Opinion
F075650
11-26-2018
THE PEOPLE, Plaintiff and Respondent, v. GARY LYNN MAINARD, Defendant and Appellant.
Kenneth M. Foley for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF48835)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Kenneth M. Foley for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
INTRODUCTION
Appellant Gary Lynn Mainard stands convicted of carrying a dirk or dagger, misdemeanor evading a peace officer, and misdemeanor possession of a controlled substance. Mainard contends the trial court erred in: (1) instructing the jury; and (2) in allowing a prior conviction to be used for impeachment purposes. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Mainard was charged with a felony violation of Penal Code section 21310, carrying a concealed dirk or dagger; a misdemeanor violation of Vehicle Code section 2800.1, subdivision (a), evading a peace officer; a misdemeanor violation of Health and Safety Code section 11377, subdivision (a), possession of a controlled substance; and with an infraction for violating Health and Safety Code section 11357, subdivision (b), possession of less than 28.5 grams of marijuana.
References to code sections are to the Penal Code unless otherwise specified.
Tuolumne County Sheriff's Deputy Jeremy Green testified at trial that he was on patrol in a marked vehicle the night of December 2, 2015, on a road near a casino when he pulled behind a white vehicle that was traveling 52 miles per hour in a 45-mile-per-hour zone. Green activated the patrol car's overhead lights to effect a traffic stop. The white vehicle did not stop but continued traveling. Green activated the patrol car's siren, sounded the air horn several times, and shined his spotlight at the white vehicle. Green notified dispatch "there's a failure to yield."
The white vehicle eventually stopped 1.3 miles from where Green initially activated his overhead lights. Green called for backup and waited in his patrol car for another deputy to arrive. The driver of the white vehicle, identified as Mainard, leaned out of his vehicle and yelled, "Are you coming up here or what?" Mainard then opened his car door and stepped out; his hands were in plain view. Mainard walked toward Green's patrol car.
Because Mainard had failed to yield, Green immediately placed him in handcuffs. After detaining Mainard, Green did a "pat search." During the pat search, Green found "a dagger that was in a leather sheath attached to his belt on the sheath, and the bottom of the sheath was tucked into his back, right rear pocket." The dagger also was covered by the T-shirt and jacket Mainard was wearing. The blade on the dagger was "at least 3 inches or more" and had a sharp edge.
Another deputy arrived and directed Green's attention to the inside of Mainard's vehicle. There was a "white crystallin substance" Green believed to be methamphetamine on the driver's seat. It was later confirmed the substance was methamphetamine.
Mainard testified at trial. He did not believe Green was attempting to pull him over because he was driving at the posted speed limit. When Green remained in pursuit of him, he pulled over. Mainard denied that the sheath and dagger were in his back pocket. He testified, "I don't know how it could be in my rear pocket on my belt. My belt only goes this far." Mainard was wearing the same jacket during the trial that he had worn the night of his arrest. Defense counsel had Mainard place the sheath on his belt and demonstrate that the sheath was visible when wearing the jacket, when the sheath was hanging from a belt and not inside a pocket.
Mainard explained he was a truck driver and mechanic and the dagger, or knife, was "a tool." Mainard generally wore a knife every day. Mainard testified he had not used methamphetamine for "20 years." He had "no clue" there was methamphetamine in his vehicle. Mainard acknowledged he was convicted of a felony, a "moral turpitude offense," in 1996.
On March 3, 2017, the jury found Mainard guilty of carrying a concealed dirk or dagger, evading an officer, and possession of a controlled substance. The possession of marijuana count was dismissed.
On April 17, 2017, the trial court suspended imposition of sentence and ordered Mainard admitted to probation for a period of five years, subject to various terms and conditions. On May 12, 2017, Mainard filed a notice of appeal.
DISCUSSION
I. No Instructional Error
Mainard raises two instructional issues. First, he objected at trial to the giving of the standard instruction on carrying a concealed dirk or dagger, CALCRIM No. 2501. He contends it was error for the trial court to use the standard instruction. Second, he contends the trial court erred when it refused to instruct the jury with CALCRIM No. 3406 on mistake of fact.
Mainard contends his conviction for violating section 21310 "was the result of the [trial] court's improper completion of the intent instruction and the court's denial of allowing [him] to introduce [CALCRIM No.] 3406 which would have told the jury that even if [his] knife was concealed at the time the officer saw it, if [he] had reasonable cause to believe the knife was not concealed," he should not have been found guilty.
CALCRIM No. 2501
Over Mainard's objection, the jury was instructed with CALCRIM No. 2501. Defense counsel objected that the standard instruction did not adequately instruct on the knowledge element of the offense. As given to the jury, CALCRIM No. 2501 stated:
"The defendant is charged in Count 1 with unlawfully carrying a concealed dirk or dagger in violation of Penal Code section 21310. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant carried on his person a dirk or dagger; [¶] 2. The defendant knew that he was carrying it; [¶] 3. It was substantially concealed on the defendant's person; [¶] AND 4. The defendant knew that it could readily be used as a stabbing weapon. [¶] The People do not have to prove that the defendant used or intended to use the alleged dirk or dagger as a weapon. [¶] A dirk or dagger is a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm. [¶] A knife carried in a sheath and worn openly suspended from the waist of the wearer is not concealed."
Mainard seems to contend that CALCRIM No. 2501 does not accurately set forth the intent requirement for the offense of carrying a concealed dirk or dagger, in that it does not cover the circumstance where a person is carrying a dirk or dagger but does not know it is concealed. In other words, Mainard believes the instruction is incorrect because it should state "he had knowledge it was concealed."
We note initially that Mainard has not cited any case holding that CALCRIM No. 2501 fails to adequately instruct on the offense of carrying a concealed dirk or dagger. A trial court risks injecting inappropriate terms or concepts into the instructions, or confusing the jurors, when it seeks to modify or amplify the standard instructions. (People v. Noguera (1992) 4 Cal.4th 599, 642.)
The jury was instructed that for Mainard to violate the statute, he must have known he was carrying a dirk or dagger, and the dirk or dagger must have been substantially concealed. If one knows the dirk or dagger is concealed on his person, he must have intended to conceal it, even if the dirk or dagger was concealed for an innocent purpose. (See, e.g., People v. Rubalcava (2000) 23 Cal.4th 322, 330-331 (Rubalcava) [addressing former § 12020].)
For example, if a person puts a dirk or dagger in his sock to free his hands to carry packages when there are no pockets available, and then covers the sock with his pants, this person has knowingly and intentionally concealed the weapon. (Rubalcava, supra, 23 Cal.4th at pp. 331-332.) Similarly, if Mainard knew he was carrying a dagger in a sheath; that the sheath was tucked into the rear pocket of his pants; and his shirt and jacket were not tucked into his pants but hung down and could hide the portion of the dagger and sheath visible outside the pocket, he knowingly and intentionally concealed the dagger.
Specific intent to conceal the dirk or dagger from onlookers is not an element of the offense; the offense is one of general intent. (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1380 (Mitchell).) "The trial court is generally not required to instruct sua sponte on accident given that the mental state instructions adequately convey to the jury the required mental elements." (Id. at p. 1381.) "Because the offense does not include a requirement of specific intent to conceal the instrument from other persons, the trial court had no duty to instruct on this element." (Ibid.)
The jury here was adequately instructed on the mental state required for the offense of carrying a concealed dirk or dagger because the trial court gave CALCRIM No. 2501, carrying a concealed dirk or dagger; CALCRIM No. 251, union of act and intent: specific intent or mental state; and CALCRIM No. 225, circumstantial evidence: intent or mental state.
Mainard has not provided any authority that holds CALCRIM No. 2501 fails to correctly instruct on the elements of the offense of carrying a concealed dirk or dagger. The trial court did not err in instructing the jury with CALCRIM No. 2501.
CALCRIM No. 3406
Defense counsel requested the jury be instructed with CALCRIM No. 3406, mistake of fact, because if Mainard did not know his jacket was covering the dagger in his pocket, his conduct was not "illegal." The trial court responded that this is "not your client's position. Your client's position [is that] it was not in his pocket, it was completely outside and on his waist attached to a belt[.]" Defense counsel agreed with the trial court's statement but went on to argue that if the dagger "accidentally slips into the pocket and he doesn't know it," then that was "not a criminal act." The trial court responded that the "evidence doesn't support that. Your client said it was not in his pocket, it was completely exposed on his hip." The trial court declined to give the instruction.
"Even absent a request, the trial court must instruct on the general principles of law applicable to the case. [Citation.] The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case." (People v. Young (2005) 34 Cal.4th 1149, 1200.) "[T]his duty ... extends to defenses 'if it appears ... the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (People v. Brooks (2017) 3 Cal.5th 1, 73.)
As we noted, there is no requirement under section 21310 that Mainard have specifically intended to conceal the dagger; the requirement is a general intent requirement. (Mitchell, supra, 209 Cal.App.4th at p. 1380.) The Mitchell court stated, "The offense is established if the prosecution proves that the defendant intentionally and knowingly committed the proscribed act of carrying a concealed dirk or dagger, and no further proof concerning intent is required. Because the offense does not include a requirement of specific intent to conceal the instrument from other persons, the trial court had no duty to instruct on this element." (Id. at p. 1381.)
A mistake of fact instruction goes to the mental state required for the offense. (See People v. Lawson (2013) 215 Cal.App.4th 108, 117.) The jury here was adequately instructed on the mental state required for the offense of carrying a concealed dirk or dagger. The trial court gave CALCRIM No. 2501, carrying a concealed dirk or dagger; CALCRIM No. 251, union of act and intent: specific intent or mental state; and CALCRIM No. 225, circumstantial evidence: intent or mental state. The mistake of fact instruction, CALCRIM No. 3601, was not necessary to explain the mental state required for the section 21310 offense.
Moreover, it does not appear that mistake of fact was a defense that Mainard was relying upon at trial. During the trial, Mainard testified the dagger, or knife, and sheath were not in his back pocket, but hanging off his belt on his hip. There was no testimony that the sheathed knife accidently came to be in his back pocket. Mainard testified, "I don't know how it could be in my rear pocket on my belt. My belt only goes this far." Thus, there was no substantial evidence to support a mistake of fact instruction and Mainard did not rely upon mistake of fact as a defense during trial. Consequently, the trial court properly denied a mistake of fact instruction. (People v. Brooks, supra, 3 Cal.5th at p. 73.)
Lastly, any error in failing to instruct on the mistake of fact defense is subject to review under the People v. Watson (1956) 46 Cal.2d 818, 836, harmless error standard. (People v. Hanna (2013) 218 Cal.App.4th 455, 462.) Under this standard, reversal of a conviction is warranted only if it is reasonably probable the defendant would have obtained a more favorable outcome had the instruction been given. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Mainard would not have obtained a more favorable outcome if the mistake of fact instruction had been given. The jury was properly instructed on the elements of the section 21310 offense; the offense does not require a specific intent to conceal the dirk or dagger; and Mainard did not testify, or present any other evidence, that the dagger was mistakenly concealed in his back pocket. Mainard testified the sheathed knife was not in his back pocket, but hanging loose from his belt, and visible while wearing his jacket. The officer who arrested Mainard testified the dagger was in a leather sheath attached to Mainard's belt, with the "bottom" of the sheathed dagger "tucked into [Mainard's] back, right rear pocket."
In this case, the jury found Mainard guilty beyond a reasonable doubt of the section 21310 offense. To return a guilty verdict, the jury had to find he harbored the requisite mental state for the offense. Accordingly, the jury necessarily rejected the factual predicate of any mistake of fact that would have been presented by the instruction. (See People v. Wright (2006) 40 Cal.4th 81, 99.)
II. Prior Felony Impeachment
The trial court ruled that Mainard's 1996 conviction for possession of a controlled substance, a violation of Health and Safety Code section 11378, could only be referred to as a 1996 felony conviction involving moral turpitude. Mainard does not contest that the prior conviction was a conviction of moral turpitude but argues the trial court committed prejudicial error in allowing the prior conviction to be used by the prosecution because the conviction was twenty years old. A trial court's ruling on the use of a prior conviction for impeachment purposes is reviewed for abuse of discretion. (People v. Anderson (2018) 5 Cal.5th 372, 407.)
The California Constitution permits the use of a prior felony conviction involving moral turpitude for impeachment in a criminal proceeding. (Cal. Const., art. I, § 28, subd. (f); Evid. Code, § 788; People v. Watson (2008) 43 Cal.4th 652, 685.)
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.]
" '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.' [Citations.] When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, [and, where the witness is the defendant,] whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify....
"Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (People v. Clark (2011) 52 Cal.4th 856, 931-932, fn. omitted.)
"[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Green (1995) 34 Cal.App.4th 165, 182-183 (Green).) " 'When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.' " (People v. Goldman (2014) 225 Cal.App.4th 950, 959.)
The governing rule is that " 'a court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352.' " (People v. Doolin (2009) 45 Cal.4th 390, 438.) Here, the trial court conducted an Evidence Code section 352 hearing on the admissibility of the prior conviction; determined the conviction would be sanitized; and as sanitized, determined its probative value outweighed its prejudicial effect.
It is well established that "convictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior." (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) In addition to the 1996 felony conviction, Mainard suffered a felony conviction in 1995 and misdemeanor convictions in 1991, 2007, and 2011. Mainard had not avoided criminal activity, or remained free of criminal convictions, in the years between his 1996 felony conviction and his current offenses committed in 2015. Because Mainard did not lead a blameless life following his 1996 conviction, the trial court reasonably could permit the 1996 conviction to be used for impeachment, despite any remoteness in time. (Ibid.; Green, supra, 34 Cal.App.4th at p. 183.)
Regarding Mainard's claim that use of the 1996 conviction to impeach caused the jury to view his testimony differently, we note the prosecution did not question Mainard about the prior conviction or reference it in cross-examining him. In fact, during the discussion on the admissibility of the prior conviction, the prosecutor stated, "If the court wants me to I can ask if he has a felony conviction for moral turpitude. I can do that. But I don't think it's necessary in this case." The only reference to the prior conviction was by defense counsel on direct examination of Mainard.
The trial court instructed the jury on the limited use of the prior felony conviction, which included the statement that "[t]he fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." We presume the jury understood and followed the limiting instruction. (People v. Clark (2016) 63 Cal.4th 522, 573.)
Under the circumstances, the trial court's ruling on the admissibility of the sanitized 1996 felony conviction was not an abuse of discretion. (Green, supra, 34 Cal.App.4th at pp. 182-183.)
DISPOSITION
The judgment is affirmed.