Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF2334, Gary S. Paer, Judge.
Martha M. Hall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
IKOLA, J.
On May 23, 2007, a jury found defendant Francisco Javier Gonzalez guilty of possession of heroin (Health & Saf. Code, § 11350, subd. (a)); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). Immediately following the jury verdicts, defendant admitted he had sustained a prior conviction constituting an enhancement under Penal Code section 667.5, subdivision (b), and a prior strike under Penal Code section 667, subdivision (a).
The jury returned a not guilty verdict on a charge of street terrorism (Pen. Code, § 186.22, subd. (a)) and a “not true” finding on a charged gang enhancement (Pen. Code, § 186.22, subd. (b)). During trial, the People dismissed a charge of possession of a controlled substance with firearm (Health & Saf. Code, § 11370.1, subd. (a)).
Defendant was sentenced to a total prison term of five years, comprised of the mid-term of two years for the possession of a firearm count, doubled because defendant had a strike; a one-year enhancement pursuant to section 667.5, subdivision (b); and two four-year sentences on the drug possession counts (double the mid-term), to run concurrent with his five year sentence.
Defendant asserts the evidence was insufficient to sustain his conviction of possession of a firearm by a felon. He also contends the court improperly instructed the jury with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 362, claiming the only allegedly false statement he made was his denial of the firearm offense, and the instruction thereby allowed the People to use his denial to prove he committed the offense. Finally, defendant argues the court abused its discretion in refusing to dismiss defendant’s prior strike at sentencing. We reject each of defendant’s contentions and affirm the judgment.
FACTS
Shortly after leaving work in the early morning hours of July 24, 2006, eyewitness Rodrigo Palacios observed two males near a 7-Eleven convenience store in Santa Ana, California. Before walking toward the 7-Eleven, one of the individuals, wearing a striped shirt, brandished a handgun and pointed it at the head of the other individual, who was wearing a black shirt with the number 53 on it. Palacios called the police and relayed this information.
Officers Roland Andrade and Daniel Padron arrived simultaneously in separate cars at approximately 1:55 a.m., less than one minute after receiving the dispatch. The officers observed two young, male Hispanic individuals on the sidewalk directly in front of the 7-Eleven; one, wearing a black jersey with the number 53 (later identified as Jose Flores), ran away from the store, while the other, wearing a striped shirt, ran inside the 7-Eleven. The individual in the striped shirt appeared to put something under his shirt before running inside the store. Officer Andrade chased and apprehended Flores within one-and-a-half minutes.
Officer Padron stood in front of the 7-Eleven, observing the chase of Flores and the movement of the other suspect (later identified as the defendant) in the 7-Eleven until Officer Andrade returned to assist in the arrest of defendant. The officers entered the store together and approached defendant, who was standing in the pastry aisle by himself, pacing and looking at the officers. Defendant surrendered to the officers and was handcuffed and searched. Officer Padron discovered usable quantities of heroin and methamphetamine on defendant’s person. Officer Andrade conducted an article search in the 7-Eleven, and found a loaded revolver-style pistol on a shelf, within arm’s reach of where defendant had been standing in the pastry aisle when the officers entered the store.
After waiving his Miranda rights, defendant said he was at the 7-Eleven to buy food, and he ran because he did not want to get arrested with “dope on him.” In response to questioning about the gun found in the pastry aisle, defendant denied knowing anything about it.
Miranda v. Arizona (1966) 384 U.S. 436.
After the parties completed the presentation of evidence, the court proposed to instruct the jury with CALCRIM No. 362, Consciousness of Guilt: False Statements. This jury instruction, as modified by the court to include gender specific and singular references to the lone defendant at trial, stated as follows: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.”
Defendant objected to the proposed use of CALCRIM No. 362, arguing “the statement the district attorney is proposing was a false statement [is] my client denying knowledge or possession of the firearm. It seems to me that his simple denial doesn’t fall within this particular instruction.” “[T]he ultimate issue as to count 3 is whether he was in possession of the firearm or not. It seems to me it creates an inference by this instruction almost misleading the jury that [defendant’s denial of possession] is, in fact, a false statement without them determining whether it is, and whether or not Mr. Gonzalez was in possession of a firearm . . . .” The court overruled the objection, noting its “sua sponte duty to instruct on consciousness of guilt when there is evidence that the defendant made an intentionally false statement,” and further noting the “cautionary language” in the instruction.
Prior to sentencing, defendant moved to dismiss his prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court denied the motion due to the strike’s recent occurrence, defendant’s separate parole violation immediately following his release from prison for grand theft (the strike at issue), and his possession of a handgun while still on parole. The court sentenced defendant to five years in prison, with his sentences for possession (four years each) to run concurrently with his four year sentence for possession of a firearm and one year enhancement for his prior prison term.
Defendant appeals on three grounds: (1) The sufficiency of the evidence to sustain his conviction for possession of a firearm by a felon; (2) the propriety of instructing the jury with CALCRIM No. 362; and (3) the denial of his motion to dismiss his prior strike. We address each of these contentions in turn.
DISCUSSION
Substantial Evidence Supports Defendant’s Conviction of the Firearm Offense
Defendant claims the jury’s verdict finding him guilty of possession of a firearm by a felon is based on insufficient evidence. First, defendant claims the testimony of Palacios was simply too contradictory and unclear to represent substantial evidence of defendant’s actual possession of a firearm. Second, defendant observes the police testimony can only prove a handgun was found in a public place in proximity to where defendant was standing, and cannot establish actual possession or constructive possession through exclusive access.
In evaluating the sufficiency of the evidence, we must review the entire record in the light most favorable to the prosecution, and decide whether there exists substantial evidence from which any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562, 576-577.) Where the evidence of guilt is primarily circumstantial, the standard of review is the same. (People v. Holt (1997) 15 Cal.4th 619, 668.)
The elements of a violation of Penal Code section 12021 are: (1) conviction of a felony and (2) ownership, possession, custody, or control of a firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) “Section 12021 does not require any specific criminal intent; general intent to commit the proscribed act is sufficient. . . . Possession may be either actual or constructive as long as it is intentional.” (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.)
Substantial evidence supports the jury’s verdict. Palacios testified that the individual with the striped shirt, subsequently identified as defendant, possessed a firearm, and he displayed it openly in a manner suggesting his possession was intentional. The jury was entitled to rely on this testimony, notwithstanding Palacios’s initial reluctance to testify and the somewhat confusing responses (apparently caused by translation and/or auditory difficulties) by Palacios to certain questions. Furthermore, the testimony of the two responding officers buttresses the direct testimony of Palacios, and provides circumstantial evidence independent of his testimony that defendant possessed the firearm. The testimony of Palacios and the officers with regard to this issue is the only evidence in the record; nothing contradicts this evidence (beyond defendant’s denial of knowledge concerning the gun during his interrogation) or casts it in a different light. Finally, defendant stipulated to his status as a felon subject to Penal Code section 12021, subdivision (a)(1). Thus, substantial evidence supports each of the elements required for a conviction of possession of a firearm by a felon.
The Jury Was Properly Instructed
Defendant next argues one of the jury instructions, CALCRIM No. 362, was improper. As delivered, this instruction first provided: “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show that he was aware of his guilt of the crime and you may consider it in determining his guilt.” The instruction also included limiting language: “If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance; However, evidence that the defendant made such a statement cannot prove guilt by itself.” Defendant timely and adequately objected to this instruction. In short, defendant argues “the giving of the instruction in the instant case is equivalent to telling the jury that it can infer the defendant’s guilt from his denial of guilt.” This is because, according to defendant, the only alleged “false or misleading statement” by defendant was his denial of knowledge concerning the firearm found in the 7-Eleven.
“[A]s a general rule, false statements made by a defendant at the time of arrest are admissible — not for the truth of the statements — but to show consciousness of guilt.” (People v. Kimble (1988) 44 Cal.3d 480, 496 (Kimble).) In Kimble, the defendant was arrested for murder, burglary, and other crimes. Upon his arrest, he claimed in a tape recorded interrogation he had purchased stereo equipment found at his residence months before the crime and he had never been to the scene of the murders. (Id. at p. 495.) The trial court allowed the prosecution to introduce the defendant’s explanation into evidence, despite the defendant not testifying (the statement was not used to impeach the defendant). The California Supreme Court endorsed the use of such evidence as establishing consciousness of guilt, when it was compared to other evidence establishing the stereo equipment was taken from the store the night of the burglary and defendant’s fingerprints were present at the scene of the murders. (Id. at pp. 495-96.) The Kimble court rejected arguments claiming juries would misuse such statements: “the jury need not believe the prosecution’s evidence suggesting that the statement was false, and even if it finds that the statement was false, it need not conclude that defendant deliberately lied to hide his complicity in the crime.” (Id. at p. 498.)
Defendant does not assert his post arrest statements (admitting he ran from the police because he possessed narcotics, but denying knowledge of the firearm) should have been excluded from evidence. Instead, defendant claims the form jury instruction utilized for such evidence was inappropriate under the particular circumstances of this case, and it raises due process concerns to allow inferences of guilt to arise from a denial. We disagree.
First, trial courts are required to instruct the jury as to the proper use of “consciousness of guilt” evidence. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103-1104 (Edwards).) In Edwards, the defendant argued CALJIC No. 2.03, a nearly identical jury instruction to CALCRIM No. 362, should not have been utilized. The Edwards court rejected defendant’s argument that the instruction placed unfair emphasis on defendant’s statements and testimony. (Id. at pp. 1102-1103.) The Edwards court concluded: “When testimony is properly admitted from which an inference of a consciousness of guilt may be drawn, the court has a duty to instruct on the proper method to analyze the testimony. CALJIC No. 2.03 is a correct statement of the law; that it may single out defendant is not a determinative factor.” (Id. at p. 1104.) Here, the trial court was required under Edwards to provide the jury with guidance as to how to treat defendant’s statement that he knew nothing about the gun. As discussed above, the jury was entitled to find based on the testimony of Palacios and the officers that defendant was aware of the gun and had possession of the gun. Defendant’s statement denying knowledge of the gun therefore bears on defendant’s consciousness of guilt, and CALCRIM No. 362 accurately sets forth the jury’s obligations with regard to weighing defendant’s statement in making its determinations.
“Although there are minor differences between CALJIC No. 2.03 and CALCRIM No. 362 . . ., none is sufficient to undermine our Supreme Court’s approval of the language of these instructions.” (People v. McGowan (2008) 160 Cal.App.4th 1099, 1104.) CALJIC No. 2.03, as given in Edwards, provides: “‘If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider such statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination.’” (Edwards, supra, 8 Cal.App.4th at p. 1101.)
Second, the California Supreme Court has made clear that similar jury instructions relating to consciousness of guilt do not raise constitutional due process concerns. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102 (Coffman).) In Coffman, the defendant challenged CALJIC Nos. 2.04 and 2.06, which relate to attempts to suborn perjury, fabricate evidence, or suppress evidence. (Id. at pp. 101-102.) CALJIC Nos. 2.04 and 2.06 contain identical language to CALJIC No. 2.03 relating to consciousness of guilt, and an identical limiting instruction providing “such conduct is not sufficient in itself to prove guilt.” The Coffman court found because these forms “instructed the jury to infer a consciousness of guilt only if it first found from the evidence that defendants had engaged in the described conduct, and further informed the jury such evidence was not, in itself, sufficient to prove guilt, the instructions properly guided the jury’s consideration of the evidence and did not lessen the prosecution’s burden of proof.” (Id. at p. 102.) Similarly, CALCRIM No. 362 explicitly instructs the jury that a false or misleading statement by a defendant “cannot prove guilt by itself” and that it is up to the jury to decide whether a false statement was made and, if so, the “meaning and importance” of the statement in determining guilt. (See People v. Howard (2008) 42 Cal.4th 1000, 1024-1025 [rejecting constitutional challenge to CALCRIM No. 362].)
CALJIC No. 2.04, as given in Coffman, provides: “‘If you find that a defendant attempted to or did persuade a witness to testify falsely or attempted to or did fabricate evidence to be produced at the trial, such conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your determination.’” (Coffman, supra, 34 Cal.4th at pp. 101-102.)
Finally, even if CALCRIM No. 362 should not have been given under the particular circumstances of this case, such instruction would amount to harmless error. In People v. Williams (2000) 79 Cal.App.4th 1157 (Williams), the defendant challenged the use of CALJIC 2.03 on several grounds, including one of his statements was merely a denial of guilt. The Williams court explained “even if we assume for purposes of argument that the instruction should not be given where the only allegedly false statement is a mere denial of guilt, any error in giving the instruction would be harmless under any standard. The instruction would apply only if the jury found the denial to be false, and this would necessarily mean that the jury accepted the prosecution’s evidence and rejected the defense case. Under such circumstances, the inference of guilt arising from a ‘false’ denial of guilt could add nothing to the jury’s evaluation of the evidence and determination of guilt.” (Williams, at p. 1167, fn. 8.) Likewise, in this case, any presumed error was harmless, as a finding by the jury that defendant lied about his knowledge of the gun necessarily means the jury believed the testimony presented by the prosecution as to his actual possession of the gun.
The Trial Court Did Not Abuse Its Discretion in Refusing to Dismiss a Prior Strike
Finally, defendant submits the trial court abused its discretion in refusing to dismiss defendant’s prior strike at the posttrial sentencing hearing. Defendant points to the challenging environment where he was raised, his young age (he was 21 at the time of the offense), his heroin addiction from the age of 15, and his desire to escape from gang and drug culture. Defendant claims the court focused too narrowly on everything defendant had done wrong, and did not adequately consider mitigating circumstances.
Penal Code section 1385, subdivision (a) states a trial judge “may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” The California Supreme Court has determined “pursuant to Penal Code section 1385(a), a trial court may strike an allegation or vacate a finding under the so-called ‘Three Strikes’ law [citation] that a defendant has previously been convicted of a ‘serious’ and/or ‘violent’ felony as defined therein.” (People v. Williams (1998) 17 Cal.4th 148, 151-152, fn. omitted.) In determining whether to exercise its discretion to do so, a court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes Law] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.)
We review the trial court’s determination not to strike or vacate a prior serious and/or violent felony conviction allegation or finding “under the deferential abuse of discretion standard . . . .” (People v. Carmony (2004) 33 Cal.4th 367, 371.) The trial court did not abuse its discretion. The court reviewed the probation report and all of the evidence submitted by the parties in considering its ruling. The trial court emphasized defendant’s persistent recidivism and the fact defendant was out on parole for the crime that was the basis for the strike when he committed the crimes at issue here. The trial court was aware of its discretion to dismiss the previous strike, the court did not consider any impermissible factors in denying dismissal, and the ultimate result of the sentencing process — a five year sentence for defendant — is not an “‘“arbitrary, capricious, or patently absurd” result’ under the specific facts” of this case. (Carmony, at p. 378.) Thus, the trial court was well within its discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.
CALJIC No. 2.06, as given in Coffman, provides: “‘If you find that a defendant attempted to suppress evidence against himself or herself in any manner, such as by the intimidation of a witness, by destroying evidence [or] by concealing evidence, such attempts may be considered by you as a circumstance tending to show a consciousness of guilt. However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration.’” (Coffman, supra, 34 Cal.4th at p. 102.)