Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA108853 Gary E. Daigh, Judge. Affirmed.
Nancy Gaynor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Jeffrey Martinez Santos was convicted after a jury trial of unlawful possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and unlawful possession of a firearm by a person convicted of a violent felony (§ 12021.1). On appeal Santos contends the trial court erred in failing to instruct the jury sua sponte that the People were required to prove he knew the object he possessed (described by Santos to a sheriff’s detective as a “collector’s item”) was, in fact, a firearm. He also contends the trial court abused its discretion in sentencing him to the upper term for his unlawful possession of the firearm. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of Trial Evidence
The basic evidence is not in dispute. On October 2010 Los Angeles County Sheriff’s deputies executed a search warrant and found a small gun between two mattresses in the bedroom of Santos’s apartment. The gun was unloaded, but appeared to be operational. No bullets or firearm accessories were found in the apartment. The gun was later tested by a criminalist, who was able to fire it. The criminalist identified the gun as a.32-caliber short rimfire revolver manufactured in 1875 by Iver Johnson. The manufacturer stopped producing ammunition for the gun in the 1970’s, but bullets were available from on-line sellers.
In a tape-recorded interview with detectives, played for the jury, Santos denied possessing a gun. When informed a gun had been found in his apartment, Santos explained “that gun” was a “collector’s item” he had purchased from “a bum.” Nonetheless, Santos acknowledged it was a violation of his probation to have the gun whether or not it was a “collector’s item.” No wall mount or glass case was found where the gun could be displayed.
The gun was shown to the jury during testimony, but was not admitted into evidence. Photographs of the gun were admitted into evidence.
It was stipulated Santos had a prior conviction (aggravated assault) for purposes of both unlawful possession counts.
Santos neither testified nor presented other evidence in his defense.
2. Jury Instructions
The court without objection instructed the jury on the elements of both charges using CALCRIM No. 2511: “To prove that the defendant is guilty of the crime, the People must prove: [¶] 1. The defendant owned or purchased or received or possessed a firearm; [¶] 2. The defendant knew that he owned, purchased, received, or possessed a firearm; and [¶] 3. The defendant has a previous conviction. [¶] A firearm is any device designed to be used as a weapon from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion. [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. [¶] Two or more persons may possess something at the same time. [¶] 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 trial court instructed the jury on general intent pursuant to CALCRIM No. 250: “The crimes charged in this case require proof of the union or operation of act and wrongful intent. [¶] For you to find the person guilty of the crimes in this case that person must not only commit the prohibited act or fail to do the required act, but must do so with a wrongful intent. A person acts with wrongful intent when he or she potentially does a prohibited act. However, it is not required that he or she intend to break the law. The act required is explained in the instructions for that crime.”
The trial court then instructed on the required union of act and specific intent or mental state pursuant to CALCRIM No. 251: “The crimes charged in this case require proof of union and joint operation of act and wrongful intent. [¶] For you to find the person guilty of the crimes that person must not only intentionally commit the prohibited act but must do so with the specific mental state. [¶] The specific mental state required for the crimes in count 1 and 2 is element 2: that the defendant knew that he owned, purchased, received or possessed the firearm.”
The trial court rejected defense counsel’s request to instruct the jury on mistake of fact, explaining there was no requirement the firearm be in working order, so any mistaken belief on that point was irrelevant. The court continued, “One of the elements is he had to know it was a firearm he possessed. Specifically the instruction says it doesn’t need to be in working order. If it was designed to shoot. No one [argues] that it wasn’t designed to shoot and it appears to be capable of shooting. Well, I suppose you could argue a reasonable man wouldn’t believe it would be capable of shooting. You can argue that.” Defense counsel replied, “That’s what I intend to argue.” The court permitted him to do so: “You can do that, but there’s no mistake of fact because there is no element. He may not know it’s a firearm. You may argue however you want around that.”
CALCRIM No. 3406 states: “The defendant is not guilty of [the charged crime] 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 [the charged crime]. [¶] If you find that the defendant believed [the alleged mistaken fact] [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for [the charged crime]. [¶] If you have a reasonable doubt about whether the defendant had the specific mental state required for [the charged crime], you must find (him/her) not guilty of (that crime).”
The contention that Santos did not know he possessed a firearm was the centerpiece of the defense closing argument: “[The prosecutor] still has to prove that my client objectively knew that that was an item capable of being used as a weapon and he had not done it.... [H]e cannot prove his case beyond a reasonable doubt.... I will submit to you that my client is young and stupid. Let’s be honest. But that does not mean that he is guilty of this offense. That does not mean that he knew that he had a gun capable of being used as a weapon because I submit to you that he did not and his behavior is consistent with him not knowing that it was a weapon. His behavior is inconsistent with him knowing that it was a weapon because if someone is going to keep something as a weapon, they are going to prepare to use it. They are going to have bullets. They are going to have cleaning materials. They are going to have accessories, none of which my client had.”
In his final argument the prosecutor met that contention head-on: “So basically what it boils down to is the defense is he didn’t think it was a gun.... The argument that this is not a gun, I mean it’s not like this is some pen, like some James Bond kind of pen gun that also appears capable of shooting and he didn’t know it was actually a gun. Cylinder, barrel, hammer, trigger, handle. It’s a gun. He knows it’s a gun. It’s heavy. You can feel it if you want back there. It’s heavy, a gun. It’s not some plastic cap gun like that. It’s a gun. It’s a gun.... No one is thinking this is a ham sandwich or a slice of pizza or a pencil. It’s a gun. Any reasonable person would think this is a gun. No one would think otherwise. So for that reason I’m asking you to return back a verdict of guilty on both counts.”
3. The Verdict and Sentencing Hearing
The jury found Santos guilty on both unlawful possession counts. In a bifurcated proceeding Santos was found to have suffered a prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court denied Santos’s motion to dismiss his prior strike conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him to an aggregate state prison term of six years, consisting of the three-year upper term for unlawful possession of a firearm by an individual convicted of a violent felon, doubled under the Three Strikes law. The sentence on the second unlawful possession count was stayed pursuant to section 654.
DISCUSSION
1. The Trial Court Did Not Commit Prejudicial Error by Failing To Specifically Instruct That the People Were Required To Prove Santos Knew the “Collector’s Item” He Possessed Was a Firearm
a. Standard of review
A trial court must instruct the jury on the law applicable to each particular case. (People v. Cunningham (1993) 4 Cal.4th 1233, 1311; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) That obligation includes the duty to instruct on all elements of a charged offense. (Cunningham, at p. 1311.) However, “although a specific element is not expressly recited in an instruction, it may nonetheless be implicit in the instructional language used.” (People v. Mena (2005) 133 Cal.App.4th 702, 706; see People v. Dieguez (2001) 89 Cal.App.4th 266, 279.)
We review claims of improper jury instructions de novoto determine whether the trial court fully and fairly instructed on the applicable law. (People v. Cole (2004) 33 Cal.4th 1158, 1210; People v. Martin, supra, 78 Cal.App.4th at p. 1111 .) To make this determination, we interpret jury instructions so as to support the judgment where reasonably possible, and we assume the jurors are intelligent persons capable of understanding and correlating all the jury instructions given. (Id. at pp. 1111-1112.) When a jury instruction is ambiguous, the reviewing court examines the record to determine whether there is a reasonable likelihood that the jury misconstrued or misapplied the instructional language. (People v. Clair (1992) 2 Cal.4th 629, 663.)
b. Mens rea and the element of knowledge
“[T]he requirement that, for a criminal conviction, the prosecution prove some form of guilty intent, knowledge, or criminal negligence is of such long standing and so fundamental to our criminal law that penal statutes will often be construed to contain such an element despite their failure expressly to state it. ‘Generally, “‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’” [Citation.] In other words, there must be a union of act and wrongful intent, or criminal negligence. [Citations.] “So basic is this requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.”’” (In re Jorge M. (2000) 23 Cal.4th 866, 872; see also People v. Simon (1995) 9 Cal.4th 493, 521-522.)
Unlawful possession of a firearm under section 12021 or section 12021.1 is not a strict liability crime: Knowledge or wrongful intent is a necessary element. (People v. Snyder (1982) 32 Cal.3d 590, 592 [“[w]ith respect to the elements of possession or custody, it has been held that knowledge is an element of the offense”]; People v. Jeffers (1996) 41 Cal.App.4th 917, 922, 924 [“whether possession is actual or constructive, it must be intentional”; “[w]rongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm”].) At the very least, this knowledge element requires proof that the defendant was aware of the presence of the firearm. If, for example, a gun was placed inside a defendant’s backpack without the defendant’s knowledge, the defendant could not be convicted of unlawful possession of the weapon. (See People v. Rubalcava (2000) 23 Cal.4th 322, 332, fn. 6.) “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. [Citation.] 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.” (Jeffers, at p. 922.)
c. Possession of illegal weapons
Relying primarily on In re Jorge M., supra, 23 Cal.4th 866, Santos argues to establish a violation of sections 12022 or 12022.1, the People must prove not only that the defendant knowingly possessed or controlled the firearm but also that the defendant knew or should have known the item possessed had the characteristics of a firearm, rather than merely a replica or a toy gun. (See § 12001, subd. (b) [“[a]s used in this title, ‘firearm’ means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion”].) In In re Jorge M. the Supreme Court held section 12280, banning possession of unregistered assault weapons, includes a scienter requirement necessitating proof the offender knew or reasonably should have known that the firearm he or she possessed had characteristics that made it an assault weapon. The Court emphasized the Legislature had recognized that semiautomatic weapons had significant lawful uses and intended to ban only certain of these weapons and had described the proscribed firearms in a definitional section setting forth the pertinent characteristics. (In re Jorge M., at p. 875.) The Court then concluded a scienter requirement regarding these characteristics was necessary in order to eliminate the “significant possibility innocent possessors would become subject to [the] weighty sanction[s]” imposed by the statute. (Id. at p. 887; see People v. Rubalcava, supra, 23 Cal.4th at pp. 331–332 [“[b]ecause the dirk or dagger portion of section 12020 criminalizes ‘“traditionally lawful conduct, ”’ we construe the statute to contain a ‘knowledge’ element”].) Following In re Jorge M. appellate courts have held several other statutes prohibiting possession of illegal weapons necessarily incorporate a scienter requirement to preclude criminalizing otherwise innocent possession. (See, e.g., People v. Taylor (2001) 93 Cal.App.4th 933, 941 [cane sword]; People v Westlund (2001) 87 Cal.App.4th 652, 658 [firearm silencer]; see also People v. Coria (1999) 21 Cal.4th 868, 880 [crime of manufacturing methamphetamine (Health & Saf. Code, § 11379.6) requires that the defendant knows the character of the substance being manufactured because chemical synthesis is traditionally lawful conduct].)
As discussed, Santos requested the jury be instructed regarding mistake of fact as an affirmative defense, but only with respect to his purported belief the “collector’s item” in his possession was not in working order. The trial court properly rejected that proposed instruction because the firearm being operable is not an element of either offense. (See People v. Nelums (1982) 31 Cal.3d 355, 358 [§ 12021 prohibits possession of an inoperable firearm, “that is, one which although designed to be used as a weapon is presently incapable of being fired”]; People v. Arnold (2006) 145 Cal.App.4th 1408, 1415 [“[o]ur Supreme Court has noted an evident legislative intent to ‘prohibit possession by an ex-felon of an inoperable... firearm’”].) Santos does not challenge this ruling on appeal.
d. Possession of firearms by a prohibited class of individuals
Distinguishing between offenses generally prohibiting all persons from possessing certain types of weapons, which necessarily focus on the proscribed characteristics of the particular weapons at issue, and sections 12021 and 12022.1, which prohibit felons from possessing any firearm at all and thus concern the class of individuals possessing the weapon, not the weapon itself, the Attorney General argues the defendant’s knowledge that the object he or she possessed had the characteristics of a firearm is not an element of these possession crimes.
In People v. Snyder, supra, 32 Cal.3d 590 the Supreme Court held the defendant’s knowledge that a prior offense was a felony, rather than a misdemeanor, was not an element of the offense, which at the time prohibited felons from possessing only concealable firearms, and her mistaken belief concerning the status of her conviction was not a defense. “[R]egardless of what she reasonably believed, or what her attorney may have told her, defendant was deemed to know under the law that she was a convicted felon forbidden to possess concealable firearms. Her asserted mistake regarding her correct legal status was a mistake of law, not fact. It does not constitute a defense to section 12021.” (Snyder, at p. 593.) Section 12021 was amended in 1989 to substitute “firearm” for “pistol, revolver, or other firearm capable of being concealed upon the person.” (See Stats. 1989, ch. 254, § 1.)
The differences between the legislative policies underlying a general ban on specific types of assault weapons and the prohibition against felons possessing firearms noted by the Attorney General are readily apparent. (See People v Scheidt (1991) 231 Cal.App.3d 162, 171.) Moreover, in contrast to the ban on assault weapons, which includes exacting technical specifications and physical attributes that may not be readily apparent to the ordinary citizen, “any firearm” is a commonly used generic term. Unlike assault weapons or other weapons with technical specifications, that a particular item has the characteristics qualifying it as a “firearm” will generally be obvious, particularly to someone who had substantial and unhindered possession of it. (Cf. In re Daniel G. (2004) 120 Cal.App.4th 824, 832 [“[b]ecause all persons are obligated to learn of and comply with the law, it is ordinarily reasonable to conclude that, absent ‘exceptional cases in which the salient characteristics of the firearm are extraordinarily obscure, or the defendant’s possession of the gun was so fleeting or attenuated as not to afford an opportunity for examination, ’ one who knowingly possesses a semiautomatic firearm reasonably would investigate and determine whether the weapon’s characteristics made it an assault weapon’”].)
Nonetheless, in this case we need not resolve whether sections 12021 and 12021.1 require proof that the defendant knew or reasonably should have known the object he or she possessed was, in fact, a firearm. The jury instructions as given, combined with the closing arguments by both defense counsel and the prosecutor, plainly directed the jury to decide that question. (See People v. Young (2005) 34 Cal.4th 1149, 1202 [“reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury”].) Any potential ambiguity in the instructions, therefore, was harmless under either a Chapman or Watson standard. (See People v. Mower (2002) 28 Cal.4th 457, 484 [“If a trial court’s instructional error violates the United States Constitution, the standard stated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], requires the People, in order to avoid reversal of the judgment, to ‘prove beyond a reasonable doubt that the error... did not contribute to the verdict obtained.’ [Citation.] But if a trial court’s instructional error violates only California law, the standard is that stated in People v. Watson (1956) 46 Cal.2d 818, 836, which permits the People to avoid reversal unless ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’”].)
As discussed, the jury was instructed in accordance with CALCRIM No. 2511 that an element of the crime of unlawfully possessing a firearm is that “[t]he defendant knew that he owned, purchased, received, or possessed a firearm.” A reasonable construction of this language, without more, surely is that the defendant’s knowledge must relate to both the fact of possession and the nature of the item possessed. (But see CALCRIM No. 2500, possession of illegal or deadly weapon under § 12020, subd. (a), which specifies as separate elements that the defendant knew he or she possessed the proscribed item and also knew the item was the type of weapon prohibited.) Moreover, although the unlawful possession of a firearm by a felon is a general intent crime (People v. Jeffers, supra, 41 Cal.App.4th at p. 922 [“[n]o specific criminal intent is required for this crime; general intent to commit the proscribed act is sufficient to sustain a conviction”]; accord, People v. Spirlin (2000) 81 Cal.App.4th 119, 130), the court in this case also instructed the jury, incorrectly, pursuant to CALCRIM No. 251, “For you to find the person guilty of the crimes that person must not only intentionally commit the prohibited act but must do so with the specific mental state. [¶] The specific mental state required for the crimes in count 1 and 2 is element 2: that the defendant knew that he owned, purchased, received or possessed the firearm.” Assuming, as we must, the jurors were intelligent persons, capable of understanding and correlating all the instructions (People v. Richardson (2008) 43 Cal.4th 959, 1028; People v. Guerra (2006) 37 Cal.4th 1067, 1148), it is difficult to imagine they understood the requirement of proof of Santos’s specific mental state as something other than his knowledge that he, in fact, possessed a firearm. That is, the proof of the knowledge element Santos argues is required was “implicit in the instructional language used.” (People v. Mena, supra, 133 Cal.App.4th at p. 706.)
Indeed, as reflected in the discussion between the court and defense counsel regarding instructions and possible argument on this point, quoted above, the trial court itself clearly believed, “One of the elements is he had to know it was a firearm he possessed, ” and understood the instructions as given placed that issue before the jury. The closing arguments by both the prosecutor and defense counsel, in turn, focused on the question whether Santos knew the “collector’s item” was a firearm; in fact, that was the only disputed issue presented.
Notwithstanding defense counsel’s vigorous argument on this point, the evidence simply did not create a reasonable doubt whether Santos knew his “collector’s item” was a firearm; and the jury properly concluded he had violated sections 12021 and 12021.1. Santos himself did not testify; in his statement to sheriff’s detectives, however, he expressly referred to “that gun” found in his house, then explained it was a “collector’s item.” Nothing in that statement permits a reasonable inference Santos did not know he possessed a firearm. To be sure, in his closing argument defense counsel pointed to certain aspects of the gun-it was old, dirty, small, different in appearance from modern weapons and lacked readily available ammunition-and of Santos’s behavior-his apparent surprise at the gun’s discovery and his failure to have gun-cleaning supplies on hand. Yet none of this suggests that Santos was unaware the firearm was real, believing it to be only a replica, but rather that he knew it was a firearm, but thought it was inoperable due to its age, condition and lack of ammunition.
In sum, even if the defendant’s knowledge that the item he or she possessed had the characteristics of a firearm is an element of a violation of sections 12021 and 12021.1, in light of the instructions actually given, including CALCRIM No. 251, and the argument by counsel in this case, the jury was not reasonably likely to have construed the instructions defining the elements of the charged offenses in a manner that violated Santos’s rights. (See People v. Rogers (2006) 39 Cal.4th 826, 873; Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385] [“in reviewing an ambiguous instruction..., we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution”].) Moreover, in the absence of any evidence Santos in fact believed the firearm was only a replica, the failure to specifically instruct that the People were required to prove Santos knew the “collector’s item” he possessed was a firearm, if error at all, was harmless beyond a reasonable doubt.
2. The Trial Court Acted Within Its Discretion in Sentencing Santos
In sentencing Santos to the upper term for unlawful possession of a firearm, the trial court identified two aggravating factors: Santos’s prior convictions involved the use or possession of a gun (Cal. Rules of Court, rule 4.421(c)), and he was on probation at the time he committed the current offenses (Cal. Rules of Court, rule 4.421(b)(4)). A single factor in aggravation is sufficient to justify a sentencing choice. (People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.) Recidivism, including poor performance on probation, is “a traditional, if not the most traditional, basis for... increasing an offender’s sentence.” (People v. Towne (2008) 44 Cal.4th 63, 75.)
Although acknowledging the aggravating factors identified by the court, Santos argues the court wholly ignored certain mitigating factors favoring imposition of the middle or lower term, including numerous letters submitted by Santos’s coworkers, family and friends, as well as the nature of the firearm found in his possession. Santos contends these factors indicate, but for this offense, he was performing well on probation as a conscientious, reliable and contributing member of society. He also argues the two offenses for which he was convicted, based on possession of a single, antique gun, were not particularly aggravated.
At Santos’s request we have taken judicial notice of the letters written on his behalf that were submitted to the trial court.
Prior to imposition of sentence, the court stated it had read and considered the probation report. The court then allowed Santos to give a statement in which he expressed remorse and requested leniency. The trial court explained it had read the letters submitted on Santos’s behalf and had considered the nature of the firearm involved. The court concluded, however, although the gun was small and its ammunition had not been manufactured for more than 40 years, those factors in mitigation did not outweigh the factors in aggravation.
Even if mitigating factors unquestionably exist, the weight or value assigned to
them is within the trial court’s broad discretion; the court is free to disregard them altogether and need not explain why it did so. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) A sentencing decision “‘will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.”’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) No abuse of discretion occurred in this case.
Indeed, the trial court need not cite the facts that support its decision and must only set forth its reasons for the term selected, “stat[ing] in simple language the primary factor or factors that support the exercise of discretion, ” which the court did in this case.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.
Santos did not ask the trial court to instruct the jury that he was not guilty of the charged offenses if he had a reasonable but mistaken belief that the “collector’s item” was not a real firearm, only a replica; and he does not contend on appeal that the court erred in failing sua sponte to give such a mistake-of-fact instruction. (Cf. People v. Salas (2006) 37 Cal.4th 967, 971-972 [seller’s reasonable and good faith belief that a security is exempt from registration is an affirmative defense to a charge of unlawful sale of an unregistered security].)
(§ 1170, subd. (b); Cal. Rules of Court, rule 4-406(a); see People v. Sandoval (2007) 41 Cal.4th 825, 846-847.)