Lead Opinion
Opinion
On January 18, 2012, Officer Anthony Tedesco observed defendant and appellant Gregory Jefferson placing an item—later determined to be a loaded and stolen firearm—under the driver’s seat of a gray Bentley that Jefferson had driven to the location. Jefferson then left that location in another car, as a passenger. At Tedesco’s request, that second car was stopped and Jefferson was found in possession of a second firearm that was legally registered to him. Approximately one year later, Jefferson was observed by a different officer exiting the same gray Bentley and placing a bag in the trunk of that vehicle. A subsequent search revealed a third firearm in that bag, also legally registered to Jefferson.
Based on the stolen firearm concealed in the Bentley, Jefferson was charged with carrying a concealed firearm within a vehicle and carrying a
I. Factual and Procedural Background
Jefferson was charged, by information, with carrying a concealed firearm within a vehicle (Pen. Code, § 25400, subd. (a)(1); count one)
At trial, Oakland Police Officer Anthony Tedesco testified that, on January 18, 2012, around 6:00 p.m., he was conducting undercover narcotics surveillance on 64th Avenue Place in Oakland. Using binoculars, Tedesco observed a man later identified as Jefferson drive a gray Bentley to the dead-end street, park about 30 yards away from Tedesco, and remain seated in the car for around 20 minutes before exiting and walking across the yard of a nearby house. As Jefferson approached the front door of the house, Tedesco lost sight of him for a minute or two. During that time, Tedesco heard a door open and close and the sound of, a small metal object being dropped on what sounded like sheet metal.
Jefferson came back into view as he returned to the Bentley. At the same time, a green Porsche Cayenne sport-utility vehicle drove up the street, made a U-turn, and stopped alongside the Bentley. Jefferson walked up to the Porsche, spoke to its occupants, entered the Porsche for a minute or two, and then returned to the Bentley while carrying something under his shirt. According to Tedesco, Jefferson carried the item “very gingerly,” as though it were important. Based on his experience and training and the size of the object being carried, Tedesco believed the object was a handgun. Jefferson
Tedesco reported this activity to nearby uniformed officers and asked those officers to make an investigative stop of the Porsche. Oakland Police Officer Jeffrey Smoak discovered that the Porsche had an expired registration and pulled it over within blocks of 64th Avenue Place. When the car stopped, Smoak approached and asked the driver to roll down the window. When the driver complied, Smoak smelled the fresh odor of marijuana coming from inside the car. Smoak observed that the driver and the passenger behind the driver were men, while the two passengers on the right side of the car were women. When Smoak smelled the marijuana, he also saw that the rear left passenger—later identified as Jefferson—was bent over and moving one hand by his waist. Concerned that Jefferson was armed, Smoak instructed him to put his hands on the seat in front of him. Jefferson complied.
The driver was discovered to be on probation and detained. Jefferson then dropped his hands off the seat in front of him. Smoak asked Jefferson to exit the vehicle and, when Jefferson did so, Smoak saw on the seat where Jefferson had been sitting an ammunition magazine containing eight rounds. Smoak handcuffed Jefferson and conducted a patsearch to check for weapons. As Jefferson was patsearched, a lower receiver for a Glock pistol dropped from his pants. The upper receiver to the pistol, with matching serial numbers, was found in Jefferson’s waistband. The gun was a Glock 27 semiautomatic pistol, which was legally registered to Jefferson. Smoak also found $1,785 in cash on Jefferson, a “fist sized” baggie of marijuana on one of the two female passengers, a small digital scale that had marijuana residue on it, and gallon-sized baggies.
Based on what was found inside the Porsche and Tedesco’s prior observations, Smoak obtained a search warrant for the Bentley. Oakland Police Officer Billy Matthews searched the Bentley. Matthews discovered a loaded nine-millimeter Sig Sauer firearm underneath the floor mat on the driver’s side floorboard. Matthews also found a picture of Jefferson in the glove compartment. Jefferson was arrested. Keys to the Bentley were later recovered from the mailbox of the house Jefferson had approached.
The parties stipulated that the Glock firearm was registered to Jefferson and that the Sig Sauer nine-millimeter pistol was registered to Stanley Toy, a former Daly City police officer. Toy testified that two guns had been stolen from the trunk of his car in 2007, one of which was a nine-millimeter Sig Sauer. Toy recognized the gun that had been seized from the Bentley because it had the same serial number and sights he had installed.
Jefferson did not present any witnesses in his defense.
The prosecutor argued, in closing argument: “The [gun] found on [Jefferson] is not charged. I won’t get into the reasons for that, but essentially it’s not put together in an operable way. . . . However, the issue in this case is the stolen gun, the one found in the [Bentley]. That’s what you’re being asked to decide, whether he was in possession of that.” Defense counsel’s closing argument made clear that, with respect to count one, Jefferson conceded that the Sig Sauer was found in the Bentley on January 18, 2012, but contended that the People had not met their burden to show that Jefferson controlled the car,
The jury returned guilty verdicts as to both counts and found the additional allegations true. The trial court suspended imposition of sentence on count one, placed Jefferson on five years’ probation, and ordered him to spend the first year in county jail. Punishment on count two was stayed pursuant to section 654. Jefferson filed a timely notice of appeal.
II. Discussion
On appeal, Jefferson argues that the trial court erred by (1) admitting evidence of his two uncharged firearm possessions; (2) failing to instruct the jury that a police officer’s testimony should be judged by the same standards
A. Statutory Scheme
Section 25400 provides, in relevant part: “(a) A person is guilty of carrying a concealed firearm when the person does any of the following: [¶] (1) Carries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person. [¶] . . . [¶] (c) Carrying a concealed firearm in violation of this section is punishable as follows: [¶] . . . [¶] (2) If the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony. [¶] . . . [¶] (6) If both of the following conditions are met, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment: [¶] (A) The pistol, revolver, or other firearm capable of being concealed upon the person is loaded, or both it and the unexpended ammunition capable of being discharged from it are in the immediate possession of the person or readily accessible to that person. [¶] (B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person. [¶] (7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.” (Italics added.) In other words, a violation of section 25400 is a felony offense under subdivision (c)(2), a misdemeanor offense under subdivision (c)(7), and an alternate felony/misdemeanor, commonly known as a “wobbler” offense, under subdivision (c)(6).
Section 25850, subdivision (a) provides: “A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.” Subdivision (c) of section 25850 is substantively identical to subdivision (c) of section 25400 except the phrase “concealed firearm” is replaced with “loaded firearm.”
B. Other Firearms Evidence
Jefferson contends that the trial court abused its discretion and denied him due process in admitting, under Evidence Code section 1101, subdivision (b), evidence of his possession of the Glock in 2012, as well as the nine-millimeter firearm found in the Bentley’s trunk in 2013. He argues the trial court should have excluded this evidence because it was irrelevant (Evid. Code, § 350), constituted inadmissible character evidence (id., § 1101), or, alternatively, its probative value was substantially outweighed by the potential for undue prejudice (id., § 352).
Prior to trial, the prosecution gave notice that it intended to introduce evidence of Jefferson’s 2013 contact with police, pursuant to Evidence Code section 1101, subdivision (b), to prove Jefferson’s intent and absence of mistake. Specifically, the prosecutor argued: “[I]f the uncharged act illuminates [Jefferson’s] control of the vehicle and absence of mistake at the time he committed the other offense, it may logically tend to show [Jefferson’s] control of the vehicle and absence of mistake when he committed the charged offenses. . . . [¶] The similarities between the uncharged offenses satisfy the requirements of Evidence Code section 1101(b) and warrant their admission into evidence. They both show his ownership and control of the Bentley.” Jefferson’s trial counsel moved in limine to exclude the evidence, as well as “[a]ny mention of the officers’ recovery [in 2012] of [Jefferson’s] lawfully possessed firearm.”
At argument on the motions, the prosecutor stated: “I think the gist of the argument is that the proposed testimony of one or two San Francisco police officers regarding [Jefferson] driving the same vehicle that . . . was searched as a part of this case in January of 2012'.... Pm not even sure as I read it it’s really an 1101(b) because the thrust of the testimony is going to be his connection to the car, which in and of itself isn’t illegal in any way.[
2. Analysis
“ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “ ‘Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’ ” (People v. Foster, supra,
“ ‘The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ ” (People v. Lindberg (2008)
“Even where such evidence is relevant for other purposes . . . evidence of other crimes ‘contains within itself a substantial degree of prejudice [and] should be received with “extreme caution,” its admissibility “examined with care,” and in the event of uncertainty as to its connection with the offense charged “the doubt should be resolved in favor of the accused.” ’ ” (People v. Holt (1984)
Jefferson argues the trial court erred because “[e]vidence of the gun[s] admitted here was not related to the charged crime. The only reason for admitting [them] was to paint [Jefferson] as a person who ‘surrounded himself’ with guns, a fact that was not relevant to determining whether he intentionally concealed a gun known to be stolen in the Bentley.” In admitting the evidence below, the court stated, “In this particular case it’s clear the connection between the weapons found, the intent, et cetera.” On appeal, the People make only minimal effort to justify admission of the disputed evidence on the ground that it is relevant to intent.
Regarding Jefferson’s knowledge the charged firearm was stolen, the People argue that the fact that Jefferson has possessed legally registered guns—both the firearm found in the Bentley in 2013 and the dock found on his person in 2012—demonstrated Jefferson knew how to legally acquire firearms and should have known the charged firearm was stolen. However, this chain of logic is impaired by the absence of any stipulation by the parties or instruction by the trial court explaining the details of the applicable California and federal firearm laws. Such a stipulation or instruction might have enabled the jury to make inferences from the fact that Jefferson possessed firearms registered in his name, including, potentially, inferences about how acquisition of the registered firearms differed from acquisition of the charged firearm. Those inferences might have tended to prove Jefferson should have known the charged firearm was stolen. But, absent information about firearm laws, the jury was left to speculate about the significance of Jefferson’s possession of registered firearms. And “ ‘[speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose.’ ” (People v. Babbitt (1988)
Even if the trial court did not abuse its discretion in concluding the registered firearm evidence was relevant to show Jefferson’s knowledge the charged firearm was stolen, the court abused its discretion in failing to exclude the evidence under Evidence Code section 352. The required analysis compares the probative value of the evidence and the probability of undue
On the other hand, evidence that Jefferson possessed firearms on other occasions unduly prejudiced him. “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” (People v. Karis (1988)
As to the two substantive offenses, it is a much closer question. The defense vigorously disputed whether Jefferson possessed the charged firearm, principally by challenging Tedesco’s identification of him as the person who placed it under the driver’s seat of the Bentley. But, in addition to the officer’s identification, Jefferson was located in the Porsche when that car was stopped. Jefferson’s picture was found in the Bentley in the same search that revealed the charged firearm. And one year later he drove the identical Bentley in San Francisco. The compelling nature of this evidence leads us to conclude there is no “reasonable chance” that the jury would have reached a different verdict on counts one and two had Jefferson’s challenge to the registered firearm evidence been sustained. Thus, the error in admitting this evidence does not require reversal of the convictions on those counts. Neither
C„ D.
E. Cumulative Error
Finally, Jefferson argues the cumulative effect of the trial court’s errors requires reversal of the judgment. We have concluded that only Jefferson’s claim arising from admission of the registered firearms evidence has merit. There are no additional errors to cumulate with that error.
III. Disposition
The judgment is reversed as to the true findings on the section 25400, subdivision (c)(2) special allegation on count one and the section 25850, subdivision (c)(2) special allegation on count two, and otherwise affirmed. The trial court is directed on remand to strike those true findings from the record of conviction and re-sentence appellant.
Jones, P. J., concurred.
Notes
Undesignated statutory references are to the Penal Code.
On cross-examination, Tedesco testified he thought the Bentley had dealer plates. He also testified the registered owner of the Bentley was eventually determined to be Moda Auto Lounge—a car dealership that rents and sells high-end vehicles.
On cross-examination, Tedesco testified it was getting dark when he made his observations; he did not remember if streetlights were on, whether either the Bentley or Porsche had tinted windows, or what jewelry the Bentley driver was wearing; he did not write a police report; he did not provide a facial description of the driver or notice any scars or tattoos; and he did not see how many people were in the Porsche.
Of course, section 25850, subdivision (c)(6) does not separately require that the firearm be loaded, as is required in section 25400, subdivision (c)(6)(A), because section 25850 only relates to loaded firearms.
Evidence Code section 350 provides: “No evidence is admissible except relevant evidence.”
Evidence Code section 1101, subdivision (a), provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” But, Evidence Code section 1101, subdivision (b), provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
It is worth noting that an uncharged act need not be a criminal offense to be subject to the limitations contained in Evidence Code, section 1101. (People v. McCurdy (2014)
The People argue that “[ejvidence of the gun registered in his name establishes that [Jefferson] not only drives the Bentley, but also has control over the trunk of the Bentley. The fact that he used the trunk of the Bentley to store his possessions there demonstrates the requisite general intent—that on both occasions where he stored an object in the Bentley, he was aware of his own control over the Bentley.” This argument is difficult to follow. “ ‘A crime is characterized as a “general intent” crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a “specific intent” crime when the required mental state entails an intent to cause the resulting harm.’ ” (People v. Atkins (2001)
Although the knowledge argument was not raised at the in limine stage, the prosecutor raised these arguments in his closing: “[Jefferson is] driving that car a year later, not just that day. [¶] . . . [¶] . . . [The Sig Sauer is] a stolen gun. . . . [Jefferson] knows how to register a gun. Now, this is important because [Jefferson] obviously was able to purchase a gun and register it... . Two guns; the one from San Francisco and the one that was actually found on him disassembled and inoperable .... But the fact that he knows how to lawfully obtain a weapon is really good evidence that he knows when he has unlawfully obtained a gun.”
“ ‘[A] court need not expressly weigh prejudice against probative value or even expressly state that it had done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352.’ ” (People v. Lewis (2009)
The People also assert in passing that evidence of Jefferson’s 2012 possession of the Glock was relevant and admissible in order to “explain how the police became suspicious enough of the Bentley to obtain a search warrant and investigate it.” While in certain limited circumstances such evidence might be relevant at trial or in resolving a motion to suppress, the People fail to explain why the basis for the search warrant was an issue of such importance in the present case as to outweigh the potential for undue prejudice to Jefferson. Moreover, Tedesco’s observations of the Bentley and the other contraband and suggestive evidence found in the Porsche were sufficient to justify the investigation of the Bentley, without evidence of the Glock.
See footnote, ante, page 494.
Concurrence Opinion
Concurring and Dissenting.—I share my colleagues’ views in all but one respect. I would not find that the trial court abused its discretion in admitting evidence of Gregory Jefferson’s legal possession of other firearms and affirm in all respects. I therefore respectfully dissent from the majority opinion to the extent that it holds otherwise.
The trial court, in finding the disputed evidence admissible, stated that it had “looked at the probative value versus prejudicial effect,” and that “[i]n this particular case it’s clear the connection between the weapons found, the intent, et cetera.” The majority arrives at a different conclusion and finds that the trial court abused its discretion in admitting, under Evidence Code section 1101, subdivision (b) (section 1101(b)), evidence of Jefferson’s possession of the Glock pistol in 2012, as well as the nine-millimeter firearm found in the Bentley’s trunk in 2013. I do not.
The majority first discounts the relevance of the evidence. “ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Jefferson’s plea of not guilty put every element of the charged offenses at issue. (People v. Lindberg (2008)
Prejudicial Effect
I will assume, for purposes of this discussion, that the disputed evidence here was an “other act” subject to section 1101(b), even though neither incident involved evidence of a crime or civil wrong.
In assessing prejudice, we must remember that “[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘ [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” (People v. Karis (1988)
My colleagues would strike a different balance under Evidence Code section 352 than did the trial court. It would not have been unreasonable for the trial court to have reached a similar conclusion and excluded the evidence. I disagree, however, that it was required to do so. “ ‘Under the abuse of discretion standard, “a trial court’s ruling will not be disturbed, and reversal... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Foster (2010)
The People also argue that the fact Jefferson possessed legally registered guns—the nine-millimeter firearm found in the Bentley in 2013 and the Glock found on his person in 2012—demonstrated Jefferson’s knowledge of tlje registration requirement and, inferentially, his knowledge that the Sig Sauer found under the Bentley’s floor mat was stolen. The majority first dismisses the People’s contention that Jefferson’s possession of registered firearms was relevant to his knowledge that the gun at issue here was stolen as speculative, but then concedes such possession was “arguably relevant.” Since I would find the evidence admissible as to knowledge of the presence of the Sig Sauer in the Bentley on January 18, 2012, it is unnecessary to address this additional ground for admissibility.
The majority cites People v. McCurdy (2014)