Opinion
A095924.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES WASHINGTON, Defendant and Appellant.
Appellant James Washington was convicted after jury trial of the crime of being a felon in possession of a firearm. (Pen. Code, § 12021, subd. (a).) In a bifurcated portion of the jury trial, six prior felony convictions were found true, three of which were charged as convictions for which appellant had served a prison term, and three of which qualified as "strikes" under the terms of the three strikes law. (Pen. Code, §§ 667.5, subd. (b), 667, subd. (e)(2), 1170.12, subd. (c)(2)(A).) Appellant was sentenced to a total prison term of 28 years to life.
Appellant maintains his conviction and sentence must be reversed because: (1) errors by his trial counsel and the court allowed the introduction of prejudicial evidence of other criminal activities before the jury; (2) an additional jury instruction on unanimity was required to be given by the trial court, sua sponte; (3) the trial court did not properly instruct the jury sua sponte as to the element of intent in constructive possession; (4) trial counsel was ineffective in failing to object to certain opinion testimony; (5) the search warrant for the residence where the firearm was seized was defective; (6) prejudicial errors occurred during the bifurcated jury trial of the prior convictions; and (7) his prison sentence constitutes cruel and unusual punishment.
I. FACTS AND PROCEDURAL HISTORY
Warner Smith became appellants parole officer in 1996. While appellant was on parole, he was told that both he and his residence would be subject to search without a search warrant; he was subject to drug testing; and he could not possess weapons including firearms. Appellant indicated he would be living with his father on Holly Street in Oakland, and Smith met with appellant at that location shortly after he was paroled, testing him for illegal drugs. Appellant always passed the agents drug testing.
Later, appellant advised Smith he would be spending a few nights a week with his girlfriend Lisa Lewis (Lewis) who lived on Cary Court in Oakland. Appellant never told Smith that he had moved into the Cary Court residence, although Smith suspected this was the case.
In October of 1998, Smith was contacted by members of the San Francisco Police Department. The officers were interested in conducting a search of appellants residence, as he was suspected of committing a crime in San Francisco. Smith contacted appellant and, without telling appellant that a search was being contemplated, asked if he was living with Lewis at Cary Court. In the tape recorded phone call, appellant admitted he was now living with Lewis at the Cary Court address. Smith then authorized a parole search of the Cary Court residence.
The officers feared appellant might be armed. For purposes of officer safety during the search, appellant was called into Smiths office for a routine appointment, and the search at Cary Court was conducted while he was at that location.
Inspector Anthony Camilleri (Camilleri), who was employed by the San Francisco Police Department, carried out the search of appellants residence at Cary Court. Camilleri did not rely solely on the authorization from Smith to conduct a parole search; he also obtained a search warrant for the Cary Court residence, which he served in the company of other officers on October 28, 1998, at about 11:20 a.m. When the officers knocked on the front door, Lewis answered, and she let them in. The only other person present was a small child, appellants daughter.
The officers recovered numerous items of evidence which indicated appellant lived at the premises, including a phone bill in his name addressed to the Cary Court address, and appellants calendar year 1989 address book, both of which were in the master bedroom. The officers also found a traffic citation dating back to the previous April, which had been addressed to appellant at his fathers Holly Street residence, and various other items belonging to him. Further, a box of Remington . 38-caliber ammunition was located in a nylon pouch on a shelf in a closet of the master bedroom. The pouch also contained an envelope bearing the name of appellants friend, George Fitzpatrick. Inside the envelope was a copy of a drivers license and social security card of Charles Morris. The bedroom also contained adult male clothing and a stolen laptop computer. A firearm, a two-shot .38-caliber Derringer handgun, was retrieved from under the mattress of the bed in the master bedroom. The weapon was not loaded.
Camilleri later interviewed Lewis, after she agreed to speak with him at the Oakland Police Department. Camilleri told Lewis she was not under arrest, and was free to leave. Lewis told Camilleri that appellant had been living at Cary Court for several months, and was the only adult male living with her. At trial a redacted tape of this interview was played, in which Lewis said she did not know the gun was under her bed, and it could only have gotten there because appellant put it there. Lewis also stated that appellants friend George Fitzpatrick had damaged one of appellants cars in a chase.
Camilleri also interviewed appellant, after advising him of his Miranda rights. Appellant identified his calendar address book, and discussed a number of friends who had visited him at his Cary Court residence, including George Fitzpatrick, who had been driving a Hyundai car loaned to him by appellant when it was wrecked following a high speed chase.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (Miranda).
Captain David Gingery (Gingery), Alameda County District Attorneys office, was assigned to perform investigative work on appellants case in October 1998. Gingery also helped serve the search warrant at Cary Court. He found the .38-caliber two-shot Derringer handgun in the master bedroom, under the mattress. At trial, Gingery opined that this type of gun is small and easily concealable, and is only accurate at close range; this general type of gun is cheap, mass-produced, and relatively common. On cross-examination, Gingery testified he could not recall if he had ever heard this type of gun identified as a "ladys gun." He added the fact this type of gun was often used by criminals, because it was easily concealable.
Inspector Raymond Conner of the Alameda County District Attorneys office also assisted in the search at Cary Court, as well as with the interviews of appellant and Lewis. Appellant told Conner he lived at Cary Court where he entertained friends such as George Fitzpatrick. He also worked on cars at that location, including the Kia automobile appellant had loaned to George Fitzpatrick, which had been wrecked in a high speed chase following an armed robbery. A newspaper article covering that incident was located at the Cary Court residence, in the master bedroom, rolled up inside some clothing in the closet. Appellant also told Conner the handgun found under the mattress belonged to Lewis, admitting that he had seen the gun previously.
Deputy Joseph Stewart of the Alameda County Sheriffs office explained to appellant that his telephone calls while in custody at the Alameda County jail were subject to being monitored and recorded, with the exception of calls to attorneys. Persons making a call from the jail are also reminded of this recording by a prerecorded preamble before the call is placed.
Inspector Conner was familiar with the procedure for the monitoring or taping of telephone calls placed from the jail facility, and had requested that appellants calls to Lewis, as well as his jailhouse visits with her, should be monitored and taped. In the various taped conversations, appellant and Lewis made comments indicating they were well aware they were being taped. Consequently, they used "guarded" language, such as referring to a gun as a "thing." Appellant instructed Lewis what she should say in order to provide him with a defense, suggesting Lewis should testify he had not been a resident of her home and had been merely staying or visiting there on an occasional basis. He also encouraged Lewis to testify the police had mistreated her, and that they had intimidated her into saying the gun under the mattress belonged to appellant. Appellant suggested Lewis should say she had been confused as between the .38-caliber Derringer found under the mattress and another gun, a .22-caliber handgun, which appellant had previously possessed. These taped conversations were played for the jury.
Regarding the .38-caliber Derringer, the taped conversations revealed that appellant directed Lewis to either say the gun belonged to her, or belonged to appellants friend Ron Young, or belonged to Rons wife Pam Young, or belonged to Ron Youngs mother, Mildred Thompson. Lewis was to explain her prior inconsistent statements to the police as being the result of police pressure or fear that she could lose her federally subsidized section eight housing by admitting ownership of the gun.
Detective Curtis Selseth of the Piedmont Police Department, who assisted in the service of the Cary Court search warrant and subsequent interviews of Lewis and appellant, confirmed the recovery of a silver .38-caliber Derringer handgun with an ivory handle from under the mattress in the master bedroom, and that .38-caliber ammunition was located in the closet of the master bedroom. Wrapped up in a mans jumpsuit in the closet of the master bedroom, Selseth discovered the newspaper clipping concerning George Fitzpatrick, who had been arrested after an armed robbery and a high speed chase. Selseth described the closet in which these items were found as containing primarily male clothing.
Appellant had admitted to Selseth that he lived at Cary Court, until the subject of the gun came up, at which point appellant said he only lived there off and on. Asking appellant about the gun, Selseth was told that it belonged to Lewis but that appellant knew it was there since he had seen it under the mattress on several occasions. When Selseth indicated that appellants knowledge showed possession, appellant agreed it was a parole violation to be present where the gun was located, although appellant never acknowledged handling the gun.
Oakland Police Officer James Gant (Gant) was assigned to a task force directed against gang-related crimes. The prosecution offered Gant as an expert in the field of narcotics and dangerous drugs. He was asked to explain the meaning of various words of jargon or street language used in the trafficking of controlled substances. Gant, who had listened to the taped jailhouse conversations of appellant and Lewis, opined that the two were plotting to persuade other persons to support their story about the "thing" or gun, and were suggesting that these other persons should be offered illegal drugs (again referred to as "thing") in return for their testimony.
Lisa Lewis, who tried to marry appellant while he awaited trial, began a romantic relationship with him in 1997. According to her testimony, appellant started staying at the Cary Court residence four or five days a week starting in January of 1998; he kept his clothing, tools, and cars there.
Lewis claimed the police did not treat her well, and she felt intimidated by the police interviews. In the first taped interview, Lewis told the police she didnt know whose gun it was. However, referring to appellant in the second taped interview, Lewis said the gun "didnt belong to me and my kids, so he would have to put it there." She denied knowledge of the .38-caliber ammunition in the closet.
Lewis conceded appellant told her to give cocaine to Ron Young in order to secure testimony that the gun belonged to him, but that plan fell through; she did not initially tell the police her current version of these events; and appellant had referred to passages from the Bible indicating she should submit to his will. While Lewis and appellant had discussed "trial preparation" issues, she claimed he had not coached her about what to say in court. Lewis denied appellant had obtained the Derringer from the Youngs in exchange for money or narcotics. Rather, Pam Young gave the Derringer to Lewis, in pawn as collateral for a loan, allegedly to feed Youngs children. Lewis then placed it under the mattress, and told appellant what had happened. Later, when appellant was hiding some money under the mattress, he saw the gun.
Lewis testified she did not know anything about guns, and did not even know if the gun was loaded when she put it under the mattress, although her children were in the house. She recalled an incident a few months earlier, in June 1998, when a gun was discharged inside the home, which had made her very angry. On that occasion, Lewis was awakened in the early morning hours by the sound of a gunshot. She got up and saw appellant and two of his friends, Lawrence Coelho and Timothy Epps, sitting around a table. On the table was a gun which was not the Derringer. Lewis was angry and asked who fired the gun, but no one said anything. Appellant and his friends just smiled and laughed.
Lewis explained that she did not believe it was illegal for her to possess the Derringer, but she was concerned about her section eight housing, if it came to light that she possessed the gun. For this reason, she did not tell the police the gun was hers. At the same time, Lewis told the authorities the stolen laptop computer found in her home had been obtained from a thief who was now in prison.
Other defense witnesses offered the following testimony.
Appellants father, Alfred Washington, lived on Holly Street in Oakland. Washington testified that his son resided with him until he met Lewis, when he then began spending some nights with her.
Mildred Thompson recognized the Derringer handgun, since it had belonged to her deceased husband and she inherited it from him. She gave it to her son, Ron Young, who was married to Pam Young. Thompson later learned the Derringer had been pawned to a "lady."
James Edwards, appellants nephew, often saw appellant at his fathers residence on Holly Street. Less often, he would see appellant at Cary Court.
Donald Young was in the company of his sister-in-law, Pam Young, when she drove over to Cary Court one day in October 1998. He watched as she took a gun out of the glove compartment of the car, and she took it inside the Cary Court home. Young acknowledged having suffered three felony convictions.
II. DISCUSSION
A. EVIDENTIARY ISSUES AND CLAIMED INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant first maintains his trial counsel was ineffective in failing to challenge the admission of six instances of miscellaneous criminal activity that was brought before the jury. Appellant acknowledges that no objections were interposed to almost all of the testimony on these topics. He contends in his direct appeal, and in his associated petition for habeas corpus, that his trial counsel was ineffective for failing to object.
By separate order filed this date, appellants petition for habeas corpus is denied.
Appellant bears the burden of showing that his trial counsels performance in failing to object fell below an objective standard of reasonableness under prevailing professional norms and, most critically, that the challenged acts or omissions of counsel were prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 692, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) An assessment of counsels performance should not be made with the distorting effects of hindsight, but rather should evaluate counsels performance at the time of the claimed errors, and in light of all the circumstances. (Id. at p. 689.) Moreover, there is a strong presumption that counsels representation was adequate, and a defendant must show there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (Id . at p. 694.) A reasonable probability "is a probability sufficient to undermine confidence in the outcome." (Ibid.; In re Harris (1993) 5 Cal.4th 813, 832-833, 855 P.2d 391 (Harris ).)
Any claim of prejudice from trial counsels ineffective assistance in failing to voice evidentiary objections would founder on the fact that the unchallenged evidence regarding appellants guilt as to the firearm possession charge was compelling. The Derringer was found under the mattress of a bed in the bedroom where appellant admittedly slept most nights. By his own statement, appellant knew where the Derringer was located, because he had seen it while hiding money under the mattress. A box of .38-caliber ammunition fitting the Derringer was found, together with clothing and personal effects tied to appellant, in the closet of the same bedroom. Appellants defense was based, in part, on the implausible and conflicting testimony of his girlfriend, Lewis. His cause was further undermined by jailhouse recordings in which appellant instructed his girlfriend what to say, even advising her to supply cocaine to others in order to procure their favorable testimony. Although these potential witnesses were not called to testify, appellants apparent effort to fabricate evidence was a forceful circumstance evidencing a consciousness of guilt. (CALJIC No. 2.04.) Given the considerable evidence of his guilt, the alleged evidentiary errors now raised by appellant appear inconsequential and harmless, as we discuss in more detail below.
1. Brief, Tangential References to the San Francisco and Piedmont Investigations
The trial court, when addressing certain other issues before trial, such as the validity of the search warrant for Cary Court and the tape recorded jailhouse statements of appellant, observed that evidence regarding the commission of the San Francisco homicide and Piedmont crimes should not be placed before the jury.
Although there was no formal motion in limine or objection from the defense, the prosecution sought pretrial guidance as to how it should identify the employment of the officers at various city police departments. As the court pointed out, the fact that numerous officers from other jurisdictions were involved could not be hidden from the jury, and it could not and would not direct the officers to falsify the nature of their employment: "Im not about to have the officers in effect falsify their employment in order to conceal what agency it involves. I dont think thats ever appropriate." Further, the court added: "with Inspector Camilleri and Inspector Casillas, if you call them, you should not point or ask them, have him respond that hes now a homicide inspector. You can say that he was an inspector for the homicide." (Italics added.) Otherwise, evidence of appellants involvement in the San Francisco homicide or the Piedmont rape-robbery was precluded.
No evidence regarding the commission of these other crimes, or appellants alleged involvement in them, was ever placed before the jury. Testimony disclosed that the search at Cary Court and ensuing interviews of Lewis and appellant were carried out by officers from San Francisco, Piedmont, and Oakland, and that these agencies had been investigating a homicide in San Francisco, and a rape and a robbery in Piedmont. Also, for officer safety, it was explained that the search warrant was served at a time when officers knew appellant would not be present, since they feared he might be armed. Appellant now argues that the foregoing testimony in effect told jurors that he was a dangerous person who was suspected of committing crimes in other jurisdictions.
Appellant concedes no contemporaneous objection was made at trial, but he suggests an objection was made to such evidence in limine, prior to trial. We cannot find in the record any motion in limine that addresses this evidence, and appellant cites none. Appellant instead attempts to stitch together isolated comments by his trial counsel, to show that analogous issues were brought up during pretrial proceedings involving other evidentiary matters.
For example, appellant points out that his trial counsel, in pretrial proceedings, voiced the following concern: "I feel Im here defending several different cases although [appellant is] only charged with an ex-felon with a gun." However, this particular comment was not related to the crimes which were under investigation by the various police departments, but instead to counsels concern over a perceived ambiguity in his clients taped statement. This is evident from the following related excerpt from the reporters transcript: "And which gun are we talking about? The Deringer [sic]? . . . Are we talking about the gun that was used to shoot at the floor? I mean, what gun are we talking about?" Also, while discussing the admissibility of other portions of the taped conversations between his client and Lewis, defense trial counsel alluded to a particular "problem": "the problem with this case is its constantly intertwined and interlaced with the San Francisco case." Having brought this concern to the courts attention, appellant never sought further rulings to address the testimony now under discussion.
Defense counsels comments do not substitute for a timely and specific objection challenging the admissibility of the evidence now questioned on appeal. And, even if appellant had brought a pretrial motion in limine to exclude the evidence he now challenges, that would not necessarily eliminate the requirement of a contemporaneous objection to preserve the issue for appeal. (People v. Morris (1991) 53 Cal.3d 152, 189, 279 Cal. Rptr. 720, 807 P.2d 949 (Morris); People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3, 251 Cal. Rptr. 278, 760 P.2d 475.) A motion in limine may only substitute for a timely objection if it advances the specific legal ground for exclusion which is later raised on appeal, if the motion is directed to a specific identifiable body of evidence, and if the motion is made at a time when the trial judge can evaluate the evidentiary issue in its appropriate context. (Morris, supra, at p. 190.)
Because defense counsels pretrial comments did not challenge the specific evidence now complained of-references to officer safety or the participation by officers from other police departments in the search at Cary Court-and no timely objection was made at trial, appellant has waived these issues on appeal. (Evid. Code, § 353; People v. Rowland (1992) 4 Cal.4th 238, 259, 841 P.2d 897; cf. also Morris, supra, at pp. 187-190 [Pretrial objection must be made to the same particular evidence introduced at trial, in order to properly preserve the issue on appeal.].)
Appellant next argues that his trial counsel was ineffective for failure to make such a motion in limine or objection. However, we are not persuaded by appellants present arguments that the testimony concerning officer safety, or the participation of officers from different police agencies in the search at Cary Court, was improper or prejudicial. As mentioned, evidence was admitted that the officers feared appellant might be armed and he was therefore asked to report to his parole officer when the search warrant was to be served. This evidence has some probative value, for the prosecution was entitled to show the officers had legitimate reasons related to officer safety which caused them to lure appellant away from the Cary Court address at the time of the search, and this was not part of some untoward effort to intimidate Lewis into implicating appellant as the defense implied. We therefore conclude that trial counsel was not ineffective in failing to timely object to such evidence. (Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
Appellant argues in his reply brief that any concern for officer safety was "spurious" because the "search warrant obtained for 36 Cary Court did not list a gun among items to be seized." (Underscoring in original.) However, the search warrant listed among the items being sought "indicia of gun possession," which would suggest the police feared appellant might be armed. Further, the San Francisco homicide had been perpetrated by use of a firearm, and the officers were validly concerned for their own safety.
Similarly, testimony disclosing that officers from various jurisdictions participated in the search and subsequent interviews, because appellant had been suspected of crimes in those other jurisdictions, was simply a fact that could not reasonably be concealed from jurors. The court had precluded any evidence of appellants possible involvement in the San Francisco homicide or the Piedmont rape-robbery, but this ruling did not bar officers Camilleri and Casillas from identifying the nature of their employment at the time, such as identifying themselves as "homicide" inspectors.
We do not mean to imply that such evidence did not exist, only that it was not presented to this jury.
Under the circumstances, we do not find the disclosure of the officers employment or mere references to other uncharged criminal offenses particularly inflammatory. The prosecution never suggested the uncharged crimes were committed by appellant, or should be used to infer appellants guilt as to the firearm charge, and there was in fact no testimony as to the details of these offenses. About the most that can be said is that jurors may have surmised appellant was a suspect in crimes committed in other jurisdictions, but that he had not been charged with those crimes, and no evidence linking him to such crimes was discovered in the search and interviews. The present case resembles People v. Champion (1995) 9 Cal.4th 879, 919, 891 P.2d 93 (Champion), in which our Supreme Court held that evidence of the occurrence of an uncharged homicide was harmless, because no evidence was admitted showing the defendant was in fact responsible for that offense. In Champion, the defendants were on trial for various murders, robberies, burglaries, and other crimes. The prosecution presented evidence that another, uncharged homicide (of Jefferson) had taken place at around the time and in the vicinity of the charged homicides. Although the defendants were apparently suspected of that murder, no evidence was presented actually linking them to the Jefferson homicide. (Id . at pp. 917-919.)
On appeal, the defendants claimed evidence of the uncharged Jefferson homicide should not have been admitted. The Supreme Court ruled this claim of error was waived because there had been no contemporaneous objection. The court also observed the claimed error was, in any event, harmless: "Assuming for the sake of argument that we may consider the issue, we find any error in admitting the evidence of Jeffersons death to be harmless. As defendants themselves point out, the prosecution offered no evidence directly connecting defendants to Jeffersons death. Thus, it seems unlikely that the jury gave the evidence substantial weight. We conclude there is no reasonable probability that the outcome of the trial would have been different if the trial court had excluded the evidence of Jeffersons murder." (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 [(Watson )].)" (Champion, supra, at p. 919.)
Appellant attempts to distinguish Champion on a number of grounds. First, he points out that no timely objection was ever made when evidence of the uncharged Jefferson homicide was introduced. But, the same is also true here, as we have discussed. Appellant also argues, without any citation to the record, "Unlike Champion, there was an abundance of testimony and documentary evidence connecting Washington to the homicide and rape-robbery." (Underscoring in original.) Our review of the entire record available to the jury reveals that no evidence was introduced as to appellants possible involvement in either the San Francisco homicide or the Piedmont rape-robbery. Appellant further claims that evidence of the defendants guilt in Champion was compelling and thus the courts harmless error analysis was apt. But the same is also true in the present case, as we have discussed. Thus, we find Champion to be persuasive authority.
In these circumstances, we find no prejudicial ineffectiveness in trial counsels failure to make contemporaneous objections to this testimony at the time of trial. (See People v. Robertson (1982) 33 Cal.3d 21, 42, 188 Cal. Rptr. 77, 655 P.2d 279; Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692; see also Champion, supra, 9 Cal.4th at p. 919.)
2. Evidence Regarding the .38-caliber Ammunition, and Other Guns
As previously mentioned, evidence was received at trial that tended to establish appellant possessed the .38-caliber ammunition recovered from the closet of the master bedroom at Cary Court, and that another gun was either fired by him or fired in his presence inside the home on a previous occasion. Appellant now contends this evidence should have been excluded, and his trial counsel was ineffective for failing to challenge its admission.
Appellants trial counsel was not ineffective in failing to exclude evidence as to the ammunition. The recovery of the . 38-caliber ammunition was clearly relevant evidence as to the charged crime since the ammunition fit the gun appellant was charged with possessing, the ammunition was found in the same room as the gun, and appellant was an occupant of that room. Any objection to the introduction of such evidence would have been futile; appellant cannot demonstrate prejudice from the failure to make such an objection. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
Evidence regarding the apparently accidental firing of a gun at Cary Court in June 1998, a few months before the October search, was relevant to challenge the plausibility of Lewiss version that she had placed the Derringer under her bed without even checking to determine if it was loaded, even though she was previously angered when a gun was accidentally fired in her home. Also, the taped jail conversations in which appellant discussed with Lewis concocting a defense, showed that he sought to encourage Lewis to tell the police that she had been confused as between the Derringer and a .22-caliber handgun that she had previously possessed before disposing of it. Appellants efforts to fabricate a defense tend to show a consciousness of guilt, constituting relevant admissible evidence. (Evid. Code, §§ 210, 351.)
In a related contention, appellant now claims it was improper for the prosecution to question Captain Gingery regarding the fact that the Derringer was a type of deadly weapon commonly used by criminals and drug dealers. Appellant made no contemporaneous objection, and he therefore waived his right to challenge the admissibility of such testimony on appeal. (Evid. Code, § 353.) As to appellants claims of ineffective assistance in failing to object, we find no ineffectiveness and no prejudice. Trial counsel sought to insinuate through questioning that the Derringer was a "ladys gun" such as might be lawfully possessed by a female to defend herself. In this manner, the defense sought to link the gun to Lewis, Pam Young, and Mildred Thompson, who were all females, unlike appellant. The prosecution, by contrast, attempted to show by its questioning that guns of this type are not uniquely used by females for defensive purposes, but were frequently unlawfully possessed by others. Because Gingerys testimony on this point was designed to counter this defense tactic, it is improbable that an objection to this prosecution line of questioning would have been sustained. Thus, we find no ineffectiveness by defense counsel or prejudice. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
3. Officer Gants Service in a Police Unit Directed Against Gangs
As previously mentioned, Officer James Gant of the Oakland Police Department testified he worked as part of a task force directed against gang-related crimes. He qualified as an expert in the area of narcotics and dangerous drugs. Appellant claims this reference to Gants employment in a gangs task force was error, because it suggested appellant was a gang member.
No such objection was made at trial. Appellants claim is waived. (Evid. Code, § 353.) Although appellant raises this issue as a question of ineffective assistance, we again find no ineffectiveness and no prejudice. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.) Gant was merely recounting his employment, which was relevant to his expertise; there was no contention or evidence that appellant was a gang member or that Cary Court or the Derringer had any gang connections.
4. Illegal Drug Activity
Appellant next contends evidence of his involvement with illegal drugs was erroneously brought before the jury. One of the courts pretrial rulings barred any generalized evidence that appellant was running an illegal drug sales operation at Cary Court, unless such evidence was relevant to show fabrication of testimony. However, the court permitted the prosecution to present evidence that appellant had instructed Lewis to offer rock cocaine to Ron Young in return for favorable testimony. Lewis then testified appellant told her to give cocaine to Ron Young in order to secure his testimony that the gun belonged to Young.
A trial court has discretion to exclude otherwise admissible evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.) Since evidence regarding other crimes may be highly inflammatory, its admissibility " should be scrutinized with great care. [Citation.] [Citation.]" (People v. Medina (1995) 11 Cal.4th 694, 748, 906 P.2d 2.) The following relevant factors must be considered in determining whether the prejudicial effect of such evidence outweighs its probative value: whether the inference created by the evidence is strong; whether the source of evidence concerning the present offense is independent of and unaffected by information about the evidence; the comparative inflammatory nature of the evidence; and the remoteness in time of the evidence. (People v. Ewoldt (1994) 7 Cal.4th 380, 404-405, 867 P.2d 757; People v. Dancer (1996) 45 Cal.App.4th 1677, 1690, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123, 938 P.2d 986.) The trial courts "exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value." (People v. Karis (1988) 46 Cal.3d 612, 637, 250 Cal. Rptr. 659, 758 P.2d 1189; see also People v. Frye (1998) 18 Cal.4th 894, 945, 959 P.2d 183.)
Here, the trial court exercised its discretion to exclude evidence that appellant and Lewis were involved in drug dealing, but permitted more specific evidence regarding their discussion about offering illegal drugs to witnesses in order to obtain favorable testimony. As this evidence was relevant to show appellants effort to procure favorable testimony, and as showing consciousness of guilt, it was properly admitted.
5. The Stolen Laptop Computer
In searching the Cary Court residence the police recovered a laptop computer that turned out to be stolen. The trial court allowed the prosecution to impeach Lewis with her own statements to the effect that she possessed the stolen laptop. This testimony had relevance, because it cast doubt on the veracity of Lewiss alleged concerns over losing her subsidized housing if she owned a gun-and yet she harbored no similar concerns in telling the police that the stolen laptop computer recovered in her home had been obtained from a thief who was now in prison.
Appellant maintains this evidence was not relevant for impeachment. However, as the prosecutor explained in closing argument, if Lewis had really been so concerned about losing her section eight housing that she lied about her ownership of a gun she could lawfully possess, it was surprising that she would admit knowledge of the stolen property in her home without any concern about an effect on her section eight housing. It was not an abuse of discretion to admit such relevant evidence. (Evid. Code, §§ 210, 351.)
6. Evidence Regarding Appellants Friends and Their Criminal Activities
Finally, appellant contends irrelevant evidence as to his friends and their dangerous or criminal activities was introduced by the prosecution, which tended to show that appellant himself was dangerous. Appellant refers specifically to the article concerning his friend George Fitzpatrick that was found in the closet with the .38-caliber ammunition. The article referred to Fitzpatricks capture after a high speed chase in appellants car, which was damaged and was later repaired at Cary Court. However, the newspaper clipping about appellants friend who had wrecked one of appellants cars was relevant to prove that the ammunition was more likely possessed by appellant. As explained, ante, evidence as to the ammunition was highly probative as to possession of the Derringer, since the ammunition fit the Derringer and was recovered in the same room.
Appellant also alludes to Lewiss statement that she witnessed him sitting around a table in her home with two friends, Coelho and Epps, while a recently fired gun (not the Derringer) was on the table. As we have explained, the admission of this evidence was relevant for impeachment of Lewis. Also, the fact that appellants friends were present tended to diminish any prejudicial effect, since their presence undermined the inference that appellant was the only person who could have possessed and fired the other gun on that occasion.
In the final analysis, we conclude there were no evidentiary errors, and trial counsel was not prejudicially ineffective. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
Appellant also suggests that some or all of this evidence should have been the subject of a "limiting instruction." This claim was waived in the trial court, because no such limiting instruction was requested. It was also waived on appeal, inasmuch as appellants scattered references in his briefing do not specify the wording of any such required "limiting instruction," or the specific evidence to which it might related In addition, appellant has not argued or demonstrated that the absence of a limiting instruction was prejudicial, or that his trial counsel was ineffective in not seeking such an instruction. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
B. CLAIMED NEED FOR A SUA SPONTE UNANIMITY INSTRUCTION
Next, appellant asserts a sua sponte unanimity instruction was necessary to insure that he would only be convicted for possessing the Derringer, as opposed to another firearm which was discharged at the Cary Court residence several months earlier.
"A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses." (People v. Beardslee (1991) 53 Cal.3d 68, 92, 279 Cal. Rptr. 276, 806 P.2d 1311 (Beardslee).) "When the evidence tends to show a larger number of distinct violations of the charged crime than have been charged and the prosecution has not elected a specific criminal act or event upon which it will rely for each allegation, the court must instruct the jury on the need for unanimous agreement on the distinct criminal act or event supporting each charge." (People v. Avina (1993) 14 Cal.App.4th 1303, 1309.)
Under the facts of this case, the mentioning of more than one gun at Cary Court did not require a unanimity instruction. (See People v. Crawford (1982) 131 Cal. App. 3d 591, 599, 182 Cal. Rptr. 536 (Crawford); People v. Wright (1968) 268 Cal. App. 2d 196, 198, 73 Cal. Rptr. 692.) In Crawford, the court held that a unanimity instruction was required to sustain a conviction of ex-felon with a firearm where four firearms were found in his home, and the acts of possession were not factually identical. The Crawford court found that possession, while not fragmented as to time, was fragmented as to space, because guns were located in different parts of the home. There were also unique facts involving the possessory aspect of each weapon, in that Crawford denied ownership of his housemates two guns and a third gun found in his closet, and testified that he had never seen the holstered gun recovered at the foot of his bed. (Crawford, supra, at pp. 595, 599.) The court pointed out that where criminal acts are substantially identical in nature so that a juror who believed one act took place "would inexorably believe all acts took place," the unanimity instruction is not necessary for the jurys resolution of the case. (Crawford, supra, at p. 599.)
Crawford is consistent with the general rule that only in those instances where the evidence indicates jurors could disagree as to the particular act that a defendant committed must the trial judge give the unanimity instruction. (People v. Brown (1996) 42 Cal.App.4th 1493, 1500.) Or, put another way: "A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. . . . The possibility of disagreement exists where the defendant is accused of a number of unrelated incidents, such as alleged rapes at different times or places, leaving the jurors free to believe different parts of the testimony and yet convict the defendant. [Citations.] . . . [P] If under the evidence presented such disagreement is not reasonably possible, the instruction is unnecessary." (People v. Gonzalez (1983) 141 Cal. App. 3d 786, 791-792, 190 Cal. Rptr. 554, accord, Beardslee, supra, 53 Cal.3d at p. 93; cf. People v. Gavin (1971) 21 Cal. App. 3d 408, 418, 98 Cal. Rptr. 518 [Where the defendant possessed guns on two different occasions within a period of one month, and the jury expressed confusion as to which act of possession was in issue, the court should have instructed jury that defendant was only on trial for the latter possession.].)
It is apparent from the information and the verdict form signed by the jury foreperson that appellant was accused of possessing only the Derringer, "on or about the 28th day of October, 1998," which was the date the search warrant was executed at Cary Court. Although there was some evidence suggesting appellant had possessed other guns at other times, such as the gun seen by Lewis on the table about four months previously, his possession of any such weapons was not charged in the information; the prosecutor did not argue that appellant could be convicted for possessing a gun other than the Derringer; and the jury never indicated any confusion in this regard. Under these circumstances, only one offense was in issue, and a sua sponte instruction requiring that jurors be unanimous as to the particular weapon involved was not required.
For similar reasons, the absence of such an instruction could not have been prejudicial. The failure to give a unanimity instruction is harmless if disagreement among the jurors concerning the different specific acts proved is not reasonably possible. (People v. Burns (1987) 196 Cal. App. 3d 1440, 1458, 242 Cal. Rptr. 573; accord, People v. Brown (1996) 42 Cal.App.4th 1493, 1500-1502; see also People v. Stankewitz (1990) 51 Cal.3d 72, 100, 270 Cal. Rptr. 817, 793 P.2d 23.) It is inconceivable that a reasonable juror who voted to convict appellant based on weak evidence showing appellant was in the presence of another gun months earlier would not also have credited the much more compelling evidence that he possessed the Derringer on the date charged in the information.
For the same reason, we reject appellants claim that the failure to request such an instruction constituted prejudicial ineffectiveness of trial counsel.
C. CLAIMED NEED FOR SUA SPONTE INSTRUCTION ON INTENT TO CONSTRUCTIVELY POSSESS A FIREARM
Similarly, appellant contends the trial court should have more fully instructed sua sponte on the intent required for constructive possession of a firearm.
Penal Code section 12021, subdivision (a)(1), provides in pertinent part: "Any person who has been convicted of a felony . . . who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." The crime of being an ex-felon with a firearm is thus committed whenever the felon has a firearm in his control. Possession may be actual or constructive. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084 (Pena).) A defendant may have constructive possession of a firearm that is not in his physical possession, but over which he knowingly exercises control or the right to control. (Pena, supra, 74 Cal.App.4th at pp. 1083-1084.) Exclusive possession of the firearm or of the place where it is found is not necessary to show dominion and control. (People v. Rushing (1989) 209 Cal. App. 3d 618, 622, 257 Cal. Rptr. 286.) Dominion and control may be shown by circumstantial evidence, and any reasonable inferences to be drawn therefrom. (People v. Williams (1971) 5 Cal.3d 211, 215, 95 Cal. Rptr. 530, 485 P.2d 1146.) The inference of dominion and control is more easily made when the firearm is discovered in a place over which the defendant has general dominion and control, such as his residence (see, e.g., People v. Neese (1969) 272 Cal. App. 2d 235, 77 Cal. Rptr. 314) or his personal effects (see, e.g., People v. Pearson (1957) 150 Cal. App. 2d 811, 311 P.2d 142).
The trial court in the present case gave the standard instruction on constructive possession, CALJIC No. 12.44: "Constructive possession does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. [P] One person may have possession alone, or two or more persons together may share actual or constructive possession." (CALJIC No. 12.44, italics added.) The trial court also instructed in the language of CALJIC No. 12.44 as to the elements required to make a finding of possession of a firearm by a felon: "In order to prove this crime, each of the following elements must be proved: [P] The defendant had in his possession or had under his control a firearm; and [P] The defendant had knowledge of the presence of the firearm." (CALJIC No. 12.44.) The court also instructed the jury using CALJIC No. 3.30 on general criminal intent, which requires that a defendant must "intentionally do[] that which the law declares to be a crime."
Relying on People v. Jeffers (1996) 41 Cal.App.4th 917, 922 (Jeffers), appellant argues the jury instructions were inadequate because they permitted the jury to find guilt without the requirement that he knowingly exercised the right to control the gun. His reliance on Jeffers is misplaced. In Jeffers, the trial court was ruled to have committed instructional error in declining to give the defendants pinpoint instruction that he had no knowledge he possessed of a gun. (Jeffers, supra , 41 Cal.App.4th at pp. 923-925.) Jeffers claimed to have no knowledge of a gun that was recovered inside a bag he was asked to deliver. (Id. at p. 921.) Under these circumstances, the failure to give a general intent instruction was found to have deprived Jeffers of his defense, namely that his temporary possession of the gun was unintentional. (Id . at pp. 924-925; see also People v. Gonzales (1999) 74 Cal.App.4th 382, 390-391 [Trial court should have instructed sua sponte on accident where the defense relied on such a theory in a case alleging domestic violence.].)
We find the Jeffers holding as irrelevant to the present appeal. Appellant did not claim he unintentionally possessed the Derringer, but simply argued that he did not possess it at all, and that the gun belonged to Lewis. As we have discussed, his defense was severely undermined by the proximity of the gun, ammunition, and indicia in the bedroom. Appellants defense was further compromised by Lewiss inconsistent and implausible out of court statements and testimony. His argument ignores the fact that the jury was instructed as to the elements of intent, possession, control, and knowledge. And finally, the jury received the standard instruction that it "consider the instructions as a whole and each in light of all the others." (CALJIC No. 1.01.) We must presume that the jury understood and correlated all the instructions it was given. (People v. Kegler (1987) 197 Cal. App. 3d 72, 80, 242 Cal. Rptr. 897.)
The instructions as given, and the arguments of counsel, stressed that appellant must have knowingly exercised control over the firearm. The trial court did not err in failing to give an additional instruction on intent to constructively possess, sua sponte.
D. PROSECUTORS STATEMENTS IN CLOSING ARGUMENT
In a somewhat related contention, appellant contends the prosecutor erred in his closing argument by misleading the jury as to the intent necessary for constructive possession of a firearm. He also contends his trial counsel was ineffective for failing to object to the prosecutors argument. In particular, he now objects to the prosecutors arguments that the prosecution was not required to prove appellant "had intentions to use" the firearm, and that constructive possession simply required proof that the gun was "in a place where you can get it."
"A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).)
No objection was made to the prosecutors argument, so this claim of misconduct or misstatements during argument was waived. (People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal. Rptr. 1, 609 P.2d 468 (Green).) Appellant restates his argument as a claim of ineffective assistance of trial counsel for failure to object, claiming that the prosecutor improperly told the jury that appellants mere presence in a room with a weapon, with knowledge of its presence and access to it, was sufficient to establish constructive possession.
"At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom." (Morales, supra, 25 Cal.4th at p. 44.) The comments appellant quotes from the record do not support his claim of misconduct, when considered in context. The prosecutor argued that appellants regular presence at Cary Court and the discovery of the ammunition and gun in his bedroom was circumstantial evidence of his intent to possess and control the weapon. Arguing that even if appellant never touched the weapon it was within his control, the prosecutor pointed out that he was not required to show appellant had an intent to use the gun in any particular way, only that he exercised dominion or control over it. The prosecutor also advised the jury, correctly, that "constructive possession does not require actual possession, but does require that a person knowingly exercises control or the right to control a thing either directly or through another person or persons."
Accessible objects a person knows are in the bedroom he routinely occupies for the night may reasonably be deemed to be within that persons custody and control, which amounts to constructive possession. When the prosecutors arguments are considered in context, we find that he did not suggest the jury could convict appellant if it simply concluded he knew the Derringer was under the bed, where he had access to it. Rather, the prosecutor went through the elements of the offense and focused on the issues he believed were pivotal under the facts of the case: especially, whether appellant had the firearm within his custody and control, as shown by evidence surrounding the .38-caliber ammunition. These were relevant evidentiary considerations establishing the elements of the charged offense. (See People v. Snyder (1982) 32 Cal.3d 590, 592, 186 Cal. Rptr. 485, 652 P.2d 42.)
It does appear that some of the prosecutors arguments could have been inaccurate, if viewed in isolation. For instance, the prosecutor argued that "We dont have to show that he had intentions to use it or that he handled it or that he touched it. Constructive possession means that you have — its in a place where you can get it. I mean, hes living at the house. He can get to that gun. Thats what the whole law is about. I mean, if we believe the defendants version, he could be around guns and ammunition. He could walk in the house[,] there could be drugs, there could be guns, there could be ammunition, as long as he doesnt touch them, then hes not in possession. Wrong. That is constructive possession. The very definition. He lives there. He has knowledge." The prosecutor also argued that the appellant "admits knowledge and residency to the police. Thats constructive possession. If thats not constructive possession, it means nothing. The law means nothing."
These statements, if viewed in isolation, omit a discussion of the element of knowing exercise of control. However, in this same argument, the prosecutor again emphasized to the jury that it must also find a knowing exercise of control: "You dont have to have actual possession, but [the law] does require that you knowingly exercise control or the right to control . . . ."
In any event, misstatements by a prosecutor in closing argument would require reversal only when, viewing the record as a whole, they resulted in a miscarriage of justice. (Green, supra, 27 Cal.3d at p. 29.) On the record before us, we conclude there was no miscarriage of justice. The prosecutors arguments, taken as a whole, told the jury that it must find knowing exercise of control and possession. The courts instructions, which we have discussed above, did likewise. Given the compelling evidence, and the instructions by the court, it is not reasonably probable that defendant would have achieved a more favorable result absent the prosecutors statements to the jury on this subject. (People v. Strickland (1974) 11 Cal.3d 946, 955, 114 Cal. Rptr. 632, 523 P.2d 672.) Because we find no prejudice from the prosecutors argument, trial counsel was not ineffective for failing to object. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
E. APPELLANTS ABSENCE AT THE READING OF AN OMITTED JURY INSTRUCTION
Appellant claims his constitutional rights were violated because he was absent during the reading of a supplemental jury instruction.
This claim arises from the following facts. The trial court initially neglected to instruct the jury regarding the definition of the term "firearm." When this oversight was brought to the courts attention, the jury was reconvened and read the omitted instruction, without objection from defense counsel. Appellant was not present at this reading, because his attendance had been excused to allow him to visit Lewis in the hospital. The jury was told that appellant was not present because he had been excused.
The court had based this definition on the standard instruction, CALJIC No. 12.48, which provides, in pertinent part: "The word 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 whether operable or not."
Defense counsel informed the court it had no objection as to this procedure. Ideally, of course, the better practice would have been to obtain a personal waiver of appellants presence, but that was apparently not practical since he had already left for the hospital.
Nevertheless, we find no violation of appellants constitutional rights in these unique circumstances. Appellant cites no case authority holding that a mere reading of an unintentionally omitted instruction is a critical phase of the proceedings requiring the defendants personal presence. His absence was obviously at his own request, due to Lewiss hospitalization. The instruction in question was routine and had previously been agreed to by counsel; appellant could only have sat mute while it was read to the jury; and his presence would not have been useful or critical to the proceedings. (See People v. Horton (1995) 11 Cal.4th 1068, 1120-1121, 906 P.2d 478 [No constitutional right to be present at mere readback of testimony.].)
We reject appellants suggestion that his presence at the reading of the omitted instruction was "critical" because he could have acted on this occasion to point out defects in other instructions. The other instructions were not in issue; only an omitted routine instruction was being read to the jury. If appellant had concerns regarding other instructions, he could have voiced those concerns to his attorney at any point in the proceedings, and his attorney could then bring such concerns to the attention of the court.
Appellant urges us to rely on recent Ninth Circuit authority, U.S. v. Rosales-Rodriguez (9th Cir. 2002) 289 F.3d 1106, 1109-1110 (Rosales-Rodriguez), which held that the delivery of a "supplementary" jury instruction was a critical stage of the trial and required the presence of the accused. However, Rosales-Rodriguez did not involve the reading of a routine, unintentionally omitted instruction, as was the case here. The "supplementary" jury instruction in Rosales-Rodriguez was actually an unsolicited note from the trial judge, sent to the jury without the knowledge of the accused or his counsel, which warned jurors that unless they reached a verdict by a specific time, the judge would substitute an alternate juror, and the jury would be required to begin deliberations anew. We do not characterize the "supplementary" jury instruction in Rosales-Rodriguez as being a routine reading of an omitted instruction, as we address here.
We must also point out that the court in Rosales-Rodriguez nevertheless found the error harmless beyond a reasonable doubt, which would also be true in the present case. (Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (Chapman).) There is absolutely no showing that the result could have been different if appellant had been present at the reading of this routine instruction.
F. ADMISSION OF IMPROPER OPINION TESTIMONY
Appellant next alleges ineffective assistance by his trial counsel in allowing improper opinion evidence to come before the jury. Inspector Raymond Conner of the Alameda County District Attorneys office assisted in the search at Cary Court and the subsequent interviews with appellant and Lewis.
Conner was familiar with the procedure for monitoring or taping telephone calls from the jail, and had requested that appellants calls to Lewis, as well as his jailhouse visits with her, should be monitored and taped. During these taped conversations, appellant and Lewis made comments indicating they were aware of the taping. They also used "guarded" language, such as referring to a gun as a "thing." Appellant instructed Lewis what she should say in order to provide him with a defense, suggesting she should testify he had not been a resident of her home, but he had only been staying or visiting their on an occasional basis. Appellant also suggested Lewis should testify she had been mistreated by the police, and that they had intimidated her into saying that the gun under the mattress belonged to him. Appellant suggested Lewis should say she had been confused as between the .38-caliber Derringer found under the mattress and another gun, a .22-caliber handgun, which appellant had previously possessed. These taped conversations were played for the jury.
Appellant objected repeatedly at trial to the opinions or conclusions offered by Conner, and those objections were sustained. He now contends that Conner was allowed to give improper opinion testimony on an additional nine occasions, which were not objected to on this ground. In these nine instances, Conner stated conclusions or opinions that (1) appellant had been coaching Lewis as to what she should tell the police; (2) appellant was telling Lewis to give testimony "diametrically opposed" to her statements to the police; (3) appellant told or coached Lewis about what she should say regarding his residency at Cary Court; (4) appellant was berating Lewis for not following their script about what she should say; (5) a conversation between appellant and Lewis about various household bills proved that appellant lived at Cary Court; (6) appellant and Lewis had a plan to have Pam Young testify the gun was hers; (7) appellant told Lewis how to handle future contacts with the district attorney; (8) appellant told Lewis she should have Mildred Thompson claim the gun was hers; and (9) appellant and Lewis had been rehearsing her testimony.
In two instances, defense counsel objected on grounds of relevance or Evidence Code section 352, but those objections were properly overruled, because this evidence was neither irrelevant nor unduly prejudicial, and appellant does not now contend otherwise.
We first note that there were no timely objections to this testimony, and therefore these other claims of error were waived for purposes of appeal. (Evid. Code, § 353; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015, 874 P.2d 248.)
Although appellant now revives these waived claims by contending his counsel was ineffective in failing to object, the record shows trial counsel told the court he had tactical reasons for not objecting. We therefore cannot address the merits of these evidentiary claims on direct appeal, for the record discloses the failure to object may have had a tactical basis. (See People v. Pope (1979) 23 Cal.3d 412, 426-428, 152 Cal. Rptr. 732, 590 P.2d 859 (Pope).)
Appellant points out that the trial court never discussed the specific tactical reasons relied on by defense counsel at that time, and the record is silent as to what those reasons were. He now maintains that there were no valid tactical reasons. Nevertheless, the fact that the record discloses the apparent existence of tactical reasons relied upon by defense counsel renders this claim inappropriate for resolution on direct appeal. (See Pope, supra, 23 Cal.3d at pp. 426-428.)
Of more significance is that appellant has not made a showing of prejudice from these claimed errors. Testimony by Conner as to his opinions or conclusions about the tape recorded conversations added nothing new to the case, and his conclusions were obvious ones that were also confirmed by other evidence, including Lewiss testimony and her own statements on the tapes, which were most damning. Although the opinion testimony might have been challenged and excluded, as we have pointed out, the other evidence against appellant was very compelling, and his defense was highly implausible. It is not reasonably probable that a result more favorable to appellant would have been reached if Conner had not been allowed to so testify. (Watson, supra, 46 Cal.2d at p. 836.) Appellant has failed to demonstrate prejudicial ineffectiveness by trial counsel from his failure to object to Conners testimony. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
Appellant makes three related arguments. First, he claims that repeated attempts to elicit Conners inadmissible opinion testimony constituted prejudicial misconduct. Without referring to the record, he points out that the prosecutor continued to elicit improper opinion testimony, "even in the face of multiple sustained objections." (Underscoring in original.) Even though Conners responses were stricken by the court, appellant suggests, the improper opinions he voiced could not have escaped the jurys attention. It is not clear what stricken testimony appellant is complaining about, and thus we do not find the jurys awareness of any such stricken testimony a violation of his federal constitutional right to due process, and we reject his claim of prejudicial misconduct, finding no prejudice.
Appellant next argues it was improper to provide the jury with transcripts for the taped conversations that had conclusory titles and subtitles, such as "Residency" or "subornation of perjury" or "Fabrication of Alibi." However, it does not appear the version of the transcripts admitted into evidence, as exhibit 110, and provided to the jury, bore these titles and subtitles. It is true that when Conner testified, he referred to some of these titles and subtitles, by which he had organized the transcripts. However, there was no objection, and this matter may not be raised for the first time on appeal. (Evid. Code, § 353.) For the reasons discussed above, the mere glancing references to the titles would not establish prejudicial ineffectiveness for failure to object. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
Appellants final related contention challenges Conners testimony that Lewis was not under arrest at the time of her statements, and therefore no Miranda advisements were required. Once again, there was no objection, and this matter may not be raised for the first time on appeal. (Evid. Code, § 353.) As to appellants claim that his trial counsel was ineffective for failure to object to this testimony, it does not appear an objection would have been successful. Conners testimony on this point was relevant to rebut appellants position that Lewiss statements were not voluntary, that she had been put under pressure or duress by the police. In any event, this evidence was not prejudicial, and its admission without objection does not demonstrate prejudicial ineffectiveness. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
We also reject appellants suggestions that this claimed error, or any other error related to the evidence adduced at trial, violated his federal constitutional rights.
G. LEGALITY OF THE SEARCH AT CARY COURT
Challenging the search at Cary Court, appellant suggests the sealed affidavit may not have contained evidence sufficient to support a finding of probable cause, and the search may not have been valid as a parole search. The trial court rejected both these claims, when denying a motion to suppress brought by appellant.
The Attorney General points out that we need not address appellants contentions regarding the sealed affidavit and asserted lack of probable cause, because the search may be upheld as a parole search. We agree. (See People v. Reyes (1998) 19 Cal.4th 743, 752-754, 968 P.2d 445.) The record shows appellant was on parole, and he advised his parole officer that he was living at Cary Court. The San Francisco authorities provided information to appellants parole officer, Smith, showing that appellant was apparently involved in recent criminal activity. Smith properly authorized a parole search of the Cary Court residence to determine whether this information was accurate. Such a parole search was not in violation of appellants rights. (Ibid .)
In addition, without revealing the contents of the sealed affidavit, there was probable cause to justify the search at Cary Court, quite apart from the validity of the search as a parole search, and we conclude there is no evidence appellants rights were violated by the use of a sealed affidavit. (See People v. Hobbs (1994) 7 Cal.4th 948, 974, 873 P.2d 1246.) The motion to suppress was properly denied.
H. CLAIMED ERRORS INVOLVING THE BIFURCATED TRIAL OF THE PRIOR CONVICTIONS, AND SENTENCE
Appellant also asserts four more errors, relating to the subsequent bifurcated jury trial as to the truth of the charged prior conviction allegations, and his sentence.
1. Asserted Lack of a Finding on Identity, and Related Claims
Appellant first asserts the trial court made no finding of identity, i.e., that appellant was the same person who was specified in the documents concerning the prior convictions. However, in his reply brief appellant retreats from his assertion that no such finding was made, and he concedes the trial court made such a finding. We reach the same conclusion, and reject this claim of error.
In a related claim, appellant also suggests that his constitutional right to a jury trial on the prior conviction allegations was violated because, although the trial court required the jury to decide whether the prior conviction allegations were true, it erred by deciding for itself the issue of identity. Purportedly relying on Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (Apprendi ), appellant maintains he had a right to a jury trial both as to whether he was the one who had suffered the conviction and whether the prior conviction qualified as a strike. He is wrong.
The right to have a jury determine factual issues relating to a prior conviction pled as a sentencing enhancement is statutory, not constitutional in origin. (People v. Epps (2001) 25 Cal.4th 19, 29, citing Apprendi, supra, 530 U.S. at pp. 486-492, 496.) Under Penal Code section 1025, subdivision (b), the question of whether a conviction occurred is tried to the jury, while under Penal Code section 1025, subdivision (c), the issue of the identity of the defendant in the prior proceeding is a determination for the court. (Epps , supra, at p. 25 ["Though subdivision (c) of [Penal Code] section 1025 gives the question of identity to the court, the question whether the alleged prior conviction ever occurred . . . remains for jury determination under subdivision (b)."]; see also People v. Williams (2002) 99 Cal.App.4th 696, 700-701.)
We reject appellants suggestion that the jury was required to decide the issue of identity with respect to the prior conviction allegations. In addition, we note that appellant never contested the issue of identity, which was proven by overwhelming evidence. Consequently, there would be no merit to appellants suggestion that any prejudicial error occurred, regardless of whether the issue was decided by the court or jury. (See Chapman, supra, 386 U.S. at p. 24.)
2. Irrelevant Prior Conviction Allegations
Appellant points out that two of the six prior conviction special allegations were improperly found to be true by the jury, since these particular prior convictions were not charged as enhancements.
The original and amended informations merely charged as second and fifth prior convictions that appellant had suffered a 1981 conviction of burglary, and a 1988 conviction of receiving stolen property. Findings were submitted to the jury, and the 1981 and 1988 prior convictions were found to be true, as well as the other four prior conviction allegations. However, because there were no enhancement allegations relevant to the two prior convictions, the findings of the jury as to these two prior convictions had no practical effect.
The People contend the 1988 prior conviction was relevant to prove that appellant had not remained free from both prison custody and the commission of a felony for five years, which was a material fact as to the 1986 "prison prior." ( § 667.5, subd. (b).) The People present no argument at all for the relevance of the 1981 burglary conviction, and we agree it is unclear why the 1981 burglary and the 1988 stolen property convictions were pled and submitted to the jury, since they were not accompanied by any relevant enhancement allegations. It appears the district attorneys charging error simply went unnoticed.
We note that Penal Code section 969 states that "all known previous convictions, whether in this State or elsewhere, must be charged." However, it would still be erroneous to submit prior convictions to the jury for a true finding, if those convictions are irrelevant to any enhancement allegations or other issues before the jury. (See Evid. Code, §§ 210, 350.)
Nevertheless, appellant did not object to the introduction of evidence as to the extraneous prior convictions, so the issue was waived for purposes of appeal. (Evid. Code, § 353.)
Appellant again advances a further claim of ineffective assistance of counsel in this regard, but there is no showing of prejudice from the jurys consideration of the superfluous 1981 burglary conviction or the 1988 receiving stolen property conviction. Certainly appellants sentence could not be lengthened as a result of the jurys findings as to these particular prior convictions, since they were not enhancements. Although the 1988 receiving stolen property conviction had potential relevance to the 1986 prison prior [third prior conviction], the approach adopted by the district attorney in this instance was nevertheless a rather unusual one. In any event, there is no reasonable likelihood that the jurys knowledge of the 1981 burglary conviction contributed to the jurys findings as to the four sentencing allegations, which were proven by overwhelming evidence. Any error in this respect was harmless, and no prejudicial ineffectiveness is demonstrated. (See Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
3. Amendments to Dates of Two Prior Convictions
The trial court permitted the prosecution to amend the information, during jury deliberations, to allege the more precise dates of two of the prior conviction allegations (third and fourth). Appellant claims this was an abuse of discretion, particularly because he was not rearraigned and allowed to replead.
To understand this claim, some further knowledge of the facts is required. In the bifurcated trial of the prior conviction allegations, the court received two notes from the jury which was then deliberating. From its examination of the documentary evidence, the jury pointed out that it appeared the 1983 conviction of first degree burglary occurred on May 27, not on March 27 as alleged; and the 1986 conviction for harboring a criminal occurred on January 7, not February 14. The jurors requested guidance. In response, the court then allowed the prosecution to amend the information and correct the verdict forms to list the proper dates, without objection by the defense.
Again, as there was no objection in the lower court, this claim of error was waived. If however we were to review the trial courts ruling allowing these amendments, we would do so applying an abuse of discretion standard. (People v. Pitts (1990) 223 Cal. App. 3d 606, 903, 273 Cal. Rptr. 757.) These amendments, which corrected dates of two of the prior convictions, were clerical or housekeeping measures which became necessary after the jury discovered that dates of two of the alleged prior convictions were incorrectly listed in the information and verdict forms. There is no indication in this record that the admittedly late amendments caused appellant any prejudice. Under the circumstances, it was well within the trial courts discretion to grant the amendments, and no abuse is shown. (See ibid.)
As to appellants suggestion that he should have been rearraigned and allowed to replead under Penal Code section 1009, he has waived any error by failing to object on this ground in the trial court. (People v. Turner (1994) 8 Cal.4th 137, 187, 878 P.2d 521.) And, while appellant argues that his trial counsel was ineffective in failing to object to the amendments, once again he neglects to demonstrate ineffectiveness or prejudice. We cannot think of any grounds upon which an objection to the amendments might have been sustained. Certainly appellant suggests none, and defense counsels objection would have been futile. As for rearraignment and repleading, appellant again makes no showing of how these procedures would have aided his cause. We therefore reject this claim of ineffective assistance, for lack of a showing of prejudice. (See ibid.; Harris, supra, 5 Cal.4th at pp. 832-833; Strickland v. Washington, supra, 466 U.S. at pp. 686-692.)
Penal Code section 1009 provides, in pertinent part, that the trial court may permit an amendment "for any defect or insufficiency, at any stage of the proceedings" and that the defendant should then be rearraigned and allowed to replead.
4. Claim of Cruel and Unusual Punishment
Finally, appellant contends his sentence of 28 years to life, imposed under the provisions of the three strikes law, violated the proscriptions against cruel and unusual punishment found in the federal and California Constitutions. In his reply brief, appellant retreats from this position, acknowledging the federal Supreme Court has recently rejected his argument under the federal Constitution. (Ewing v. California (2003) 155 L. Ed. 2d 108, U.S. .) We must, of course, follow the federal high courts ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
Appellant also asserts his sentence constitutes cruel and unusual punishment under the California Constitution. Under the California Constitution, a sentence constitutes cruel and unusual punishment if it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (People v. Dillon (1983) 34 Cal.3d 441, 478, 194 Cal. Rptr. 390, 668 P.2d 697 (Dillon), quoting In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921 (Lynch ).) As under the Eighth Amendment to the federal Constitution, successful challenges based on disproportionality under California law are an "exquisite rarity."(People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
To determine the proportionality of a sentence under California law, the courts have suggested three "techniques" similar to the factors considered under the Eighth Amendment: (1) comparing the nature of the offense and offender, including the danger they present to society, to the harshness of the sentence; (2) comparing the challenged punishment to punishments for more serious crimes in the same jurisdiction; and (3) comparing the challenged punishment to punishments for the same offense in other jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425-427; see Dillon, supra, 34 Cal.3d at p. 479.) With these principles in mind, we address the nature of appellants crimes and criminality, and whether his sentence may be considered grossly disproportionate in these circumstances.
Appellant was convicted of unlawful possession of a firearm. The gravity of this offense must be assessed in light of his past criminal history and recidivism. (See People v. Cooper (1996) 43 Cal.App.4th 815, 820-825.) As the jury found, appellant has suffered at least six prior felony convictions. His criminal history thus denotes extensive recidivism. Attempts at rehabilitation have plainly been unsuccessful, and it is safe to say that appellant has amassed an extensive criminal history. Nor has he been deterred as the result of serving terms of imprisonment in the state penitentiary. Further, the present offense, in which appellant unlawfully possessed a deadly firearm, demonstrates that he continues to present a danger to the community. (See Lynch, supra, 8 Cal.3d at p. 425.)
We are aware that appellants sentence could result in his confinement in prison until he reaches an advanced age. However, the 28 years to life sentence was not a consequence of the current offense alone, but was also a result of the numerous prior serious or violent felonies he had committed. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Thus, appellant was punished for his recidivism, not merely for the current offense. Because his sentence penalizes his extensive history of repeated criminal conduct, we conclude it is not disproportionate to his persistence in perpetrating crimes after lesser punishments have proven ineffective. (Ibid.)
As a general proposition, the punishment for recidivism imposed by the three strikes law is not so disproportionate that it violates the prohibition against cruel or unusual punishment. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512-1517.) The same is true in appellants case; as the trial court observed at the time of sentencing, appellant appears to be exactly the sort of multiple serious felony recidivist criminal who was intended to be affected by the three strikes law. Because we do not find an inference of disproportionality, we need not compare appellants sentence to other sentences in California or in other jurisdictions. In the final analysis, appellant has failed to establish that his sentence constitutes cruel and unusual punishment. (See ibid.)
III. DISPOSITION
The judgment of conviction is affirmed.
We concur. JONES, P.J., GEMELLO, J.