Opinion
A158359
05-19-2021
THE PEOPLE, Plaintiff and Respondent, v. IGOR PERLOV, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN230604)
Appellant Igor Perlov was found guilty following a jury trial of possession of ammunition by a prohibited person. On appeal he contends the trial court erred when it refused his request to instruct the jury on mistake of fact. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On January 22, 2019, appellant was charged with possession of ammunition by a prohibited person. (Pen. Code, § 30305, subd. (a)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
At the conclusion of a jury trial, the jury found appellant guilty as charged.
On August 30, 2019, the trial court suspended imposition of sentence and placed appellant on probation for five years.
Also, on August 30, 2019, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
At trial, the court read the following stipulation to the jury: "On October 2nd, 2018, the defendant became prohibited from owning or possessing firearms or ammunition for a period of five years, pursuant to the California Welfare and Institutions Code."
The jury was not informed of the reason for this prohibition, which was imposed after appellant's confinement in September 2018, under Welfare and Institutions Code section 5150. However, preliminary hearing testimony reflects that the confinement resulted from appellant leaving five voice mail messages for the FBI stating that he was hearing voices and experiencing homicidal ideation. Specifically, he said he was being programmed to carry out a mass shooting. It was subsequently determined that there were five firearms registered in appellant's name, which led to the events testified about at trial.
On September 26, 2018, San Francisco Police Officer Carlos Manfredi made contact with appellant in the parking lot of a CVS pharmacy in San Francisco. Appellant was sitting next to his car, a Nissan. After talking with appellant about firearms located inside the car, Manfredi recovered four handguns of different calibers, including .40 caliber and 9-millimeter, that were inside a lockbox on the backseat. All of the guns were legally registered to appellant. Manfredi did not ask about or find any ammunition in the car and he did not search the car's trunk.
On December 19, 2018, Police Officer Rafael Lizarde, formerly with the Quartzsite, Arizona Police Department, was on patrol on Interstate 10 in Quartzsite when he pulled over appellant, who was driving his Nissan car, for speeding. Appellant consented to a search of the car, including the trunk. As Lizarde searched the trunk, which was full of clothes and other items, he found an open-lidded, brown cardboard box containing three or four Ziploc bags, which in turn contained over a hundred rounds of ammunition of different calibers, including .40 caliber. The box was in the back of the trunk, covered by clothes. Lizarde found no guns during the search.
Lizarde took the box of ammunition out of the trunk and placed it on the curb where appellant, who was sitting on the curb, could see it. He asked appellant what the ammunition was for if he had no gun. Appellant responded that it was ammunition he had collected since he had to turn in his guns to the San Francisco Police Department and that he kept the ammunition for "memories" of when he had weapons. Their conversation about the ammunition lasted about 10 minutes.
Lizarde issued appellant a citation. Because he was unaware that appellant was prohibited from possessing ammunition, he returned the box containing the bags of ammunition to the trunk. He placed the box "right on top of everything else," where it was readily visible and anyone opening the trunk "would automatically see it." Appellant was standing next to the car, near the trunk, when Lizarde returned the ammunition to the trunk. Lizarde did not confiscate the ammunition or inform appellant of any confiscation. During their encounter, appellant was trembling and seemed nervous. The traffic stop was memorable for Lizarde because much of what appellant said was inconsistent or did not make any sense, which is unusual in traffic stops.
Twelve days later, on December 31, 2018, Officer Manfredi, who had confiscated appellant's firearms in September, contacted appellant inside his home in San Francisco. Appellant consented to a search of his Nissan car, and gave Manfredi the keys to the car, which was parked a block away. Manfredi searched the Nissan's trunk and saw "a lot of clutter" before finding a plastic bag on the left side of the trunk that contained 222 rounds of .40 caliber ammunition. The bag also contained a box of 50 rounds of .380 caliber ammunition; the box was of the kind that comes from the manufacturer. Neither the plastic bag nor the packaged ammunition was inside a cardboard box.
After finding the ammunition, Manfredi arrested appellant and also interviewed him about three hours later. During the interview, appellant admitted that he had the ammunition before his weapons were confiscated in September 2018. The videotaped interview and earlier-recorded footage from Manfredi's body camera were played for the jury at trial. A clip from the body camera footage showed that when Manfredi asked appellant what he was doing with the ammunition, appellant said it was "leftover," and when Manfredi said appellant was not allowed to have any ammunition, appellant said he did not know that. In clips from the subsequent interview, appellant was shown saying that when he was stopped by police in Arizona, the officers searching his car found the same ammunition. When the prosecutor asked about appellant's demeanor during the interview as a whole, Manfredi responded that he was evasive and tended to lie.
Defense Case
George Sir Duke, who was in a long term relationship with appellant's mother, testified that he lived with appellant and appellant's mother in San Francisco. On September 26, 2018, after police took appellant's guns, appellant's mother gave Sir Duke a big plastic bag containing ammunition of various calibers, which included loose bullets and several packets of ammunition, which he hid in the closet in his bedroom to keep it away from appellant. Appellant's mother had taken the bag from appellant's bedroom. Sir Duke was aware that appellant was not allowed to have ammunition in his possession, and he never told appellant he had the ammunition. When police came to their house on December 31, Sir Duke gave an officer the bag of ammunition. At trial, defense counsel showed Sir Duke the bag of bullets found in appellant's trunk on December 31, 2018, and Sir Duke testified that it was not the same bag of bullets he hid in his bedroom.
Appellant testified in his own defense. He kept lots of belongings in the trunk of his car, which was almost full. On September 26, 2018, the day his guns were confiscated, he did not know he had ammunition in the trunk of his car. When shown the bag of ammunition later found in the trunk, appellant said he had seen it before but was not sure where it came from. He believed it could have been ammunition his father bought while they were at a shooting range together about a year before trial. Appellant did not recall if he had put the ammunition in his car.
Appellant further testified that approximately two weeks after his guns were confiscated, he was at the hospital, and one of the doctors told him he was not allowed to have guns and ammunition, though he was not paying too much attention. When he got home, he noticed that his room was much cleaner. Before the police encounter at CVS, he had put a bag of ammunition in his room, but he was not sure if it was gone when he returned from the hospital.
Regarding the traffic stop in Arizona, appellant testified that he gave the police officers who pulled over him and his passenger, permission to search his car. Appellant stood right behind the trunk while two officers searched and was standing there when one of the officers opened the trunk. Appellant was talking to his friend and the other officer, but occasionally looked over while the trunk was being searched. The officer took approximately five items out of the trunk and put them on the pavement right beside the trunk, but the only item appellant noticed was a bag of salt.
Appellant did not recall an officer showing him a bag of ammunition. He thought the officer "said something about ammunition," but did not remember exactly what it was the officer said. Appellant "might have" also said something to the officer about ammunition. Appellant was not sure what happened to the items the officer took out of the trunk, but he thought "some of them were put back." The entire traffic stop took no more than 10 minutes. Appellant had not opened the trunk of his car for a long time before the traffic stop, and had not opened it since.
On cross-examination, appellant testified that he told the officer that he "used to be a firearm owner."
Defense counsel played a clip from appellant's videotaped interview with Officer Manfredi at trial. Counsel then asked appellant why he told Manfredi during the interview that the bag of ammunition Sir Duke gave to police belonged to Sir Duke, and appellant testified that he had assumed the ammunition was Sir Duke's. Appellant thought police had taken the bag of ammunition that was in his own room at the same time they confiscated his firearms. Counsel asked appellant why, when Manfredi asked during the interview about the ammunition found in the trunk of his car in Arizona, appellant said, "those were the ones you [Manfredi] took, the ones you saw today, the same ones." Appellant responded, "Because I haven't opened my trunk since then, so I assumed that they were the same ones, because I never put anything extra in my trunk." In addition, when Manfredi said the Arizona police had searched appellant's car and found the ammunition in the trunk, appellant remembered telling Manfredi that "they just left it alone." Appellant testified that he made that comment because, although he did not see the Arizona police return the ammunition to his car, "they would have either arrested me for it or confiscated it, and I wouldn't be here dealing with this case right now."
When appellant told Manfredi during the interview that he "totally forgot about it," he meant that "I probably forgot about it. At some point I might have put that ammunition in the trunk, but I just don't have it on the top of my head." Finally, when counsel asked if he lied during the police interview, appellant responded: "I tried not to lie, but, you know, it's difficult to gather up all the memories and come up with a valid explanation why that ammunition was there. That's what I tried to do. I tried to explain why that ammunition was in the trunk of my car."
On cross-examination, appellant testified that he owned the Nissan and he was the only person with access to it. He acknowledged telling Manfredi that the ammunition found in his trunk on December 31, 2018, was "leftover" and that it was the same ammunition the officer in Arizona had previously found. When the prosecutor asked at trial if it was the same ammunition, appellant responded, "I believe so." Appellant also acknowledged that the ammunition Manfredi found in the trunk of his car on December 31, was in his trunk on September 26, when his guns were confiscated. He did not remember if he had put the ammunition in the trunk himself. He never told Manfredi that he thought the Arizona police had taken his ammunition.
Appellant also acknowledged that he had a bag of ammunition in his room, but did not remember seeing it after September 26, when his guns were confiscated. He typically stored ammunition in plastic bags and kept bullets inside the cases they came in.
DISCUSSION
Appellant contends the trial court erred when it refused his request to instruct the jury on mistake of fact because the instruction was supported by substantial evidence.
I. Trial Court Background
Defense counsel requested that the court instruct the jury with CALCRIM No. 3406, regarding mistake of fact, and the prosecutor objected. The court questioned whether there was substantial evidence to support the instruction: "The argument from the defense seems to be that the defendant thought, when he was stopped in Arizona by the police, that if he had anything illegal in the car and he had any contraband in the trunk, that the police would have confiscated or taken it. [¶] So the fact that they did not was a mistake of fact. [Appellant] testified that he was never confronted with the fact that there was ammunition back there. The police came and testified that they did confront him, but [appellant] said he did not become aware that there was ammunition when he was stopped in Arizona. [¶] So it seems to me that it's kind of hard for the defense to say, well, because he thought they had taken it, he didn't realize he had it later, because he [also testified that he] never thought that he had it in the first place."
CALCRIM No. 3406 provides: "The defendant is not guilty of <insert crime[s]> if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.
"If the defendant's conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit <insert crime[s]>.
"If you find that the defendant believed that <insert alleged mistaken facts> [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for <insert crime[s]>.
"If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes)."
The court agreed with the prosecutor that the instruction would be confusing for the jury, given the contradictions in appellant's testimony, and also observed that "[m]uch of this instruction is already covered by common sense. In other words, if [appellant] didn't think the ammunition was in the trunk, then he certainly didn't have any knowledge of it, and that would be a defense, and he would not be guilty."
The court took the matter under submission, and subsequently stated that it viewed CALCRIM No. 3406 as "essentially . . . an accident instruction," "and that "[i]n this case the defense is saying that because [appellant] may have believed that the police in Arizona would have taken the ammunition if they had found any, that the fact the ammunition was there was an accident, or something along those lines, and I don't see that that is substantial evidence sufficient to give the instruction."
II. Legal Analysis
The offense of possession of a firearm or ammunition by a prohibited person (§ 30305, subd. (a)(1)) is a general intent crime that requires "knowing possession of the prohibited item." (People v. Bay (2019) 40 Cal.App.5th 126, 132.) Section 26 describes persons who are incapable of committing a crime, which includes those who "committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent." (§ 26, ¶ Three.) "Section 26 thus describes a range of circumstances or 'defenses' "—including mistake of fact—"which, the Legislature has recognized, operate to negate the mental state element of crimes and show there is no union of act and criminal intent or mental state." (People v. Lawson (2013) 215 Cal.App.4th 108, 114.) A lack of knowledge on appellant's part that there was ammunition in the trunk of his car would thus negate the mental state required for conviction under section 30305, subdivision (a)(1). (See Bay, at p. 132; see also § 26, ¶ Three.)
A trial court is required to instruct the jury on mistake of fact even without a request if there is substantial evidence in the record to support such a defense. (People v. Martinez (2010) 47 Cal.4th 911, 953.) "In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' " (People v. Salas (2006) 37 Cal.4th 967, 982.)
Here, appellant argues that there was substantial evidence showing that he was unaware that there was ammunition in the trunk of his car on December 31, 2018, and that the court therefore erred when it refused his request to instruct the jury with CALCRIM No. 3406. According to appellant, the court based its denial of his request on the improper conflation of mistake of fact with accident, which caused it to believe that a lack of knowledge was not sufficient; instead, as the court put it, "there needs to be some act" showing that "by some accident . . . ammunition ended up in the trunk of [appellant's] car."
We agree with appellant that the trial court's attempt to analogize the requirements for a mistake of fact instruction with the distinct factual requirements for an instruction on accident was questionable. Nonetheless, even assuming there was in fact substantial evidence in the record that appellant did not know there was ammunition in the trunk of his car (but see People v. Williams (1992) 4 Cal.4th 354, 361 [trial court must give a requested instruction only when defense is supported by evidence sufficient to " 'deserve consideration by the jury,' " not " 'whenever any evidence is presented, no matter how weak' "]), we conclude any error in refusing appellant's request to instruct the jury with CALCRIM No. 3406 was harmless.
In applying the state standard of error (People v. Watson (1956) 46 Cal.2d 818, 836), "we may look to the other instructions given, as well as whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability that the error affected the result. [Citations.]" (People v. Watt (2014) 229 Cal.App.4th 1215, 1220 (Watt).)
Appellant asserts that the federal constitutional standard of error (Chapman v. California (1967) 386 U.S 18, 24) is applicable here because the trial court's refusal to instruct on mistake of fact impinged on his constitutional right to present a complete defense. First, as we shall explain in the text, post, the jury was instructed of the need for appellant to knowingly possess the ammunition and defense counsel's argument centered on his lack of knowledge. Hence, the failure to instruct with CALCRIM No. 3406 did not preclude appellant from presenting a complete defense. Second, our Supreme Court has confirmed that, in general, any " '[e]rror in failing to instruct on the mistake-of-fact defense is subject to the harmless error test set forth in People v. Watson[, supra,] 46 Cal.2d [at p. 836].' " (People v. Molano (2019) 7 Cal.5th 620, 670; accord, People v. Givan (2015) 233 Cal.App.4th 335, 349; People v. Hanna (2013) 218 Cal.App.4th 455, 462.) Finally, even if the more stringent Chapman standard were applicable, we would find the error harmless beyond a reasonable doubt. (Chapman, at p. 24.) --------
First, the evidence of appellant's guilt presented at trial was overwhelming. Officer Lizarde testified that during the December 19, 2018 traffic stop in Arizona, he took the cardboard box containing the ammunition he had found in the trunk of appellant's car and placed it on the curb where appellant could see it. He then asked appellant what the ammunition was for if he did not have a gun, and appellant responded that he kept the ammunition for "memories" of when he had weapons. Their conversation about the ammunition lasted some 10 minutes. Moreover, even though Lizarde then placed the box, which had an open lid, "right on top of everything else" inside the trunk where it was "readily visible" to anyone opening the trunk, when Manfredi looked inside the trunk 12 days later, the ammunition was no longer in the cardboard box and no longer on top of the rest of the clutter in the trunk.
In addition, as Manfredi's body camera footage reflects, when he asked appellant what he was doing with the ammunition found in the trunk, appellant said it was "leftover." During the videotaped interview, appellant told Manfredi that he had the ammunition before his weapons were confiscated in September 2018. Appellant also told Manfredi that this was the same ammunition officers found during the Arizona search. When counsel asked at trial why he told Manfredi this, appellant testified, "Because I haven't opened my trunk since then, so I assumed that they were the same ones, because I never put anything extra in my trunk." Appellant also acknowledged at trial that the ammunition Manfredi found in the trunk of his car on December 31, was in his trunk on September 26, when his guns were confiscated, and that he told Manfredi the ammunition was "leftover."
While appellant additionally testified that he had no recollection of the ammunition being in the trunk, had not seen or discussed the ammunition with Lizarde in Arizona, and had not looked in the trunk after that traffic stop, this testimony was contradicted by the abundance of evidence discussed above, including his own recorded statements and testimony. Appellant's inconsistent, evasive testimony plainly did not overcome the extremely strong evidence that he was fully aware of the presence of the ammunition. (See Watt, supra, 229 Cal.App.4th at p. 1220; see also People v. Boyer (2006) 38 Cal.4th 412, 470 [even if court erred by failing to instruct on complete defense of unconsciousness, any error "was harmless by any applicable standard" in light of "very strong evidence" suggesting appellant was conscious during the alleged offense and the weak evidence of unconsciousness].)
In addition, the court gave CALCRIM No. 2591, which set forth the elements of the offense of unlawfully possessing ammunition and informed the jury that to convict appellant of violating of section 30305, subdivision (a), the prosecution "must prove," inter alia, that he "knew he owned/possessed/had under his custody or control ammunition . . . ."
Second, during closing argument, defense counsel focused on the knowledge element, first summarizing the question facing the jury: "So why are we having a trial? What's the disagreement? On December 31st, 2018, did he know about the ammo in his car? Was that done on purpose; right? That's the issue. More accurately, did the state prove those things beyond a reasonable doubt?" Counsel then proceeded to argue at length that, despite evidence to the contrary, the jury should find that appellant did not knowingly possess the ammunition, and therefore acquit him of the charge of possession of ammunition by a prohibited person. Thus, when the jury found appellant guilty of the charged offense, it necessarily found that he had the requisite mental state, i.e., knowledge. (See Watt, supra, 229 Cal.App.4th at p. 1220 [to extent modified version of CALCRIM No. 3406 erroneously told jury that defendant's lack of knowledge must be objectively reasonable, any such error was harmless where other instructions informed jury that it could find defendant guilty only if it concluded beyond a reasonable doubt that defendant knew items in his possession had been stolen].)
For all of these reasons, we conclude the court's error, if any, in refusing to instruct the jury with CALCRIM No. 3406 was harmless under any standard.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.