for a finding on the personal use allegation only as to count 1 in Davenport's case. We summarize the charges as they were presented to the jury.
On January 5, 2014, from about 1:45 to 2:25 p.m., Davenport, Delacruz, Jessika Alcantara (then Jessika Davenport), and a third man were recorded by surveillance cameras inside a gun store in Vacaville. The video showed them in the store handling merchandise. At about 2:45 p.m., Davenport and Alcantara entered a Vacaville U-Haul rental center. Alcantara rented an enclosed trailer for a one-way trip to Texas with the help of Tinoco, the assistant manager. When Tinoco helped Alcantara attach the rented trailer to her 2003 Chevy Tahoe, he saw two men sitting in her car. A surveillance videorecording of the rental transaction was played for the jury.
That same afternoon, Juanita Villafuerte drove her tan Ford Expedition to Alcantara's home in Suisun to help Alcantara pack for her planned move to Texas. Alcantara arrived with Davenport, Delacruz and another man. Villafuerte helped Alcantara load the trailer and agreed to loan Alcantara her Ford Expedition to retrieve boxes from another location. Davenport, Delacruz and the other man left in Villafuerte's vehicle.
After the U-Haul center closed to the public at 5:00 p.m., Tinoco, Beukelman and another employee remained to finish up the day's work. Davenport drove up with Delacruz and the third man. Tinoco identified the car as Villafuerte's tan Ford Expedition. Beukelman saw "a black pit bull/lab mix" in the car. Davenport asked Beukelman about the center's "trailer policy" and Beukelman summoned Tinoco, who went out to speak to Davenport while Beukelman returned to the garage. Davenport told Tinoco he had damaged the trailer and asked if he could trade it in for a new one. Tinoco said the damage needed to be reported and left to retrieve insurance information. When Tinoco returned and handed Davenport a brochure through the car window, Davenport pointed a semiautomatic handgun at him from below the driver's side window. Davenport told Tinoco he should not do anything dumb, that they were there for the money, and no one would be hurt if Tinoco followed instructions. Davenport told him to empty his pockets, and Tinoco turned over his cellphone and wallet. Davenport then told Tinoco not to give the police a good description of him or tell the police he had been to the U-Haul center earlier that day. Davenport said he knew where Tinoco lived (from identification cards in his wallet). Tinoco felt threatened.
Beukelman believed the vehicle was a dark green Chevrolet Trailblazer.
While Davenport was talking to Tinoco, Delacruz and the third man approached Beukelman, told him to open the rental center door, and pointed a gun at the back of Beukelman's head when he at first denied knowing the code. Beukelman opened the door to the rental center. Cash register drawers were laying open on a counter, and $300 was missing after the robbery. Beukelman never saw a gun on Delacruz, but Tinoco saw guns on both Delacruz and the third man. A surveillance video recording of Delacruz's and the third man's interaction with Beukelman was played for the jury.
Tinoco called 911 to report the robbery, and police arrived promptly. Tinoco described the incident, told the officers Davenport had been there earlier in the day, and helped retrieve the rental transaction video from the center's surveillance system. Tinoco and Beukelman separately identified Davenport in a photo lineup that evening.
When Davenport neither returned Villafuerte's vehicle nor called, Alcantara downloaded a "police scanner app" on her tablet. After Villafuerte heard mentions of her car and "Davenport" on the scanner, she called police to report her car stolen. She later admitted she gave Davenport permission to use her car. Davenport never returned with her car.
A credit card from the wallet Tinoco gave Davenport was used at an Oakland QuikStop Market in the evening of January 5, 2014. A video from the market surveillance camera showed Delacruz at the store at around the time the credit card was used.
On January 6, 2014, the day after the robbery, police executed a search warrant on the Suisun residence, Alcantara's Tahoe, and the U-Haul trailer. During the search, police found items associated with Davenport: a letter addressed to him at the Suisun residence, a credit card in his name, and a leather vest with a "Josh" patch. On the patio where the vest was found, police also found a double holster designed for a long-barreled gun, a dog crate, and dog food.
On January 9, police located Alcantara's Chevy Tahoe and the U-Haul trailer at a Motel 6 in Gilroy. When Alcantara left the motel with four children in the Tahoe, she was stopped by police and arrested. Davenport was located in a room at the motel and arrested after extended negotiations. No other persons were located or arrested from the room, but a "pit-bull-type" dog was found in the bathroom. An unloaded Dan Wesson .357 caliber revolver was found hidden in a heater vent in the room when it was searched shortly after Davenport's arrest. Also found in the room was a pendant that Davenport could be seen wearing in the U-Haul and gun store surveillance videos. When Davenport was brought to the police station, he yelled at Alcantara in an adjacent holding area: "No statements to the cops. No statements. Tell them you want an attorney. I mean it, Jessika. I'm serious."
Alcantara consented to a police search the U-Haul trailer. In the trailer, an unloaded Colt .41 caliber revolver was found in a backpack that also contained a bottle of men's cologne. No fingerprints were found on the cologne bottle, Colt .41, or Dan Wesson. No ammunition or casings were ever found for either gun.
The Colt .41 fit the holster previously found at the Suisun residence, but the Dan Wesson did not. Investigating Detective Adam Senf qualified as an expert on the identification of firearms and testified that Delacruz appeared to be holding the recovered Colt .41 in a still shot taken from the robbery video. He testified that the third man appeared to be holding a model 1911 .45 caliber handgun in the same video. A firearms expert called by Delacruz disputed Senf's testimony and testified the gun shown in the video could not be positively identified as the Colt .41 found in the U-Haul trailer, and could not be distinguished as a real versus imitation firearm.
The jury found both defendants guilty on all counts and found all allegations true except for the personal firearm use allegation against Davenport with respect to the robbery of Tinoco. The court found all three of Davenport's prior prison term allegations true. Davenport was sentenced to consecutive terms totaling 12 years: a five-year upper term on the robbery of Tinoco plus one year for the arming enhancement; one year for the robbery of Beukelman plus four months for the arming enhancement; one year for the witness intimidation conviction; eight months for the firearm possession conviction; and three one-year enhancements for the priors. Imposition of sentence was stayed for the assault convictions under section 654.
II. DISCUSSION
A. Severance and Related Issues
Davenport argues the trial court prejudicially erred by denying his motion to sever his trial from that of Delacruz, admitting Delacruz's statements that he "[d]id what I was told" and he was "[s]cared for my life" in the joint trial, and allowing Delacruz to raise a duress defense in the joint trial. The People argue there was no error or prejudice. We conclude there was no prejudicial error.
1. Background
Davenport moved to sever his trial from that of Delacruz, arguing that admission at a joint trial of statements given to police by his codefendants violated the Aranda-Bruton rule. The court redacted Delacruz's statement to police to exclude any reference to Davenport and denied the severance motion. During trial, Davenport learned that a comment he had expected to be redacted from Delacruz's statement was going to be admitted. When police asked Delacruz what he did when he got out of the car at U-Haul center, he responded: "Did what I was told to do." The statement had been added at the request Delacruz's defense counsel in support of a duress defense. Davenport objected to admission of the statement and renewed his motion to sever. The court denied the motion, explaining: " 'Someone made me do it,' doesn't say your guy did it. There is another guy involved. Who is to say that it's your client that made him do it?" The court later specifically observed: "[F]rom what I saw in the video [of the U-Haul robbery], the person who seems to be doing all of the talking and the gun pointing and all of that is not your client but this other [third] guy."
Alcantara was a codefendant at the time of the motion, but not at the time of trial. We are not informed of the disposition of her matter.
Bruton v. U.S. (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.
The court apparently agreed to admit the disputed comment at a Miranda hearing on Delacruz's statement that Davenport's counsel did not attend. The prosecutor told the court she had informed Davenport's counsel of the change by e-mail and never heard back from him. Davenport's counsel said he first heard of the change in the prosecutor's opening statement.
Later in the trial, before Delacruz's videotaped statement was played for the jury, Davenport renewed his objection to admission of the comment. "[N]ow that there has been direct evidence in the People's case which they believe establishes the identity of my client, . . . Delacruz's statement even runs further afoul of the Aranda-Bruton decision[s]." In the alternative, he requested a limiting instruction informing the jury that Delacruz's entire statement should be considered only as to Delacruz and not Davenport. The court denied the motion to exclude but agreed to provide a limiting instruction.
During cross-examination of Senf by counsel for Delacruz, the following colloquy occurred:
"Q. At the time that you interviewed Michael Delacruz, he was 17 years old?
"A. Yes.
"Q. [D]id he say in the course of this interview when you were trying to get him to make admissions and you said that he was lying to you, . . . 'I understand. But when you're scared for your life'? Did he say that?
"A. I believe something similar to that, yes. [¶] . . . [¶]
"Q. And also he said he did what he was told?
"A. Yes. He said that.
"Q. And the age of Mr. Davenport was 38?
"A. At the time I believe it was 38, yes.
"Q. And this is a boy of 17?
On direct examination of Senf, the prosecutor also asked: "Q. [Y]ou interviewed Defendant Delacruz on January 15th of 2014? "A. Yes. "Q. And how old was Defendant Delacruz at the time? "A. 17. "Q. And if you know, how old was Joshua Davenport in January of 2014? "A. I believe 38."
After the close of evidence, the court granted, over objection of both Davenport and the prosecution, Delacruz's motion for an instruction on duress. Davenport reminded the court this was the reason for the motions to sever trial and argued the duress instruction would lighten the prosecutor's burden of proof on the charge against him. In closing argument, Davenport's counsel reminded the jury that Delacruz's statement was not to be used against him, but recognized "there's going to be some attempt [by Delacruz] to try to say, well, he was afraid or he was scared, and it's all Mr. Davenport's fault." He noted the third man, not Davenport, stood next to Delacruz during the robbery.
Delacruz argued he acted under duress, citing the age difference between him and Davenport, Davenport's felony criminal history, and the prosecutor's argument that Davenport planned the robbery. The court sustained an objection by Davenport and said Davenport's "felony conviction only comes in for purposes of his possession of a firearm and not for any other purpose." Delacruz's counsel repeated that Davenport was "a very probably dangerous person," to which the court sustained yet another objection by Davenport. Delacruz's counsel continued to hammer home that Delacruz " '[d]id what [he] was told to do.' [¶] He was told to do this. He was told to do this."
The prosecution emphasized that the jury could not use Delacruz's statement against Davenport and argued that Delacruz did not act under duress. In urging the jury to reject an appeal to sympathy by Delacruz, however, she stated: "[T]here were a lot of comments, 'Oh, he was 17 years old at the time.' And he was. I'm not denying that. . . . [H]e did what he was told, which I am not denying either. Obviously Joshua Davenport is older than him and was more running the show." The court sustained an objection by Davenport. In rebuttal, the prosecution again argued no evidence supported Delacruz's claim of duress: "Essentially the defense is hanging their hat on the fact that he [was] 17 years old [at the time of the robbery]."
Posttrial, Davenport moved for a new trial in part on the ground that his case should have been severed from Delacruz's. The prosecutor responded: "[T]here's no reference to Mr. Davenport in Mr. Delacruz's statement. And the jury didn't find duress, or else Mr. Delacruz would have been acquitted. So I don't see how that could have been prejudicial." The court denied the motion.
2. Antagonistic Defenses
We first address Davenport's argument that the trial court erred in failing to sever the cases because the codefendants presented antagonistic defenses. There was no error.
"We begin with section 1098, which states that, 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials.' (Italics added.) Our Legislature has thus 'expressed a preference for joint trials.' [Citation.] Separate trials are permitted in the discretion of the trial court, however, and whether a trial court's denial of a severance motion constitutes an abuse of that discretion is judged on the facts as they appeared at the time the court ruled on the motion." (People v. Hardy (1992) 2 Cal.4th 86, 167.) " 'If the court's joinder ruling was proper when it was made, . . . we may reverse a judgment only on a showing that joinder " 'resulted in "gross unfairness" amounting to a denial of due process.' " ' " (People v. Souza (2012) 54 Cal.4th 90, 109.)
"A trial court's discretion to order separate trials is guided by principles first set down in People v. Massie (1967) 66 Cal.2d 899. Thus, 'The court should separate the trial of codefendants "in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." ' " (People v. Hardy, supra, 2 Cal.4th at p. 167.) " '[A]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.' [Citation.] 'Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' [Citations.] Stated another way, ' "mutual antagonism" only exists where the acceptance of one party's defense will preclude the acquittal of the other.' " (Id. at p. 168.)
Here, Delacruz's defense was that he participated in the robbery under duress, and he argued Davenport's age and criminal history supported that claim. But if Delacruz's statement that he "did what he was told to do" was accepted by the jury, that finding did not compel conviction of Davenport. As the trial court noted, the evidence (as opposed to argument) would have supported a conclusion that the unidentified third man might have been the person who directed Delacruz to participate in the robbery. Thus, the defenses were not inherently irreconcilable, and there was no error. Significantly, Davenport's liability for the offenses did not turn on whether he played a leadership role in the crimes as suggested by the Delacruz statement. The trial court instructed the jury that a defendant could be found liable as an aider or abettor if the defendant knew the perpetrator intended to commit the crime and the defendant intended to and did aid and abet (aid, facilitate, promote, encourage or instigate) commission of the crime through words or conduct. If the jury believed Davenport was the driver who spoke to Tinoco and demanded his money while Delacruz and the third man pointed guns at Beukelman and robbed the U-Haul center, it would necessarily conclude that Davenport perpetrated the robbery of Tinoco and aided and abetted the robbery of Beukelman, regardless of whether he directed or compelled Delacruz to participate in the robbery. Moreover, the armed principal allegation did not turn on whether Davenport played a leadership role—rather the jury needed to determine whether any principal (Davenport, Delacruz, or the third suspect) was armed with a real firearm while committing the crimes.
3. Delacruz Statement
As noted ante, the trial court has discretion to sever properly-joined cases because a codefendant's statement would incriminate the defendant and the codefendant would not be subject to cross-examination. (People v. Hardy, supra, 2 Cal.4th at p. 167 [" 'in the face of an incriminating confession' "].) When the codefendant's statement is testimonial, introduction of the statement may violate the confrontation clause, thus compelling severance. (See People v. Lewis (2008) 43 Cal.4th 415, 453-455 [summarizing Aranda-Bruton rule], disapproved on other grounds by People v. Black (2014) 58 Cal.4th 912, 919-920; People v. Washington (2017) 15 Cal.App.5th 19, 23 [holding scope of Aranda-Bruton rule was narrowed by Crawford v. Washington (2004) 541 U.S. 36].) The People do not argue that Delacruz's statements during a police interview were nontestimonial.
"In Bruton, the United States Supreme Court held that the admission into evidence at a joint trial of a nontestifying codefendant's confession implicating the defendant violates the defendant's right to cross-examination guaranteed by the confrontation clause, even if the jury is instructed to disregard the confession in determining the guilt or innocence of the defendant. (Bruton, supra, 391 U.S. at pp. 127-128, 135-137.) . . . '[T]he risk that the jury will not, or cannot, follow instructions is [too] great' . . . when 'the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.' (Id. at pp. 135-136.) [¶] Three years before Bruton, [the California Supreme Court] had come to a similar conclusion on state law grounds . . . . (Aranda, supra, 63 Cal.2d at pp. 530-531.) . . .
"The high court limited the scope of the Bruton rule in Richardson v. Marsh (1987) 481 U.S. 200 (Richardson). . . . The court explained that Bruton . . . should not apply to confessions that are not incriminating on their face, but become so only when linked with other evidence introduced at trial. (Richardson, supra, at pp. 206-207.) . . . [Specifically,] 'the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.' (Id. at p. 211, italics added.) [¶] . . . [¶] [I]n Gray v. Maryland (1998) 523 U.S. 185 (Gray)[,] . . . [t]he high court concluded that . . . '[r]edactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration . . . leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that . . . the law must require the same result.' (Gray, supra, at p. 192, italics added; see id. at p. 197.) . . . When, despite redaction, the statement 'obviously refer[s] directly to someone, often obviously the defendant, and . . . involve[s] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial' (id. at p. 196, italics added) the Bruton rule applied . . . . (Gray, supra, at pp. 196-197.)" (People v. Lewis, supra, 43 Cal.4th at pp. 453-455; see People v. Fletcher (1996) 13 Cal.4th 451, 468, 469, fn. 5.)
Ordinarily, severance is not required when a nontestifying codefendant's statement implicates an unspecified person who might or might not be the defendant. (People v. Bolden (1996) 44 Cal.App.4th 707, 713-714 [no error where codefendant said he went "with some friends" to arson victim's house carrying explosive devices]; cf. People v. Archer (2000) 82 Cal.App.4th 1380, 1388-1390 [error where codefendant's statement did not name defendant but "unmistakably implicated" him]; see People v. Lewis, supra, 43 Cal.4th at p. 463 [expressly declining to decide whether the reasoning of Archer was correct].) Here, Delacruz's statement that he did what he was told and was scared for his life implicated an unspecified person (who told him what to do and instilled fear in him). As the trial court observed in first denying the motion to sever, other evidence suggested this unspecified person could well have been the unidentified third man rather than Davenport; indeed, the trial court opined that the videorecording of the robbery strongly suggested the unspecified person was the third man rather than Davenport.
In our view, the circumstances here nevertheless fall within the Richardson exception to the Aranda-Bruton rule. Although it cannot be said that Delacruz's statement made no reference to an accomplice as in Richardson, the statement incriminated Davenport only when linked with other evidence introduced at trial. Thus, the jury was less likely ignore the court's instruction to consider the statement only with respect to Delacruz. (See Richardson, supra, 481 U.S. at pp. 206-208.) As to the possession charge, Delacruz's statement only tangentially incriminated Davenport by supporting the prosecutor's suggestion that Davenport gave Delacruz the Colt .41 to use in the robbery, which in turn supported an inference that Davenport possessed the gun at the time of the robbery as charged. This chain of inferences places the statement well within the Richardson rule as to the possession charge. As to the other charges, the damaging inference of Davenport's leadership role, if believed by the jury, did not increase Davenport's criminal liability if the jury otherwise found he participated in those crimes.
Substantial evidence independent of the Delacruz statement incriminated Davenport and supports the verdicts: photographic evidence that Davenport, Alcantara, Delacruz and the third man were in a gun store in Vacaville from 1:45 to 2:25 p.m. on January 5, 2014; photographic evidence and eyewitness testimony by Tinoco that Davenport and Alcantara entered the Vacaville U-Haul store at about 2:45 p.m. the same day to rent a trailer; eyewitness testimony by Tinoco that two men were in Davenport and Alcantara's car during that transaction; eyewitness testimony by Villafuerte that Davenport, Alcantara, Delacruz and another man drove up to the Suisun residence with a U-Haul trailer that afternoon; eyewitness testimony by Villafuerte that Davenport, Delacruz and another man drove away from the Suisun residence in Villafuerte's tan Ford Expedition shortly thereafter; photographic evidence that, shortly after 5:00 p.m. the same day, Delacruz and the third man pointed guns at Beukelman and followed him into the U-Haul center (in addition to the eyewitness testimony by Tinoco and Beukelman about the men's conduct and the presence of Villafuerte's car); and testimony by Villafuerte that her car and "Davenport" were mentioned on a police scanner as possibly involved in a crime that evening and that the three men never returned with her car.
Additional evidence further incriminated Davenport. Beukelman testified that "a black pit bull/lab mix" was in the car during the robbery, dog food was found in Villafuerte's car when it was recovered, dog items were found on the porch of the Suisun residence where the "Josh" vest and holster were located, and a "pit-bull-type" dog was in the room with Davenport when he was arrested at the motel. Davenport also resisted arrest and told Alcantara not to speak to the police as he was being taken into custody, thus suggesting a consciousness of guilt. Meanwhile, Davenport's attack on the reliability of Tinoco's and Beukelman's eyewitness testimony was not very compelling. Although Tinoco did not mention during his 911 call that he had seen the robber earlier in the day, it can be inferred that he mentioned that fact to the police shortly after they reported to the U-Haul center because video footage of that earlier encounter was downloaded and supplied to the police that same night. Abandonment of Villafuerte's vehicle strongly suggested Tinoco's identification of the robbers' vehicle as a tan Ford Expedition like Villafuerte's was accurate, and no other inaccuracies in Tinoco's account were established that cast doubt on the reliability of his recollections.
In sum, even if error, the introduction of the Delacruz statement was harmless. B. Admission of Dan Wesson Revolver
Davenport argues the Dan Wesson revolver should have been excluded from evidence as irrelevant and pursuant to Evidence Code section 352. The trial court admitted the Dan Wesson on the theory that Davenport's possession of this real weapon tended to show he used a real firearm during the robbery. We review a trial court's admission of evidence for abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1008.) There was no error.
1. Factual Background
As noted ante, four days after the robbery, a Dan Wesson .357 revolver was found in a heater vent in the motel room where Davenport was arrested. The following additional evidence was presented regarding discovery of the Dan Wesson.
After the Motel 6 was surrounded and police believed Davenport was in room 235, an officer called the room from the motel lobby and conversed with a man. The officer addressed the other speaker as "Mr. Davenport" and said police had a warrant for his arrest. The speaker never disputed that he was Davenport or that he was wanted by the police. The speaker claimed several other people were in the room, but the officer never heard other voices, never heard the speaker address other people, and no other people were located in the room or arrested. At one point, the officer heard what sounded like porcelain moving as if the speaker were looking into the toilet's water tank. The speaker was concerned about the safety of a dog that was in the room with him, and the officer negotiated to ensure the dog's safe retrieval. While searching room 235 after Davenport's arrest, an officer noticed that a screw was missing from the vent of a wall-mounted heater. Because he knew this was a common place to hide contraband, he pulled back the vent cover and saw a Dan Wesson revolver.
Room 235 was not registered in Davenport's name.
At trial, Tinoco testified that the gun Davenport pointed at him was a semiautomatic handgun and definitely was not a revolver because it did not have a cylinder. When the police showed Tinoco the Dan Wesson in November 2015, he told them it was not the gun Davenport held during the robbery. Beukelman testified that the gun pointed at him by the third man was a silver 1911 semiautomatic handgun. Senf provided expert testimony that the gun held by the third man in the robbery video looked like a 1911 semiautomatic handgun when compared to images of such guns downloaded from the internet. As we discuss post, Senf also provided expert testimony that the gun held by Delacruz in the robbery video was the Colt .41 recovered from the U-Haul trailer at the motel.
2. Procedural Background
In a motion in limine, Davenport requested exclusion of the Dan Wesson revolver on the grounds of relevance and Evidence Code section 352. The prosecutor responded: "I have to prove . . . [Davenport] used a real firearm. . . . [W]hy would someone who has two real firearms in his possession choose to use a fake gun when he's committing this crime? [¶] [T]he . . . purpose for which I would bring it in . . . is essentially access and opportunity." She argued the evidence was not unduly prejudicial assuming the Colt .41 revolver was admitted, which it was. Davenport does not argue on appeal that the Colt .41 should have been excluded from evidence. In the trial court, he argued the prosecution's relevance theory was "utter speculation." The court remarked that Davenport's motion "had some teeth to it" on the relevance issue, but ultimately denied the motion. "I think it's somewhat relevant to the People's argument. I don't think it's particularly prejudicial. . . . [T]here is a gun that is found in a vent in a room that [Davenport] . . . didn't even rent. So I don't find it all that prejudicial . . . ."
The trial court previously had denied a motion to suppress the gun on search and seizure grounds.
The prosecutor also argued that, depending on the course of trial she might contend that Davenport or Delacruz may have held or used the Dan Wesson during the robbery, but she did not ultimately pursue those arguments.
In closing argument, the prosecutor did not contend that Davenport possessed or used the Dan Wesson during the U-Haul robbery. Instead, she argued the evidence demonstrated Davenport possessed two real firearms, the Colt .41 and the Dan Wesson, and that he gave the Colt .41 to Delacruz to use during the robbery. She further argued this evidence supported the inference that Davenport held a real firearm (concededly not the Dan Wesson) while threatening Tinoco because his access to real firearms made it unlikely that he would carry a fake into the volatile situation of a robbery.
3. Analysis
" '[W]hen an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers "substantially outweigh" probative value, the objection must be overruled.' " (People v. Jenkins, supra, 22 Cal.4th at p. 1008.)
"When the specific type of weapon used to commit a [crime] is not known, it may be permissible to admit into evidence weapons found in the defendant's possession sometime after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (People v. Riser (1956) 47 Cal.2d 566, 577 [expressing rule as applicable to homicide cases], overruled on other grounds by People v. Morse (1964) 60 Cal.2d 631, 637 & fn. 2, 639 & fn. 5, 652; see People v. Rinegold (1970) 13 Cal.App.3d 711, 720-721 [holding Riser rule also applies to nonhomicide crimes].) The exclusionary aspect of the Riser rule applies only when the defendant's possession of another weapons has no relevance to the case except to show a propensity to commit the crime.
People v. Smith (2003) 30 Cal.4th 581 endorses a theory of relevance that is particularly instructive in this appeal. The Smith defendant was charged with raping and fatally shooting a woman, using a small semiautomatic pistol. (Id. at p. 596.) At trial, the defendant testified that the shooting was accidental, he intended to intimidate but not kill the victim, and he chose a weapon that was small and easy to conceal. (Id. at pp. 598, 613-614.) During a search of the defendant's home after the crimes, police found a derringer and ammunition that fit neither the derringer nor the murder weapon. The court held this evidence was relevant and admissible because "[e]vidence that [the defendant] possessed another small, easily concealed but unloaded gun and no ammunition that fit it, and that he chose instead to take a loaded gun, was relevant to defendant's credibility" regarding his testimony that he chose a small gun to intimidate but not shoot the victim. (Id. at p. 614.)
Here, to establish the firearm elements of the assaults (§ 245, subd. (a)(2) ["assault . . . with a firearm"]), the firearm possession charges (§ 29800, subd. (a)(1) ["has in possession . . . any firearm"]) and the firearm enhancements (§§ 12022, subd. (a)(1), ["armed with a firearm"], 12022.5, subd. (a) ["personally use[] a firearm"], 12022.53, subd. (b) [same]), the prosecutor had to prove that each relevant firearm was real. (See In re Jose A. (1992) 5 Cal.App.4th 697, 700-701 [ordinary meaning of "firearm" applies to § 245, thus excluding pellet gun]; §§ 16520, subd. (a) ["firearm" is "a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion"], 12001 [same]; People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 [a toy gun, pellet gun or BB gun is not a "firearm" per former § 12001, subd. (b), which was the same definition as in current § 16520, subd. (a)].)
As in People v. Smith, supra, 30 Cal.4th 581, evidence of Davenport's possession of a real handgun a few days after the charged crimes (and inferably also at the time of the charged crimes) was relevant to prove that the handgun he used during the robbery was also a real gun: the jury could reasonably find that someone who possessed a real gun would not opt to carry a fake gun while committing a robbery. Prosecutors may rely on such common-sense inferences to prove that a weapon used during a robbery was a real firearm. (See People v. Monjaras, supra, 164 Cal.App.4th at p. 1437 [while conceivable the pistol tucked into defendant's waistband was a toy, "the jury was entitled to . . . infer from his conduct that [it] was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand"].)
The court did not err in admitting the Dan Wesson revolver. C. Expert Opinion Testimony Regarding the Colt .41 Revolver
In the robbery video, Delacruz can be seen pointing a gun at Beukelman's back. Senf provided expert testimony that this gun was identical to the Colt .41 recovered from the U-Haul trailer at the motel. Davenport argues admission of Senf's expert testimony was error because Senf was not properly qualified as an expert, he failed to disclose the basis of his expert opinion, and his testimony improperly invaded the factfinding province of the jury. The People argue Davenport's claims are forfeited and meritless and contend any error was nonprejudicial. We conclude the challenge to the failure to disclose basis of the expert opinion is forfeited, and his expert opinion was properly admitted.
We review the admission of expert testimony for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1222.)
1. Background
Senf testified at a preliminary hearing that Delacruz's gun in the robbery video was the Dan Wesson revolver that was recovered from the motel room. By the time of trial, he had changed his mind and he testified he believed it to be the Colt .41 recovered from the trailer at the motel.
At trial, Senf testified that he had experience with firearms while serving in the U.S. Army and during his 15 years working as a police officer; he "qualif[ied] for handguns" two to three times a year; he would "shoot" three to five times a year; he regularly seized, identified, and manipulated handguns while investigating crimes; and he had been trained on how revolvers and semiautomatic handguns operated and how to break them down, clean, and reassemble them. During voir dire examination, he acknowledged he not previously testified as a firearms expert or provided an expert opinion on whether a particular gun was used in a particular crime. The court denied objections to Senf's qualifications.
Senf testified that he compared the characteristics of the gun held by Delacruz in the robbery video with those of the seized handguns—the relative sizes of the ejector rods and barrels, shapes and sizes of trigger guards, frames showing through the bottom grips, and breaks in the barrels—and the Colt .41 matched but the Dan Wesson .357 did not. Senf found no inconsistent characteristics between Delacruz's gun in the video and the Colt .41 seized from the U-Haul trailer. Senf acknowledged that he could not determine from the video alone whether the gun was real or fake. His opinion that the weapon in the video was a real Colt .41 caliber revolver, however, was based not only on the visual comparison, but also upon the totality of case circumstances: "Having the entire investigation[,] . . . then I see the event, and then I recover a .41 caliber, and I'm actually able to compare it to the video, it's apparent that the characteristics of this gun match very well with this gun here." He opined that the .41 caliber of the gun was a "fairly unique caliber."
The prosecutor argued in closing that Davenport was guilty of being a felon in possession of the Colt .41 on January 5, 2014. In support of that conclusion, she cited seizure of the holster that fit the Colt .41 at the Suisun residence on January 6, the Colt .41's absence from the Suisun residence and U-Haul trailer during the January 6 search, and discovery of the gun, together with men's cologne, in a backpack in the U-Haul trailer at the motel on January 9. She argued Delacruz's use of the Colt .41 during the robbery showed that Davenport possessed the gun on that date and had given it to Delacruz to use. Davenport argued the evidence of possession was insufficient: he was not present at the Suisun residence when the holster was found, the trailer was rented to Alcantara not him, the backpack containing the gun also contained checks belonging to Alcantara, and there was no evidence the trailer contained any other property of Davenport's. The jury found Davenport guilty of being a felon in possession of a firearm.
The prosecution made an election to pursue to Colt .41 as the basis for the felon in possession charge, and the jury was so instructed.
2. Forfeiture
Objections to the admission of evidence at a criminal trial are forfeited unless the defendant raised a timely and specific objection at trial. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 433-435.)
When the prosecutor asked Senf if he had formed an opinion about whether the gun seen in the video was the Dan Wesson or Colt .41 revolver seized in the case, Delacruz's counsel objected that the prosecutor was soliciting an expert opinion and Senf had not been qualified as an expert. Davenport objected that the proffered testimony invaded the province of the jury. The court denied Davenport's objection, saying, "No. It is ultimately their decision to decide, . . . [b]ut . . . the People can introduce either a lay opinion or an expert opinion as to both of those issues." The prosecutor then elicited testimony about Senf's expert qualifications, Delacruz's counsel voir dired him on those qualifications, Davenport deferred to Delacruz's counsel, and the court found Senf qualified as a firearms expert.
Davenport's objection preserved his contention that Senf was not qualified as an expert and that the admission of Senf's testimony invaded the province of the jury. By failing to argue in the trial court that Senf failed to disclose the basis of his opinion (other than his expert qualifications), Davenport forfeited that argument and we do not address it. We discuss the preserved claims jointly.
3. Propriety of the Expert Testimony
"Evidence Code section 720 provides that a person may testify as an expert 'if he has special knowledge, skill, experience, training, or education sufficient to qualify him,' (id., subd. (a)) which 'may be shown by any otherwise admissible evidence, including his own testimony.' (Id., subd. (b).) The trial court's determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. [Citation.] ' "Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." ' " (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) "[A]n expert's qualifications 'must be related to the particular subject upon which he is giving expert testimony. Qualifications on related subject matter are insufficient.' " (People v. Chavez (1985) 39 Cal.3d 823, 828.)
"[A]lthough ordinarily courts should not admit expert opinion testimony on topics so common that persons of ' "ordinary education could reach a conclusion as intelligently as the witness" ' [citation], experts may testify even when jurors are not 'wholly ignorant' about the subject of the testimony. [Citation.] '[I]f that [total ignorance] were the test, little expert opinion testimony would ever be heard.' [Citation.] [¶] Rather, the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury. (Evid. Code, § 801, subd. (a), [citation].)" (People v. Prince, supra, 40 Cal.4th at p. 1222.) The Prince court upheld the admission of expert testimony that the unusual manner of stabbing in six murders indicated they were committed by the same person. "Notwithstanding the ability of jurors to review the evidence before them and draw commonsense inferences, it may aid them to learn from a person with extensive training in crime scene analysis, who has examined not only the evidence in the particular case but has in mind his or her experience in analyzing hundreds of other cases, whether certain features that appear in all the charged crimes are comparatively rare, and therefore suggest in the expert's opinion that the crimes were committed by the same person." (Id. at p. 1223.)
Davenport argues Senf's opinion that the gun in the video was a Colt .41 invaded the province of the jury because that determination required no expertise but only a common-sense visual comparison. We disagree. The court impliedly found that Senf's training and experience with firearms exceeded the common experience of lay people. Davenport complains that Senf did not establish expertise specifically with respect to Colt .41s or identifying weapons from video or photographic evidence. However, if the expert has established some superior knowledge to the layperson's, " ' "the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." ' " (People v. Bolin, supra, 18 Cal.4th at p. 322.) Here, the trial court reasonably concluded that the jury would be assisted by Senf's testimony, based on his above-average experience with firearms, identifying distinguishing features of the revolver seen in the video, revolvers generally, and the revolvers in evidence. The defense presented a contrary expert opinion.
As the trial court correctly stated, the ultimate determination was for the jury to make. But while an expert may not opine on a defendant's guilt, " '[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.' " (People v. Leonard (2014) 228 Cal.App.4th 465, 493.) The jury here was properly instructed that they were not required to accept an expert opinion as true, and that the meaning and importance of any opinion was for the jury to decide. The jurors were told they could disregard any opinion they found unbelievable, unreasonable or unsupported by the evidence.
Moreover, Senf's expert opinion was not the only basis to establish the firearm possession charge. The actual weapon was found in a backpack in the U-Haul trailer rented by Davenport and Alcantara, in a backpack with men's cologne, parked at the location where Davenport was arrested. The gun fit a holster found at the Suisun residence, where Davenport's indicia was also found. There was no error, and we would in any event find any error harmless.
See People v. Partida, supra, 37 Cal.4th at p. 439 (prejudice caused by the improper admission of evidence judged under reasonable probability standard of People v. Watson (1956) 46 Cal.2d 818, 836). --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.