Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F05336
BUTZ, J.After a jury trial, defendant Andrei Ivaschenko was convicted of (1) possession of a firearm, within 10 years of a prior conviction of battery (Pen. Code, § 12021, subd. (c)(1)), (2) carrying in public a loaded concealable firearm not registered and owned by the bearer (Pen. Code, § 12031, subd. (a)(2)(F) [hereafter section 12031(a)(2)(F)]), (3) driving while under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and (4) driving when he had a blood alcohol percentage higher than 0.08 (Veh. Code, § 23152, subd. (b)). In a separate trial, the court found true enhancement allegations that defendant had two prior convictions within 10 years of driving under the influence of alcohol. (Veh. Code, § 23546.) He appeals from the order of five years of informal probation granted on the condition, inter alia, that he serve 300 days in the county jail and have his driver’s license revoked for three years.
Defendant contends that the trial court erred: (1) in refusing to give a requested defense instruction on lack of mens rea, (2) in permitting him to be convicted of carrying a loaded firearm in the absence of substantial evidence of guilt of that offense, and (3) in permitting him to be convicted of carrying in public a concealable loaded firearm he did not own, in the absence of substantial evidence that the firearm, a rifle, was concealable. Finding merit only in the lattermost contention, we shall reduce that conviction to the included misdemeanor of carrying a loaded firearm in public and, as modified, affirm the judgment (order of informal probation).
FACTUAL AND PROCEDURAL BACKGROUND
Deputy Sheriff David Leon was driving southbound on 32nd Street about 4:30 a.m. on June 17, 2006. He saw a Mitsubishi sports utility vehicle (SUV) traveling toward him with its hazard lights blinking. As the two vehicles approached each other the SUV made a right turn into a private driveway, about 70 yards from where the deputy had first seen it, and stopped. The deputy stopped behind the SUV and illuminated the scene with a light bar on his patrol car. Defendant got out of the driver’s side of the SUV and walked up to him. The deputy inferred defendant was intoxicated based on his gait (he staggered), his red watery eyes, the smell of alcohol on his breath, and defendant’s admission that he had been drinking vodka.
Deputy Leon detained defendant in his patrol car. Pursuant to an interagency memorandum the deputy summoned California Highway Patrol (CHP) officers to continue the investigation.
CHP Officers Norm Chavez and Tim Kittredge arrived at the scene about 4:45 a.m. that morning. Officer Chavez observed that defendant displayed objective symptoms commonly associated with alcohol impairment. Officer Kittredge asked defendant where he was coming from. Defendant inquired in reply, “What does that matter?” The officer said he would like to have defendant’s cooperation in his investigation and to conduct some field sobriety tests. Defendant replied that he was not driving and was not going to do any tests. The officer arrested him for driving under the influence of alcohol. A subsequent breath test showed that defendant had had 0.20 percent of alcohol in his blood at 4:30 a.m.
After the arrest Officer Chavez searched the SUV. On the console between the driver’s and front passenger seats, near the gear shift, was an upside down baseball cap. Sitting in the cap, openly visible from outside the vehicle, was an unloaded .38-caliber handgun. Behind the driver’s seat was a loaded rifle with its muzzle on the floor and the stock end pointed toward the left rear door. On the floor on the left rear side was a shoe box of ammunition, approximately fifty .22-caliber bullets, two rifle bullets, and some shotgun shells. There were two .22-caliber bullets sitting on the driver’s seat. Defendant stipulated that he had previously been convicted of a misdemeanor and that the conviction prohibits him from possession of firearms. The keys for the car were found under the front passenger seat.
Defendant’s brother, Viktor Ivaschenko, testified for the defense, as follows. He had borrowed defendant’s vehicle, the SUV, to go camping, a few days before the incident in question. The rifle and the pistol found in the SUV were his. He took them on the camping trip. When he unloaded the car after the camping trip, he left the weapons in the car, planning to move them later. Defendant came to his house to recover the SUV on the night of the arrest and Viktor gave the key to defendant’s wife. He forgot about the weapons and did not mention them to her or his brother. When he was questioned by a defense investigator, he had said the weapons were in the trunk or hatchback portion of the car. At trial he said he later moved them to where they were found and covered them with a piece of fabric and a blanket, respectively.
Defendant’s wife, Irina Ivaschenko, testified for the defense as follows. She went with defendant to the home of his brother around 11:00 p.m. on Friday, June 16, 2006, the night prior to defendant’s early morning arrest. They went to recover their SUV, which defendant’s brother had borrowed. They had sort of a party and her husband drank quite a lot of alcohol. They left his brother’s house about 2:00 or 2:30 a.m. on June 17 and, as defendant was drunk, she drove. She was very tired and did not notice any guns. The SUV was shaking and about halfway home she stopped because it was overheating. After it cooled down, she called a friend who has a tow truck. It just so happened, randomly, that when she stopped it was near the home of friends of her husband. They helped push the car off the street into a driveway. She called another friend for a ride home and left her husband with the SUV to await the tow truck. She hid the keys under the passenger seat.
DISCUSSION
I
Defendant contends that the trial court erred prejudicially in refusing to give a requested defense instruction on lack of mens rea. He requested the following instruction: “A person who commits a prohibited act through misfortune or by accident when it appears there was no evil design, intention or culpable negligence has not committed a crime.” He argues that under People v. Jeffers (1996) 41 Cal.App.4th 917, 922 (Jeffers), it was prejudicial error to fail to give the instruction. The argument is unpersuasive and the contention of error is without merit.
In Jeffers the defendant was convicted of possession of a handgun by a felon. He had delivered a box containing a handgun to a gunsmith and started to walk out the door. The gunsmith required information to enter the gun into the log and the defendant provided his identity and left. (Jeffers, supra, 41 Cal.App.4th at p. 919.) On appeal he alleged instructional error (1) in failing to instruct regarding the required criminal intent (CALJIC No. 3.30) and (2) refusal of a defense instruction that: “‘When an ex-felon comes into possession of a firearm, without knowing that he has a firearm, and he later learns that he has a firearm, he does not automatically violate Penal Code section 12021[, subdivision] (a) upon acquiring knowledge. [¶] The ex-felon violates the law only if he continues to possess the firearm for an unreasonable time, without taking steps to rid himself of the firearm.’” (Jeffers, at pp. 920-921.)
The Jeffers opinion concluded that the combination of failure to give a general intent instruction and refusing any instruction along the lines pointed to by the requested instruction was prejudicial error in the circumstances of that case, reasoning as follows: “Wrongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. (People v. Snyder [(1982)] 32 Cal.3d [590,] 598.) A person who commits a prohibited act ‘through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence’ has not committed a crime. ([Pen. Code,] § 26.) Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent. [¶] . . . [¶] The failure to read the [general intent] instruction was not harmless. Defendant’s theory was that the prosecution failed to prove a joint union of possession and intent, i.e., a knowing, intentional exercise of control over the gun. The general intent instruction was critical to the jury’s understanding of the defense.” (Jeffers, supra, 41 Cal.App.4th at pp. 922-923.)
While the defendant’s requested instruction was flawed as to elements of time and reasonableness of possession, which are not legally required for conviction, “it was a reasonable attempt to articulate a valid legal principle supported by the evidence.” (Jeffers, supra,41 Cal.App.4th at p. 925.) It focused on “the defendant’s conduct and what that conduct suggests with regard to his intent to exercise dominion and control over the gun. If the jury believed he did not know or have reason to suspect he was delivering a gun until he arrived at the gun shop, evidence he took immediate steps to relinquish possession supports his claim that he did not intend to exercise control over the weapon, i.e., his temporary possession was unintentional.” (Id. at p. 924.) Accordingly, the court erred in failing to give an instruction elaborating this basis for reasonable doubt. (Id. at p. 925.)
However, the Jeffers opinion expressly pointed out that, “[h]ad the jury been instructed properly regarding general intent, we would have confidence this legal principle was considered by the jury in reaching its verdict.” (Jeffers, supra, 41 Cal.App.4th at p. 925.) Thus, failure to give the pinpoint instruction would not have been prejudicial if a proper general intent instruction had been given. (People v. Padilla (2002) 98 Cal.App.4th 127, 135 [the reversible error in Jeffers was the trial court’s failure to instruct on the union of act and general criminal intent].)
We do not have in the record the discussion between court and counsel concerning giving defendant’s requested instruction. It may have been deemed objectionable as misleading. One could discover that he had been placed in proximity to a weapon “accidentally.” However, if he took immediate steps to disavow possession (e.g., by stopping the vehicle, leaving it, and telephoning someone else to remove the weapons), in effect, he would, strictly speaking, not be in possession at all, because he would not have exercised dominion and control. (See, e.g., People v. Prochnau (1967) 251 Cal.App.2d 22, 30 [unlawful possession requires a showing the defendant exercised dominion and control over the object].) On the other hand, if he discovered the guns in the vehicle but continued to drive on, the fact that he had come into possession “accidentally” would be unavailing. (See, e.g., People v. Booker (1978) 77 Cal.App.3d 223, 225 [carrying a revolver through city streets for four blocks, and free to use it, cannot be characterized as momentary].)
Assuming arguendo that some such instruction should have been given, the error was not prejudicial. An erroneous failure to give a requested pinpoint instruction is subject to harmless error analysis. (E.g., People v. Wright (1988) 45 Cal.3d 1126, 1144.) Error in omitting an instruction is harmless when the factual question posed by that instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (See, e.g., People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled in part on a different ground in People v. Blakeley (2000) 23 Cal.4th 82, 89 and People v. Breverman (1998) 19 Cal.4th 142, 163, fn. 10; see also People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
Unlike in Jeffers, in this case the court did instruct, as follows, on general intent: “Every crime in this case requires the proof of the union or joint operation of act and wrongful intent. [¶] In order to be guilty of the crimes charged, a person must not only commit the prohibited act, but must do so intentionally or on purpose. . . . It is not required, however, that the defendant intend to break the law.” Moreover, on the firearm counts, the court instructed that the jury had to find defendant possessed the firearms with knowledge that he possessed them. The court also instructed that the jurors could consider evidence that defendant was voluntarily intoxicated on the issue whether “defendant acted with the knowledge that firearms were present in his vehicle” as to the firearm possession counts.
The factual issue of whether defendant’s possession of the firearms was “accidental” was resolved against him under the mens rea instructions given; e.g., “a person must not only commit the prohibited act, but must do so intentionally or on purpose.” The act here was possession of the firearms with knowledge that he possessed them. If he did this intentionally, he could not have done so “by accident . . . [without] intention.” Accordingly, error, if any, in failing to give the instruction requested by defendant was not prejudicial.
II
Defendant contends that the trial court erred in permitting him to be convicted of carrying a loaded firearm in the absence of substantial evidence of guilt of that offense. He argues that no evidence suggests that he would have necessarily seen the rifle in the back seat of the car. The argument is unpersuasive and the contention of error lacks merit.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Tafoya (2007) 42 Cal.4th 147, 170.) The pertinent inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
It is not necessary that there be direct evidence establishing knowledge of a firearm’s presence; that may be established circumstantially. (See, e.g., People v. Redrick (1961) 55 Cal.2d 282; People v. Harrison (1969) 1 Cal.App.3d 115, 119-120 (Harrison); Annot., Sufficiency of Evidence of Possession in Prosecution Under State Statute Prohibiting Persons Under Indictment for, or Convicted of, Crime from Acquiring, Having, Carrying, or Using Firearms or Weapons (1986) 43 A.L.R.4th 788.) There is strong circumstantial evidence defendant knew the firearms were in the SUV. It is inferable that he attempted to evade a police officer by pulling off the road, hid the keys under the passenger seat, left the vehicle to avoid the officer seeing the weapons, and lied about driving. He was sitting on bullets with a pistol openly sitting next to him by the gear shift. It is reasonable to infer that if he knew of some of the firearms and ammunition that he was also aware of the rifle standing upside down behind his seat.
The jury was free to reject the testimony of defendant’s (interested) witnesses. (See, e.g., Harrison, supra, 1 Cal.App.3d at pp. 119-120.) Their testimony lacks verisimilitude, inter alia, for reasons given in the opening portion of the prosecutor’s closing argument. We conclude that evidence that is reasonable, credible, and of solid value supports the jury’s finding that defendant was aware of the rifle.
III
Defendant contends that the trial court erred in permitting him to be convicted under section 12031(a)(2)(F) of carrying in public a concealable loaded firearm he did not register or own. He argues this conviction is untenable as there is no substantial evidence the only loaded weapon, the rifle, was concealable. The Attorney General concedes the point. We accept the concession.
Penal Code section 12031 provides, in relevant part:
The conviction under section 12031(a)(2)(F) entails a conviction of the included misdemeanor under section 12031(a)(2)(G), as the latter offense has the same elements except for the element that the weapon be concealable. It does not appear likely to us that the error in naming the correct offense influenced the conditions of probation. Therefore, as an alternative to remanding for resentencing, we will modify the conviction of the offense to the lesser included misdemeanor under section 12031(a)(2)(G) and direct that defendant shall have the option of a resentencing hearing upon request. (See generally, e.g., People v. Harvey (1984) 163 Cal.App.3d 90, 108.)
DISPOSITION
The judgment is modified as to the conviction of violating section 12031(a)(2)(F) to reflect conviction rather of the included misdemeanor under section 12031(a)(2)(G), with the direction that, if defendant so moves within 60 days of issuance of the remittitur in this case, the superior court is directed to conduct another sentencing hearing. As modified, the judgment (order of informal probation) is affirmed.
We concur: DAVIS, Acting P. J. HULL, J.
“(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of [an] unincorporated territory.
“(2) Carrying a loaded firearm in violation of this section is punishable, as follows: [¶] . . . [¶]
“(F) Where the person is not listed with the Department of Justice pursuant to Section 11106, as the registered owner of the pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or both that fine and imprisonment.
“(G) In all cases other than those specified in subparagraphs (A) to (F), inclusive, as a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.”