Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. FWV035165, Craig S. Kamansky, Judge.
Toni Guthrie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Following a jury trial, defendant was found guilty of willfully fleeing or evading a pursuing police officer (Veh. Code, § 2800.1, subd. (a)) (count 1); carrying a loaded firearm with a prior felony conviction (Pen. Code, § 12031, subd. (a)(1), (2)(A)) (count 2); and possession of a firearm with a prior felony conviction (Pen. Code, § 12021, subd. (a)(1)) (count 3). The trial court thereafter found true that defendant had suffered a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Defendant was sentenced to a total term of four years in state prison: the upper term of three years on count 2, plus an additional one year for the prior prison term enhancement; the sentence on count 3 was stayed pursuant to Penal Code section 654. He was also sentenced to 32 days in county jail, credit for time served, on count 1.
On appeal, defendant contends (1) there was insufficient evidence to support his conviction for willfully fleeing a police officer (count 1); (2) there was insufficient evidence to support his firearm convictions (counts 2 and 3); (3) the trial court erred in instructing the jury with the flight instruction; (4) he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 2; and (5) the abstract of judgment and the court’s minute order must be corrected to reflect that his sentence on count 1 was stayed pursuant to Penal Code section 654. We agree the abstract of judgment must be corrected but reject defendant’s remaining contentions.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On July 3, 2005, about 7:23 p.m., defendant was driving through the City of Montclair with passenger Kim H. (Kim), a 16-year-old male acquaintance, when Officer Matthew Quinteros observed Kim not wearing his seatbelt. Officer Quinteros followed defendant’s car and watched as it made a rolling right turn through a stop sign. The officer also noted that one of the car’s brake lights was burned out and that defendant failed to signal when making the right turn.
Officer Quinteros thereafter activated the overhead lights of his police cruiser and attempted to stop defendant’s vehicle. Officer Quinteros saw defendant look back at him over his shoulder. Defendant continued driving, so Officer Quinteros turned on the siren of his police vehicle. Defendant continued to drive, while fidgeting in his seat and looking back at the officer through his rearview mirror. When defendant approached an intersection, he slowed the car down to about five miles per hour and began tapping on the brakes about three or four times. Officer Quinteros was not sure whether defendant planned to stop at that point or keep going. Defendant continued to look back at Officer Quinteros, either over his shoulder through the rear window or through the rearview mirror, while driving. He eventually made a left turn at an intersection, drove for approximately another 200 feet, and stopped. The whole incident lasted about two minutes and spanned one mile. In addition, Officer Quinteros’s patrol vehicle’s lights were on during the entire pursuit, and his siren was on for all but the first 15 or 30 seconds.
On cross-examination, Officer Quinteros acknowledged that there were cars parked along the residential road on both sides of the street and that defendant was talking on his cellular telephone.
After defendant stopped his vehicle, Officer Quinteros had defendant and Kim remain inside the vehicle with their hands up until back-up officers arrived on the scene. Officer Quinteros considered this a “high-risk felony stop,” which he defined as “[a]ny time that there’s a crime occurs or a person flees from us or doesn’t yield right away. Another example would be maybe a stolen car, any crime like that. We take extra precaution; we do a high-risk traffic stop where we pull the occupants of the vehicle out to us instead of approaching the vehicle.”
When other officers arrived, Officer Quinteros ordered both occupants out of the vehicle. Kim was fully cooperative, but defendant started to lower his hands and ignore the officers’ repeated commands. He kept turning around and facing the police instead of walking backwards toward them as ordered. Defendant appeared confused and acted “bizarre.” After officers fired four rounds from a pepper ball gun at defendant, he complied.
During a search of defendant’s car, officers found a black and gray handgun on the floorboard under the driver’s seat. Officer Quinteros saw the gun while he was standing between the open front passenger door and the seat. Four rounds of live ammunition were in the gun’s magazine. Investigators checked the clip and the ammunition for fingerprints but got “[n]egative results.” The gun was unregistered, and investigators did not perform a DNA swab on the gun or a gunshot residue test on either defendant or Kim.
Defendant admitted to Officer Quinteros that he saw the officer’s patrol vehicle’s lights but said he did not stop because he was “unsure how to react to police officers” since he was from Simi Valley and not from the Montclair area. He also said he “wasn’t sure how to react to the lights and the siren.” He never mentioned his inability to find a parking spot. He denied ownership of the gun as well as knowledge of the presence of the gun in the car. He claimed that because he had his car windows open all day, someone could have placed the gun in the car unbeknownst to him.
Kim was questioned and then released. Kim said they were listening to music on the car radio before the police came along. He stated he noticed the police car behind them even before Officer Quinteros attempted to conduct a traffic stop. Once he saw the patrol vehicle’s overhead lights and heard the siren, he told defendant the police were behind him and that defendant should stop. Kim did not remember if defendant responded. In addition, Kim stated that the gun was not his, that he did not know there was a gun in the car, that defendant never said anything about a gun, and that he never saw defendant reach under the seat.
On cross-examination, Kim acknowledged that while defendant was driving, Kim was looking straight ahead and not at defendant or in his direction. He never looked in the direction of the floor, defendant’s feet, or the car pedals. Though he noted that defendant’s car was always traveling at or below the speed limit, he admitted that defendant had passed available parking spaces before defendant finally brought his car to a stop.
II
DISCUSSION
A. Sufficiency of the Evidence for Willfully Evading a Peace Officer
Defendant contends there was insufficient evidence to support his conviction for willfully evading a pursuing police officer because he had no intent to evade the officer, and he stopped as soon as he found an available parking space. We disagree.
When a defendant challenges the sufficiency of the evidence, the reviewing court must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence -- meaning, evidence that is reasonable, credible, and of solid value -- must support each essential element of an offense. (Id. at p. 578.) A judgment of conviction will not be set aside for insufficiency of the evidence to support the jury’s verdict unless it is clearly shown there is no basis on which the evidence can support the jury’s conclusion. (Ibid.; see also People v. Rodriguez (1999) 20 Cal.4th 1, 11) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In determining whether substantial evidence exists, “we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71; see also People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) “Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933.) The standard of review applies even “when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Defendant was convicted of misdemeanor evading an officer in violation of Vehicle Code section 2800.1, subdivision (a). That section, as it read at the time of this incident, provided: “Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor if all of the following conditions exist: [¶] (1.) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2.) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3.) The peace officer’s motor vehicle is distinctively marked. [¶] (4.) The peace officer’s motor vehicle is operated by a peace officer . . ., and that peace officer is wearing a distinctive uniform.” (Former Veh. Code, § 2800.1, subd. (a), Stats. 1995, ch. 68, § 1.) “Under Vehicle Code section 2800.1, the prosecutor must prove that the defendant was willfully fleeing from a peace officer under the circumstances described in that section.” (People v. Pinkston (2003) 112 Cal.App.4th 387, 393.)
Here, as set out in detail in part I, ante, there was more than substantial evidence that defendant violated Vehicle Code section 2800.1, subdivision (a). Officer Quinteros was in uniform and in a marked patrol vehicle. He followed the defendant with his patrol vehicle’s overhead lights and siren activated for a considerable distance. Defendant looked directly at the officer several times, either over his shoulder or in his rearview mirror. Defendant’s passenger even told defendant that he should stop. The record adequately shows that the People proved beyond a reasonable doubt the above-mentioned elements of the offense.
Relying on People v. Pinkston, supra, 112 Cal.App.4th 387, defendant argues that there was no evidence to prove that he willfully evaded a peace officer because at no time did he violate any traffic ordinance once the officer activated his lights and siren, and he stopped when he found an available parking space. However, there is no statutory requirement that a defendant commit any traffic violations in order to be convicted of misdemeanor evading a peace officer. (See Veh. Code, § 2800.1, subd. (a).) In addition, defendant’s reliance on Pinkston is misplaced. Unsafe driving is only a factor when the People allege that a defendant drove in willful or wanton disregard for the safety of persons or property in violation of Vehicle Code section 2800.2, which elevates the crime to a felony. (See Pinkston, at pp. 393-394.) There was no such allegation in this case.
Defendant’s explanation for his conduct was a credibility issue for the jury to assess. Defendant admitted that he saw the police vehicle’s lights, but he was unsure what to do since he was from Simi Valley and not from Montclair. He also said that he was not sure how to react to the lights and sirens. However, defendant’s passenger advised him to stop. Defendant now also seeks to excuse his actions by asserting that he stopped when he was able to find an open parking space; however, defendant said nothing about his parking difficulties at the time of his arrest. In addition, Kim testified that, as Officer Quinteros pursued them, they passed available parking spaces.
Viewing the evidence in the light most favorable to the prosecution, as we must, there was substantial evidence to support the jury’s verdict that defendant violated Vehicle Code section 2800.1, subdivision (a). (People v. Johnson, supra, 26 Cal.3d at p. 576.)
B. Sufficiency of the Evidence of Possession of Firearm Convictions
Defendant next contends there was insufficient evidence to support the jury’s verdict that he committed count 2 (carrying a loaded firearm with a prior felony conviction) (12031, subd. (a)(2)(A)), and count 3 (possession of a firearm with a prior felony conviction) (12021, subd. (a)(1)).
As noted previously in part II.A., ante, in deciding the sufficiency of the evidence, we ask “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 272.) We draw all reasonable inferences in favor of the judgment. (People v. Rodriguez, supra, 20 Cal.4th at pp. 11-12.) We may not reverse defendant’s conviction unless it clearly appears that under no hypothesis whatsoever is there sufficient evidence to support the verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
“The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm. [Citations.] Knowledge is also an element of the offense.” (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) A felony violation of section 12031, subdivision (a)(1) also requires proof of possession of the firearm, as well as knowledge, and is analyzed under the same legal theories as section 12021. (See, e.g., People v. Taylor (1984) 151 Cal.App.3d 432, 436; People v. Hurtado (1996) 47 Cal.App.4th 805, 813-815.)
Defendant argues there is insufficient evidence that he possessed the gun, either actually or constructively. Sections 12021 and 12031 do not require any specific criminal intent; general intent to commit the proscribed act, as set forth in CALJIC No. 3.30, is sufficient. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130; People v. Jeffers, supra, 41 Cal.App.4th at pp. 922.) To prove the possession element of the offense, the prosecution must establish that the defendant had knowledge of the weapon and exercised dominion and control over it, however briefly. (People v. Peña (1999) 74 Cal.App.4th 1078, 1083.) While possession may be actual or constructive, such possession must also be knowing and intentional. (Spirlin, at p. 130; Jeffers, at p. 922.)
A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others. (People v. Peña, supra, 74 Cal.App.4th at pp. 1083-1084; People v. Jeffers, supra, 41 Cal.App.4th at pp. 923-925.) Exclusive possession of the item or the place where it is found is not necessary to show dominion and control. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Dominion and control may be shown by circumstantial evidence and any reasonable inferences to be drawn therefrom. (Id. at pp. 621-622.)
Defendant argues there was no evidence that his fingerprints were found on the gun; that he was the owner of the car; that he had exclusive access to the car or gun; or that he had recently used, possessed, or had “dominion and control” over the gun.
Even though there was a passenger in the car and there was no evidence to show that the car was registered in defendant’s name, the evidence shows that defendant shared dominion and control by driving the vehicle and controlling the area where the gun was found. (People v. Hunt (1963) 221 Cal.App.2d 224, 225- 226 [constructive possession where handgun found on floor next to passenger within driver’s reach]; People v. Nieto (1966) 247 Cal.App.2d 364, 368 [same].) The loaded gun was found in plain view on the floorboard under the driver’s seat. Officer Quinteros testified that he could see the gun while he was standing between the open front passenger door and the seat. Though Kim stated that he never saw defendant with a gun or noticed there was a gun in the car, he testified that he never looked in the direction of defendant’s feet, the car pedals, or the floorboard. In addition, while Officer Quinteros was following defendant, the officer noticed that defendant was repeatedly looking back and “fidget[ing] in his seat” as he continued driving. The jury could reasonably infer from this evidence that he knew of the gun’s presence and constructively possessed the gun. Contrary to defendant’s contention, the prosecution was not required to prove exclusive possession. (People v. Rushing, supra, 209 Cal.App.3d at p. 622.)
Defendant relies on People v. Jeffers, supra, 41 Cal.App.4th 917 in support of his argument. That reliance is misplaced. This is not a case, as was Jeffers, in which defendant lacked wrongful intent because he acquired “possession of a firearm through misfortune or accident, but [he had] no intent to exercise control or to have custody. . . .” (Id. at p. 922.)
When viewed in the light most favorable to the prosecution, the evidence constitutes sufficient evidence of the crimes. (People v. Johnson, supra, 26 Cal.3d at p. 576.) Defendant knowingly had possession, custody, or control of a firearm. (People v. Snyder (1982) 32 Cal.3d 590, 592.)
C. Flight Instruction
Over defendant’s objection, the trial court in this case gave the flight instruction, Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 372.
Defendant contends, and we agree, that it was error for the trial court to instruct the jury that “[i]f the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
“‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” [Citations.] “‘[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.’” [Citations.] “Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 982, quoting People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
The circumstances in this case do not warrant a flight instruction. Defendant committed his crimes while driving his car and thus while already in motion. That he continued to drive while being followed and signaled to stop by Officer Quinteros does not support an inference that defendant fled the scene in order to avoid detection or arrest; he simply continued to drive rather than immediately stop.
However, even if the trial court erred in giving CALCRIM No. 372, that error would require reversal of defendant’s conviction only if it were prejudicial. As defendant acknowledges, the test for prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836, governs error resulting from the trial court’s erroneous instruction on a general principle of law applicable to the case. Under that test, reversal is required only when a review of the entire record establishes a reasonable probability that the error affected the outcome of the case. (People v. Breverman (1998) 19 Cal.4th 142, 178.)
Defendant’s optimistic view notwithstanding, the evidence of his guilt in this case is very strong for the reasons previously discussed in connection with his sufficiency of the evidence arguments. Simply put, it is not reasonably probable the jury would have reached a result more favorable to defendant had the trial court not given CALCRIM No. 372. In addition, “[t]he instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it.” (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183.) The instruction does not overly emphasize the significance of a defendant’s flight, but merely informs the jury that it may give the fact of flight whatever weight it deems appropriate. (See People v. Mendoza (2000) 24 Cal.4th 130, 181 [flight instruction does not unconstitutionally lessen prosecution’s burden of proof].) Moreover, the trial court told the jury that “[s]ome of these instructions may not apply depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” (CALCRIM No. 200, in pertinent part.) The cautionary language in the instructions also benefits defendant because it specifically admonishes the jury that such evidence alone is insufficient to establish guilt. (See People v. Boyette (2002) 29 Cal.4th 381, 438-439.) We perceive no prejudicial error.
D. Imposition of Upper Term on Count 2
At sentencing, the trial court imposed the upper term of three years in prison on the principal count of carrying a loaded firearm with a prior felony conviction based on the following aggravating factors: (1) that defendant had engaged in violent conduct, which indicates a serious danger to society; (2) that defendant’s prior convictions as an adult were numerous and of increasing seriousness; (3) that defendant had served a prior prison term; (4) that defendant was on probation when the crimes were committed; and (4) that defendant’s prior performances on probation were unsatisfactory. The court found one factor in mitigation -- that defendant’s prior performance on parole was satisfactory.
Relying on Cunningham, Blakely, and Apprendi, defendant contends the upper term sentence violates his Sixth Amendment rights because the sentence was based on aggravating factors not reflected in the jury verdict or admitted by defendant.
The People argue that defendant forfeited the error by not objecting at the sentencing hearing. We reject that argument. On June 20, 2005, about a year before defendant’s sentencing hearing in this case, our state Supreme Court concluded that the imposition of an upper term sentence, as provided under California law, was constitutional and does not implicate a defendant’s Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I).) At that time, the trial court was compelled to follow Black I. Therefore, it would have been futile for defense counsel to object at sentencing based on Blakely, Apprendi, or the United States Constitution. Under these circumstances, defendant’s Blakely challenge was not forfeited. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; People v. Turner (1990) 50 Cal.3d 668, 703-704.)
In Cunningham, the United States Supreme Court overruled Black I and held that the middle term in California’s determinate sentencing law was the relevant statutory maximum for the purpose of applying Blakely and Apprendi. (Cunningham, supra,127 S.Ct. at p. 868.) However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] and affirmed in Apprendi: “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488 & 490.) The court explained California’s determinate sentencing law violates Apprendi’s bright-line rule: “Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, at p. 868.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
While this appeal was pending, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court held that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, at pp. 819-820.) The court here relied upon two factors that fall squarely within such an exception: that defendant’s prior convictions were numerous and increasingly serious and that he had served a prior prison term. (See ibid.) It follows that the trial court did not err by imposing the upper term.
E. Correction of Abstract of Judgment
Defendant asserts, and the People correctly concede, that the court’s minute order and the abstract of judgment do not reflect the trial court’s oral pronouncement that defendant’s sentence on count 3 (possession of a firearm with a prior felony conviction (§ 12021, subd. (a)(1)) was stayed, pending successful completion of his prison term, pursuant to section 654. We therefore order the abstract of judgment and the court’s minute order corrected to properly reflect the sentence imposed. (People v. Jenkins (2001) 86 Cal.App.4th 699, 702, 707-708.)
III
DISPOSITION
The trial court is directed to prepare an amended minute order and abstract of judgment in accordance with this opinion and to forward the abstract of judgment to the appropriate prison authorities. In all other respects, the judgment is affirmed.
We concur: GAUT, J., KING, J.