Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FVI1402515) APPEAL from a judgment of the Superior Court of San Bernardino County, Debra Harris, Judge. Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
William W. Powell was convicted by a jury of possession of a firearm by a felon, in violation of Penal Code section 29800, subdivision (a)(1). (All further statutory references are to this code unless noted.) The jury also found him guilty of possession of ammunition by a felon. (§ 30305, subd. (a)(1).) He was further convicted of three felony counts of possessing drugs for sale (Health & Saf. Code, §§ 11351 [cocaine], 11378 [methamphetamine (meth)], 11359 [marijuana]), as well as a misdemeanor count of possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)). Powell admitted he had suffered a serious/violent felony prior, within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). He was sentenced to a prison term of 13 years four months.
On appeal, Powell challenges only the weapon and ammunition convictions, as well as the sentence imposed. He first contends the record does not contain sufficient evidence regarding his knowledge or intent, on a constructive possession basis, in support of his convictions of being a felon in possession of a firearm (count 5), or of ammunition (count 6). Also on those counts, he argues the trial court erroneously refused to modify standard jury instructions to clarify the constructive possession elements of the offenses.
Powell additionally claims that the court abused its discretion in declining to strike his 2002 serious/violent felony prior conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) We find substantial evidence supports the firearm and ammunition convictions. The instructions given on constructive possession issues were adequate, and Powell's proposed modifications to them would not have been appropriate. On the sentencing claim, we are satisfied the trial court acted well within its discretion. We affirm.
On July 2, 2014, law enforcement officers were arriving at an apartment complex to execute a search warrant on an apartment rented by Krystian Warren. At the time, Powell was leaving the complex in his car, but when he made a U-turn, Sheriff's Deputy Brian Faylor detained him and they talked. Faylor was recording the conversation on his belt recorder, and the jury heard the recording. During the interview, Powell told Faylor he lived at the same apartment unit as named in the search warrant, and that his girlfriend Warren had been gone for a few days. He explained that he had left his belongings and drugs all over the apartment in anticipation of a party. He said he was willing to work with Faylor as an informant. He admitted he possessed cannabis wax, meth and cocaine for his own use, although he sold marijuana and cannabis wax.
Powell told Faylor he knew Warren had a gun she kept in the apartment, but he did not know where it was. She did not buy any ammunition for her gun when he was with her. He had not owned a gun himself for a long time. Once Warren arrived at the apartment, Faylor and several other deputies began their search. They found quantities of different kinds of drugs in the living room and laundry areas.
The apartment had a children's bedroom, where nothing illegal was found. In the master bedroom, Faylor found a large bag of marijuana. A wooden dresser had a man's personal items and toiletries in it. Faylor pulled out the bottom drawer of the dresser and found a gun box hidden underneath. This box had an unloaded nine-millimeter Beretta handgun in it, which was later found to be registered to Warren. The drawer above the bottom drawer contained rifle ammunition, which did not fit the handgun.
The drawer having a man's personal items and the ammunition in it also had pieces of mail scattered inside. Several envelopes were addressed to Powell at a different address, and postmarked a few months prior to the search date. Powell was arrested and charged with the drug and firearms offenses.
During trial, Powell admitted to the allegation that he had been convicted of robbery under section 211 in 2002, a strike prior. He stipulated that he was a person who was prohibited from owning guns or ammunition. Following arguments and instructions, the jury returned a verdict convicting Powell as charged. He was sentenced to 13 years four months in state prison.
SUFFICIENCY OF THE EVIDENCE
Powell focuses on the constructive possession element of the firearm and ammunition offenses. He first contends there was no supporting evidence of possession other than his residence in the apartment, since the gun was registered to Warren and the ammunition did not fit the gun.
A. Legal Principles
Possession of a firearm is a general intent crime, and "[p]ossession may be either actual or constructive as long as it is intentional." (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) "To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person. [Citations.] Possession may be shared with others. [Citation.] But mere proximity to the weapon, standing alone, is not sufficient evidence of possession." (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 (Sifuentes).)
On appeal, when a defendant challenges the sufficiency of the evidence supporting his or her conviction, we review the trial court record " 'in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the offense] beyond a reasonable doubt.' " (People v. Bolden (2002) 29 Cal.4th 515, 553.) Thus, " ' " '[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant reversal of the judgment.' " ' " (People v. Harris (2013) 57 Cal.4th 804, 850.)
As a reviewing court, we accept any logical inferences from the circumstantial evidence that the jury must have drawn in support of its findings. (People v. Maury (2003) 30 Cal.4th 342, 396.) " 'A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." ' " (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) "Where, as here, the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, 'but our opinion that the circumstances might reasonably be reconciled with a contrary finding' does not render the evidence insubstantial." (People v. Earp (1999) 20 Cal.4th 826, 887-888.) Our task is to determine whether a reasonable fact finder could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 319.)
B. Contentions and Analysis
We agree with Powell that the constructive possession issues concerning the firearm and ammunition offenses, as separate counts, must be considered separately. As to each, he contends that his conviction must be reversed because the evidence did not establish that he physically possessed the contraband, or had dominion over and the right to control the items in and under the bedroom dresser where they were found.
As a person previously convicted of a felony, it was unlawful for Powell to have "ownership or knowing possession, custody, or control of a firearm," or ammunition. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029; § 29800, subd. (a).) It is not disputed that physical possession of a firearm is not required to prove possession. The offense can be proved by showing constructive possession of the weapon, either directly or through another person. (Sifuentes, supra, 195 Cal.App.4th 1410, 1417.) For such a conviction to stand, the prosecutor must produce substantial evidence that the defendant had knowledge that a weapon was accessible nearby and the defendant had the right to control it. (Ibid.) The same principles apply to this ammunition offense.
Powell relies on Sifuentes, supra, 195 Cal.App.4th 1410, 1417 as authority that "mere proximity to the weapon, standing alone, is not sufficient evidence of possession." In that case, a firearm was found in a motel room under a bed that had another defendant kneeling nearby. A gang expert's testimony in that case did not amount to substantial evidence that Sifuentes, who was lying on another bed in the room, had the right to control that communal gang gun. The expert testified that "certain restrictions applied concerning 'access' to a gang gun," but he "did not explain these restrictions or whether he equated access with a right to control." (Id. at p. 1419.) He could not link Sifuentes to the particular weapon found under one bed's mattress next to the other defendant, while Sifuentes was lying elsewhere. (Id. at pp. 1413-1414, 1417.)
In Powell's case, the trier of fact could reasonably determine from the evidence that he had knowledge that the firearm and ammunition were accessible to him inside the room and furniture at Warren's apartment, where he had been living and where he kept and controlled his personal items. She had left him in the apartment for a few days and he did not have any apparent restrictions within it. Among the items found near the firearm and ammunition were a man's toiletries and belongings, and mail directed to Powell. The jury did not have to believe Powell's explanations that he was unaware of the location of the handgun or that he did not know whether Warren had acquired some rifle ammunition. Unlike in Sifuentes, supra, 195 Cal.App.4th 1410, 1417, much more than Powell's close proximity to a weapon hidden across a room was shown, including his access to and control over the furniture's contents, as a regular resident.
We are required to review the evidence in the light most favorable to the prosecution and to presume in support of the judgment the existence of those facts that the jury could reasonably have deduced from the evidence. We accept the logical inferences from circumstantial evidence that the jury must have drawn in support of its findings. (People v. Maury, supra, 30 Cal.4th 342, 396.) Applying this test, we conclude substantial evidence supports the verdict and judgment.
Powell next argues the trial court inappropriately gave standardized instructions on the firearm and ammunition offenses, without accepting his request to clarify their language on the contested issue of constructive possession. Powell sought to have the court add terms from Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 539 (Armstrong), which refer to the fairness of punishment in a given case. (See People v. Kim (2011) 193 Cal.App.4th 836, 846 ["Implicit in the crime of possession of a firearm is that a person is aware both that the item is in his or her possession and that it is a firearm."].)
A. Legal Principles
" 'In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.' " (People v. Anderson (2011) 51 Cal.4th 989, 996 (Anderson).) This duty may include giving to the jury the essential elements of a charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) Appellate courts consider as legal issues whether the jury instructions, as given, were correct statements of the applicable law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The Supreme Court has recognized there is a danger in assuming that a statement of substantive law that is correct in one case will always provide "a sound basis for charging the jury" in another case, that necessarily arises out of a different factual and legal context. (People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 13.) "The discussion in an appellate decision is directed to the issue presented. The reviewing court generally does not contemplate a subsequent transmutation of its words into jury instructions and hence does not choose them with that end in mind. We therefore strongly caution that when evaluating special instructions, trial courts carefully consider whether such derivative application is consistent with their original usage." (Ibid.)
B. Contentions and Analysis
Powell contends that his convictions on the firearm and ammunition charges must be reversed because the jury could have concluded, under the pattern instructions, that his mere proximity to the contraband established the additional required elements of his dominion over and the right to control those items, considering where they were found. He believes the court should have granted his request to modify the standard jury instructions, to avoid a risk that the jury might assume, merely from his proximity to the items, that he controlled and constructively possessed them.
In CALCRIM No. 2511 on count 5, possession of a firearm by a prohibited person, the court gave standard introductory language defining a firearm. On the contested issue of constructive possession, the court instructed as follows: "Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person." Likewise, on count 6 (possession of ammunition by a prohibited person), CALCRIM No. 2591 as given defined the term ammunition, then used the same constructive possession explanatory language.
As to each instruction, Powell asked the court to clarify that language by referring to the required control element and explaining that parties guilty of constructive possession "may fairly be punished in the same manner as if they were in actual physical possession." This language appears in Armstrong, supra, 217 Cal.App.3d 535, 539, in the context of this court's discussion of the underlying policies in drug enforcement, particularly where controlled purchase operations are concerned. (Id. at p. 537.) This court acknowledged that "[a]ny discussion of the concept of 'possession' must be premised by the acknowledgment that it is surely among the vaguest of all vague terms with which those who draft legal principles must work." (Id. at p. 538.) The "totality of circumstances will determine whether a defendant has exercised the requisite control over contraband in the hands of another . . . ." (Id. at p. 539.)
In Armstrong, supra, 217 Cal.App.3d 535, 539, the relevant circumstances were that the defendant had exercised some control over the location, process and price of the controlled drug sale, but he was arrested before he physically obtained any goods. He acknowledged that he could be held at least for attempted possession of controlled substances, since he never had any control over them. (Id. at p. 540, fn. 3.) We observed, "the terms 'control' and 'right to control' are aspects of a single overriding inquiry into when the law may punish an individual who is exercising such a degree of intentional direction over contraband that he can be justifiably and fairly punished in the same manner as if he were indeed in actual physical possession of a controlled substance." (Id. at p. 539; italics added.) Factors to be considered include "the alleged offender's capacity to direct the illicit goods, the manifestation of circumstances wherein it is reasonable to infer such capacity exists and the degree of direction being exercised by the accused over the contraband." (Ibid.) But Armstrong had not been able to direct that the contraband be moved within a room, "[n]or did he take any other action which exhibits control over the drugs." Accordingly, this court decided that he lacked the requisite control for establishing his constructive possession of drugs, and granted a writ petition seeking dismissal of the charge. (Id. at p. 540.)
The purpose of the referenced discussion in Armstrong, supra, 217 Cal.App.3d 535, was not to establish the law relating to constructive possession of drugs for purposes of fine tuning jury instructions in a comparable weapons possession context. Rather, it primarily involved the requirements for a finding of constructive possession in a police-controlled setting for the purchase of contraband. (Id. at p. 537.)
Here, Powell's defenses were that he did not know (a) where Warren kept her own gun or (b) that she had obtained some rifle ammunition. He sought a fuller explanation to the jury about the circumstances shown by the evidence on his ability to " 'maintain control or a right to control the contraband.' " (Armstrong, supra, 217 Cal.App.3d at p. 538.) However, the jury was appropriately given the opportunity and the relevant standards for evaluating the constructive possession issue as it arose here. The jurors were correctly told to reach a verdict on the evidence "without any consideration of punishment." (CALCRIM No. 101 [cautionary admonitions].) The requested modification, with the Armstrong case specific language on fairness of punishment, would have asked the jurors to consider irrelevant factors and sent them in the wrong direction. (Armstrong, supra, at p. 539; People v. Colantuono, supra, 7 Cal.4th 206, 222.) The pattern instructions given were a correct statement of law. (People v. Posey, supra, 32 Cal.4th 193, 218.) We need not consider Powell's requested harmless error analysis. (People v. Breverman, supra, 19 Cal.4th at pp. 174-176.)
In Romero, supra, 13 Cal.4th 497, 529-530, the court determined that section 1385 permitted trial courts, in their discretion, to strike serious/violent felony prior convictions in the furtherance of justice. Powell contends the trial court abused its discretion when it denied his motion to strike his 2002 prior conviction. Essentially, he argues the trial court seemed to be irrationally punishing him for his virtues (a steady employment history, lack of violent felonies, and supportive family), when deciding that more law abiding behavior should have been expected from a person with those qualities who might qualify for such an exercise of discretion.
In 2002, Powell was convicted of two second degree robberies (§ 211), and by 2005, he had successfully completed probation. In 2011, he was convicted of driving while under the influence of alcohol, and served a jail term and probation. (Veh. Code, § 23152B.) In 2013, he was convicted of two misdemeanor counts of possession of concentrated cannabis, and was again granted probation. (Health & Saf. Code, § 11357, subd. (a).) He was still on probation at the time of the current offenses.
In his motion to strike the prior, Powell emphasized the 2002 robbery offense was remote in time, and his subsequent convictions were less serious. He pointed to his history of employment and to prospective job offers waiting for him. He had operated a security company and a painting company, and had experience as a chef and in the hotel business. His two younger daughters were doing well in school and he tried to support them financially, such as by selling marijuana. This would be his first prison term and he requested that the court exercise its discretion and strike the prior conviction.
At the sentencing hearing, the court noted that Powell had been granted probation in the past and had ample opportunity to learn from his mistakes, but failed to do so. The court acknowledged that numerous letters of support had been submitted from Powell's relatives and church friends. He evidently had a strong family and community support system, but had failed to benefit from it by learning to consider the impact of criminality upon others who were vulnerable to becoming involved in drug use, or were adversely affected by those who do. The Romero motion was denied.
B. Legal Principles
In People v. Williams (1998) 17 Cal.4th 148, 158 (Williams), the Supreme Court established guidelines for a trial court's exercise of discretion in deciding a motion brought under Romero, supra, 13 Cal.4th 497. Specifically, the court in Williams held that trial courts, when ruling on motions to strike serious/violent felony priors, must consider the background of the defendant, his or her prospects for rehabilitation, and the nature of the "strike" prior and the current offense. (Id. at pp. 160-161.) The trial court must determine whether "the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious/violent felonies." (Id. at p. 161.)
One of the factors the court can consider is whether the current or prior offenses involved violence. (People v. Myers (1999) 69 Cal.App.4th 305, 308-310.) The length of time between the strike prior and the current offense is a proper factor for the trial court's consideration. (People v. Bishop (1997) 56 Cal.App.4th 1245, 1251.)
Where there has been some passage of time between the prior conviction and the current offense, the court may consider whether the defendant has led a legally blameless life in the interim. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) When a sentencing court has exercised discretion in making sentencing choices, we may not reverse its decision in the absence of a clear showing of an abuse of this broad discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
C. Contentions and Analysis
Powell argues that the trial court gave too much consideration to the existence of a prior that was 13-plus years old. Since the time of that conviction, he had suffered only nonviolent, misdemeanor convictions, and his criminal behavior appeared to be decreasing, not increasing, in seriousness. He contends that he clearly fell within the spirit of the discretionary sentencing scheme, as identified in Williams, supra, 17 Cal.4th at page 161.
The record shows the trial court made a careful and detailed analysis of the merits of Powell's motion to strike his prior conviction. It referred to factors about his background and his prospects for rehabilitation, commenting that he had apparently chosen not to take advantage of available legal means to obtain income, based on the skills that he had. The court was concerned about the nature of the current offense, observing that he did not appear to have ever considered how continuing to sell marijuana could impact the community in which he lived. (Williams, supra, 17 Cal.4th at pp. 160-161.) Powell appeared to have been knowingly taking risks that his prior conviction would never work against him, even though he had the necessary connections to act as a productive member of society. His conduct in continuing to sell drugs to his friends created known risks of harm to others, including random drivers on the road as well as children who might be exposed to drugs. The trial court thus did not find it appropriate to treat him "as though he had not previously been convicted of one or more serious/violent felonies." (Id. at p. 161.)
This sentencing choice was a classic exercise of discretion. That Powell disagrees, or even if another court might have made a different decision, is not evidence of abuse of discretion. The court attentively examined all of the factors for and against the motion to strike and set forth its reasoning, which was not clearly arbitrary or capricious. The trial court's decision cannot be effectively challenged on this record.
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. IRION, J.