Opinion
C083693
02-07-2018
THE PEOPLE, Plaintiff and Respondent, v. BART PENNINGTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F02897)
A search of the car in which defendant Bart Pennington, a felon, was sitting uncovered methamphetamine and ammunition. A jury found him guilty of possessing methamphetamine as a lesser included offense to possession of methamphetamine for sale, and also of unlawful possession of ammunition by a felon. He was sentenced to three years in state prison for the ammunition offense and three years of informal probation for the drug offense.
Defendant appeals, contending that there is insufficient evidence that he possessed the ammunition found in the car, and that the court erroneously instructed the jury on the element of possession, which not only violated his constitutional right to due process but also resulted in a directed verdict on that charge. We conclude the record contains sufficient evidence of possession and that the trial court properly instructed the jury. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In the early afternoon of May 12, 2015, Sacramento County Probation Officer Carlo Cottengim drove to the trailer of defendant's mother located on Ramada Way in Sacramento. When he arrived, Officer Cottengim observed defendant sitting with his legs dangling out of the back of a Chevy Suburban parked in front of the trailer. Defendant was speaking with approximately four people who were outside the car. After other probation officers arrived, Officer Cottengim contacted, detained, and searched defendant.
The parties stipulated that Officer Cottengim lawfully detained and searched defendant.
Officer Cottengim found a set of car keys in defendant's pocket that contained a key to the Suburban. He also found a small scale with white residue on it inside the pocket, and $239 in cash inside defendant's wallet. After being advised of his Miranda rights, defendant told Officer Cottengim that a friend had given him the Suburban to use to move his property because he had been paying for that friend's storage unit. Defendant claimed that most of the property in the car belonged to him, while some of it belonged to the vehicle owner. The Suburban had Oregon license plates and was registered to Frank Seaglet.
Miranda v. Arizona (1966) 384 U.S. 436 .
Officer Cottengim searched the car and found a box of .22-caliber ammunition on the top of the back wheel well that contained 14 live .22-caliber rounds, and one live .45- caliber round. He also found a box containing .38-caliber ammunition in the vehicle's backseat. That ammunition was found amongst a lot of "random" property.
On the floor between the driver's seat and the backseat, Officer Cottengim found a backpack containing several items of mail addressed to defendant at the Ramada Way residence. The backpack also contained a potato chip can that had a plastic bag with approximately 57.8 grams of methamphetamine in it.
Officer Cottengim found a steel case containing 17.9 grams of methamphetamine attached to the car's bumper. Other assorted mail addressed to defendant, along with a spoon used for ingesting narcotics, a syringe, a lighter, and a methamphetamine pipe were found inside the car.
Defendant was arrested, and in December 2016 defendant was charged with unlawful possession of methamphetamine for sale and unlawful possession of ammunition.
Officer Cottengim testified to the above facts at trial. Based on a hypothetical which tracked these facts, the prosecutor's narcotics expert expressed an opinion that the approximately 75 grams of methamphetamine was possessed for sale. Defendant stipulated that he had sustained a prior felony conviction.
Defendant testified on his own behalf. According to him, at the time of his arrest, he had just moved and was between residences. Since 1999, he stayed with his mother about once a week. Otherwise, he stayed with friends. He used the Ramada Way address as his mailing address.
For the past five years, he had been in the flea market business. He kept the stuff he sold in storage in Sacramento.
Defendant testified that he had been using the Suburban for about a month to six weeks. He did not have a vehicle of his own because he had wrecked the truck his mother had given him for his business. He wrecked that truck less than a year before his arrest.
Defendant received permission to use the Suburban from a female friend, who was not the owner, because he had paid her storage fees. The key to the Suburban that defendant had when arrested belonged to his friend. He did, however, keep his storage keys on the same key ring.
Defendant admitted using the Suburban every day in the two weeks before his arrest to move his property from one storage unit to another. The Suburban had so much stuff in it when he was arrested because he was on the fifth or sixth day of moving his property out of three storage units.
Defendant claimed not all the items found in the Suburban belonged to him. For instance, he claimed that the ammunition found in the car was already there when he received permission to use the vehicle. He testified that he "[p]robably" saw the two boxes of ammunition in the back, and "[m]ay" have moved them. Although his female friend had removed much of the ammunition from the car, he thought there was more. He claimed he did not know it was illegal to have bullets and said he left the ammunition alone because he did not intend to keep the car.
Defendant denied that the ammunition was his. He had not manipulated it, fired it, or done anything to the ammunition when it was in the vehicle. He suggested that people helping him move his stuff might have moved the ammunition. He also said that the people he was with on the day he was arrested were going to help him move.
Defendant claimed he never drove the Suburban because he did not have a driver's license. He was a passenger and about three other people drove the car. Other people also used the car when he was not using it. Sometimes he left the Suburban at a friend's house or at his mother's house, but he knew where it was located. Defendant admitted that on the day of his arrest, the Suburban was in his "control."
During closing, the prosecutor argued that defendant was guilty of unlawful possession of ammunition because he had the right to use the Suburban for an extended period of time, and that he had custody and control of everything in it including the ammunition. Defense counsel argued that the ammunition did not belong to defendant but was left in the Suburban by his friend. Although he used the car and knew the ammunition was in it, defendant did not own the ammunition or use it. Access and proximity to the ammunition, defense counsel argued, did not amount to dominion and control over it, and dominion and control were necessary to establish possession.
The jury sent out four questions during deliberations. The jury first asked to review specific physical evidence relating to the charge of possession of methamphetamine. After discussing the request with counsel, the trial court provided the jury with the physical evidence.
A few hours later, the jury next asked that the trial court, "[e]xplain Sec 2591 custody & control of ammunition." After consulting with counsel, the trial court responded as follows: "Please consider all of the instructions together. Unless you have a more specific inquiry, the court has no further clarification of the terms you question."
The following day, the jury made its third request, asking for a readback of defendant's testimony and the closing statements of both lawyers. The trial court ordered readback of defendant's testimony but not the closing arguments of counsel because the statements did not constitute evidence.
Shortly thereafter, the jury sent a final request asking: "When the defendant took control and custody of the Suburban, did all the contents in the vehicle become under his custody and control under the law." After summoning counsel, the trial court proposed directing the jury to the relevant written instructions already given, and also including an additional explanation by the court.
Defense counsel objected to the proposed response, particularly the additional explanation. In her view, since the jury's fourth request was much like its second question, the court should respond in a similar manner, referring the jury back to the previously given instructions. According to counsel, the jury question asked when defendant took control and custody of the car, was everything in the car under his control and custody? She argued that the court's proposal answers the question incorrectly given the respective positions of the parties.
The prosecutor noted that the second question was simply a general question about custody and control whereas the fourth question was more specific and required additional information. The court's response, the prosecutor argued, was an accurate statement of the law and specifically addressed the jury's fourth question.
After adjusting the language slightly, the trial court responded to the fourth question as follows: "Please consider Instructions 2302, 2304, 2591, 2592, regarding possession, along with all other instructions. [¶] A person can possess an item even if he or she does not own the item. If a person knows of the presence of the item and manipulates or moves the item, either himself or herself or through an instrumentality, that person has control over the item. If a person knows of the presence of an item and has the right to move the item, either himself or herself or through an instrumentality, that person has possession of the item even if he or she does not move or manipulate the item."
A short time later, the jury found defendant not guilty of possessing methamphetamine for sale but guilty of misdemeanor possession of methamphetamine as a lesser included offense to possession for sale. The jury found defendant guilty of unlawful possession of ammunition. The court sentenced defendant to three years in state prison for the ammunition conviction, with credit for time served, and placed him on three years of informal probation for the methamphetamine offense. Defendant timely appealed.
DISCUSSION
I
Sufficient Evidence Supports The Unlawful Possession Of Ammunition Conviction
Defendant contends insufficient evidence shows he possessed the ammunition found in the vehicle. We view the evidence differently than defendant and conclude the jury could have reasonably found, on the evidence presented, that defendant unlawfully possessed the ammunition.
When determining whether there is substantial evidence to support a conviction, we view the record in a light most favorable to the People, resolving all conflicts in the evidence and drawing all reasonable inferences in support of the conviction. (People v. Williams (1971) 5 Cal.3d 211, 214 (Williams I) [" 'The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt' "]; see People v. Campbell (1994) 25 Cal.App.4th 402, 408.) We do not reweigh the evidence or reevaluate witness credibility. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) Furthermore, reversal is not warranted merely because the evidence might also be reasonably reconciled with a contrary finding. (Ibid.; People v. Bean (1988) 46 Cal.3d 919, 932-933.) Instead, "[w]e may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented." (Campbell, at p. 408.)
Penal Code Section 30305 makes it unlawful for anyone previously convicted of a felony to "own, possess, or have under custody or control, any ammunition or reloaded ammunition." (§ 30305, subd. (a)(1).) To find defendant guilty of violating section 30305, the jury had to find defendant knowingly owned, possessed, or had ammunition under his custody or control, and that he had been previously convicted of a felony. (CALCRIM No. 2591 [pattern jury instruction for § 30305].) Defendant stipulated that he had a prior felony conviction and admitted that he was aware of the ammunition in the car. The issue, then, is whether sufficient evidence shows he possessed or had the ammunition under his custody or control.
Further undesignated references are to the Penal Code.
Possession of contraband may be actual or constructive. (People v. Williams (2009) 170 Cal.App.4th 587, 625 (Williams II).) "Actual possession means the object is in the defendant's immediate possession or control. A defendant has actual possession when he himself has the [contraband]." (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) "Constructive possession exists when a defendant 'maintains control or a right to control the contraband.' " (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 538 (Armstrong).) The evidence is sufficient to establish constructive possession when it shows the contraband was "in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or the joint dominion and control of the accused and another." (Williams I, supra, 5 Cal.3d at p. 215; see Williams II, at p. 625 [" 'Conviction is not precluded . . . if the defendant's right to exercise dominion and control over the place where the contraband was located is shared with another' "].)
"The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence." (Williams I, supra, 5 Cal.3d at p. 215.) In this case, sufficient circumstantial evidence existed from which the jury could infer that defendant had dominion and control over the ammunition found in the Suburban.
The evidence showed defendant had used the Suburban for about a month to six weeks prior to his arrest. He used the Suburban every day during the prior two weeks to move his property from several storage units. When Officer Cottengim approached defendant, he was sitting alone in the back of the car. While defendant was conversing with a group of people, none were in the car with him. Defendant had the key of the Suburban on a key ring found in his pocket. That key ring also contained the keys to his storage units.
The ammunition was found amongst defendant's property in the car. Officer Cottengim found ammunition in plain sight on top of the back wheel well, a short distance from where defendant sat with his legs dangling out of the back of the car. More ammunition was found in the backseat, the same area where defendant's backpack was located.
Defendant also testified that he "[m]ay have moved some of those boxes [of ammunition]" during the course of moving his things from storage. When asked whether he manipulated or did anything with the ammunition, defendant responded that "[i]t may have gotten moved . . . ." He later implied that someone else who helped him move his things may have moved the ammunition boxes.
From this evidence, the jury could reasonably infer that defendant had treated the vehicle as his own for the past six weeks and that he moved the ammunition while using the car to transport his belongings from his storage units. (People v. Newman (1971) 5 Cal.3d 48, 53 [sufficient circumstantial evidence existed from which jury could infer that the defendant possessed drugs, where the envelope containing the drugs was located below dashboard of car the defendant was driving], disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) While it is true that dominion and control "cannot be inferred from mere presence or access" (People v. Zyduck (1969) 270 Cal.App.2d 334, 336), the evidence here established the "[s]omething more" necessary to infer constructive possession of the ammunition (ibid. [noting that "the necessary additional circumstances may, in some fact contexts, be rather slight"]).
The fact that defendant did not have exclusive use of the car does not mean he did not exercise dominion and control over the ammunition found in the car. As the jury was instructed, two or more people may possess something at the same time. (Williams I, supra, 5 Cal.3d at p. 215 [possession may be established by evidence showing the "joint dominion and control of the accused and another"].) The same holds true for the place where the contraband is found: "Conviction is not precluded . . . if the defendant's right to exercise dominion and control over the place where the contraband was located is shared with another." (People v. Rice (1976) 59 Cal.App.3d 998, 1002-1003.)
None of the cases upon which defendant relies dictate a different result. Defendant argues that the evidence here was weaker than in Williams I, where the Supreme Court found there was sufficient circumstantial evidence to infer that the defendant knew about, and had dominion and control over, a single tablet of benzedrine found in plain sight on the floor in the front seat of the car where the defendant was sitting alone. (Williams I, supra, 5 Cal.3d at p. 215.) According to him, because the ammunition was not found at his feet, it was not immediately accessible like the pill was to the defendant in Williams I.
We find, however, that the evidence in this case was similar to the evidence in Williams I. Here, defendant sat alone in the back of the Suburban with a box of ammunition located nearby on the top of the back wheel well inside the vehicle. Given the widespread use of vehicles in California and Officer Cottengim's testimony describing the car, it may reasonably be inferred that the jury was familiar with the layout of the car and could reasonably conclude that the box of ammunition, located in the back of the car close to where defendant sat, was easily accessible to him and subject to his dominion and control.
Defendant's attempt to analogize to People v. Sifuentes (2011) 195 Cal.App.4th 1410 fares no better. There, the court reversed the defendant's conviction for possession of a firearm by a felon after determining that the evidence did not support the conclusion that the defendant had the right to control a firearm discovered under a mattress of a bed in a hotel room where his codefendant and two prostitutes were also found. (Id. at pp. 1413-1414.) When officers arrived, they found the defendant sitting on one bed, his codefendant kneeling next to a second bed where the gun was discovered, and two naked women in the room in an area known for prostitution. (Ibid.) Unlike in Sifuentes, defendant was the only person present in the Suburban. No one else was in the vehicle. Defendant was seated in the back of the car next to where ammunition was found in a box on the inside back wheel well. He had the Suburban key on his key ring, knew the ammunition was in the car, and admitted that he may have moved it when he was using the car to move his storage items. The evidence thus showed more than simply the right to use the vehicle.
And unlike in People v. Jeffers (1996) 41 Cal.App.4th 917, where the defendant claimed he was unaware a gun was inside a wrapped package he delivered for a friend (id. at pp. 919-921), no evidence showed that defendant acquired the ammunition through misfortune or accident (id. at p. 922 ["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"]). Instead, defendant knew ammunition was inside the vehicle while he used it for over a month, and he conceded that he may have moved the ammunition while using the car to move his stuff from storage.
The evidence set forth above amply supported defendant's conviction of the ammunition possession offense. In arguing that the evidence was insufficient, defendant essentially asks this court to reweigh the evidence and view it in the light most favorable to the defense, contrary to the governing standard of review. This we cannot do.
II
Instructional Error
Defendant contends the trial court erroneously defined the terms "possession" and "control" for the unlawful possession of ammunition charge and improperly answered a factual inquiry when responding to a jury question during deliberations. He argues the error essentially resulted in a directed verdict and violated his federal constitutional rights to due process and a properly instructed jury. We disagree.
A trial court has a sua sponte duty to instruct the jury on the essential elements of an offense (People v. Flood (1998) 18 Cal.4th 470, 480), and on the general principles of law governing the case, which include those principles of law closely and openly connected with the facts of the case and necessary to the jury's understanding of the case (People v. Michaels (2002) 28 Cal.4th 486, 529-530).
A trial court also has a duty to provide the jury with further information on a point of law if requested. Section 1138 provides, "[a]fter the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, . . . the information must be given . . . ." In other words, "[t]he court has a primary duty to help the jury understand the legal principles it is asked to apply." (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
On appeal, we review the wording of a jury instruction de novo and determine whether the instructions are complete and correctly state the law. (People v. Bell (2009) 179 Cal.App.4th 428, 435.) We examine the entire charge of the court to determine whether the instructions are adequate (People v. Pena (1984) 151 Cal.App.3d 462, 475) and whether it is reasonably likely that the instructions as a whole caused the jury to misapply the law (People v. Cain (1995) 10 Cal.4th 1, 36).
Prior to deliberations, the court instructed the jury with CALCRIM No. 2591, the pattern jury instruction for unlawful possession of ammunition, as given, is as follows: "To prove that the defendant is guilty of [unlawful possession of ammunition], the People must prove that: [¶] 1. The defendant had under his custody or control ammunition; [¶] 2. The defendant knew he had under his custody or control the ammunition; [¶] AND [¶] 3. The defendant had previously been convicted of a felony." The court further instructed the jury that "[t]wo or more people may possess something at the same time[,]" and that "[a] person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person."
The court also instructed the jury with a defense-requested pinpoint instruction labeled CALCRIM No. 2592, which provided: "Mere proximity or opportunity of access to drugs or ammunition is not enough, by itself, to establish possession. Dominion and control are essentials of possession, and they may not be inferred from mere access or proximity. Access and proximity to an item are not the same as having the right to control it. Knowledge alone is insufficient to prove possession of drugs or ammunition. Something more must be shown to support inferring dominion and control. The necessary additional circumstances may, in some fact contexts, be rather slight. [¶] The People have the burden of proving each and every element of the offense beyond a reasonable doubt.
The trial court assigned a random CALCRIM number, here CALCRIM No. 2592, so the instruction would not stand out. --------
During deliberations the jury asked: "When the defendant took control and custody of the Suburban, did all the contents in the vehicle become under his custody and control under the law." The court responded, "Please consider Instructions 2302, 2304, 2591, 2592, regarding possession, along with all other instructions. [¶] A person can possess an item even if he or she does not own the item. If a person knows of the presence of the item and manipulates or moves the item, either himself or herself or through an instrumentality, that person has control over the item. If a person knows of the presence of an item and has the right to move the item, either himself or herself or through an instrumentality, that person has possession of the item even if he or she does not move or manipulate the item."
Defendant complains that the court's response erroneously equated access to an item with possession and allowed the jury to convict defendant of unlawful possession if it found he merely had access to the ammunition. By so instructing the jury, he argues, the court improperly directed the jury to find that his use of the Suburban constituted possession of the ammunition. Defendant is wrong.
The court's supplemental instruction first directed the jury to reconsider CALCRIM No. 2592, which specifically instructed the jury that mere proximity or opportunity of access to ammunition was not enough to establish possession and that access and proximity to an item are not the same as having the right to control it. We presume the jury followed the court's instruction to refer back to CALCRIM No. 2592, and that the jury followed CALCRIM No. 2592, the instruction defendant proposed. (People v. Wilson (2008) 44 Cal.4th 758, 803.) The jury was well aware that mere access and proximity to the ammunition was insufficient to establish control or possession.
The supplemental instruction then informed the jury that knowledge of an item together with movement or manipulation of the item, either by the person or through an instrumentality, showed the person had control over the item, and that a person possesses an item if he has knowledge of the item with a right to move the item, either himself or through an instrumentality, even if he does not move or manipulate the item.
This portion of the supplemental instruction was consistent with CALCRIM No. 2591, which provided in relevant part: "A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person." As the People point out, the right to move was equivalent to the right to control. Both CALCRIM No. 2591 and the supplemental instruction informed the jury that having the right to control, or, similarly, the right to move an item is the "something more than mere proximity or ability to access" an item that is required to prove possession.
In Armstrong, a narcotics possession case in which the defendant agreed to purchase drugs from the police but never actually received the drugs before being arrested, the court recognized that "a defendant might so directly verbalize disposition or movement of the drug as to warrant the inference he possesses it" even though he never received it. (Armstrong, supra, 217 Cal.App.3d at p. 539, italics added.) Although the court found the evidence insufficient to demonstrate the defendant exercised control over the contraband itself for purposes of finding constructive possession where, among other things, no evidence showed that he "direct[ed] the contraband be moved within a room" (id. at p. 540), the case illustrates that movement or the right to direct movement can be considered in determining possession.
Nothing in Armstrong, moreover, dictates that a trial court cannot elucidate the concepts of "control" or "right to control" for the jury when asked during deliberations, or that the court's response here improperly defined the concepts "with precise fact patterns." Armstrong simply recognized that control and right to control are "aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance." (Armstrong, supra, 217 Cal.App.3d at p. 539.) The court's supplemental instruction encapsulated the notion of exercising a degree of intentional direction over an item through movement or manipulation, something Armstrong also implicitly recognized. (Id. at pp. 539-540 [inference of possession may be warranted where evidence showed the defendant directed movement of contraband].)
We also reject defendant's contention that the supplemental instruction resulted in a directed verdict. While it is true that the constitutional right to a jury trial means the trial court cannot directly inform the jury that an element of the crime charged has been established and that the prohibition against directed verdicts includes situations where a judge's instructions effectively eliminate other relevant considerations if the jury finds a single fact to be true (People v. Yarbrough (2008) 169 Cal.App.4th 303, 315), the supplemental instruction did no such thing.
Here, the court directly advised the jury that a person has control or possession of an item if he knows of the item and either manipulates it, by himself or through an instrumentality, or that he has the right to move the item, by himself or through an instrumentality, even if he did not move or manipulate it. We discern nothing in the response that usurped the jury's factfinding function. (People v. DePrima (1959) 172 Cal.App.2d 109, 114 ["The determination of the element of possession is a question of fact for the jury"].) The court did not instruct the jury to find that defendant manipulated or moved the ammunition or that he had a right to move the ammunition. Defendant testified that the ammunition was not his, that he did not drive the Suburban, and that he had not manipulated, fired, or done anything with the ammunition. The supplemental instruction left the jury with the task of determining whether, in light of that testimony, defendant had control or possession of the ammunition. There was no error.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Mauro, J.