Opinion
On appeal from a judgment of conviction entered upon a jury verdict of guilty of a violation of Penal Code
Facts
The relevant facts are as follows:
Upon his release from prison in late August 1977, defendant resided intermittently with his wife Valerie and his parents, listing the Gilroy residence of his wife with parole authorities as his legal residence. In the course of a parole search of a car driven by defendant in early October 1977, the locked trunk yielded a loaded Remington .270 pump rifle together with several rounds of .270 and .357 calibre ammunition, a pair of surgical gloves and a knit cap. Defendant, while acknowledging use of the car on several occasions, denied any knowledge of the contraband or other items found in the trunk contending he never had the trunk key which his wife reported as missing prior to his release from prison. The car, owned by defendant’s father, had been driven by various members of the Cordova family. Defendant’s father testified that he discovered the trunk key was missing sometime in mid-August 1977; other family members confirmed the key’s absence, one testifying it was missing as early as mid-September 1977. During trial evidence was admitted over objection concerning Valerie’s possession of two boxes of similar calibre ammunition and the store manager’s testimony corroborating Valerie’s purchase of the ammunition in late September 1977; defendant denied any knowledge of such ammunition.
Defendant generally challenges the sufficiency of the evidence relating to his knowledge of the presence of the rifle in the locked trunk; he
Issue
The sole disputed issue under the charge of violating section 12560
I. Admissibility and Sufficiency of the Evidence.
Generally, evidence possessing “any tendency in reason to prove or disprove any disputed [material] fact” is relevant (Evid. Code, § 210) and admissible unless otherwise provided by statute (see Evid. Code, §§ 350-351; Witkin, Cal. Evidence (2d ed. 1966) §§ 302, 313-314, pp. 266-267, 275-278, and authorities there collected); the relative strength or weakness of such evidence is to be determined by the jury. (People v. Demond (1976) 59 Cal.App.3d 574, 588-589 [130 Cal.Rptr. 590]; People v. Slocum (1975) 52 Cal.App.3d 867, 891 [125 Cal.Rptr. 442] [cert. den. 426 U.S. 924 (49 L.Ed.2d 379, 96 S.Ct. 2635)].) Such relevancy is not restricted to a precise factual issue alone but equally applies when “it tends to establish a fact from which the existence ... of [another] fact in issue can be directly inferred.” (People v. Warner (1969) 270 Cal.App.2d 900, 908 [76 Cal.Rptr. 160]; People v. Jones (1954) 42 Cal.2d 219, 222 [266 P.2d 38]; see Evid. Code, § 600, subd. (b); see also Witkin, op. cit., pp. 275-276.)
The proscribed possession requires a showing that the defendant exercised dominion and control over the weapon with knowledge of its presence and nature (People v. Prochnau (1967) 251 Cal.App.2d 22, 30 [59 Cal.Rptr. 265]); but the specific intent to commit the unlawful act is not required. (Cf. People v. Mendoza (1967) 251 Cal.App.2d 835, 843 [60 Cal.Rptr. 5]; People v. Nieto (1966) 247 Cal.App.2d 364, 368 [55 Cal.Rptr. 546] [cert. den. 387 U.S. 911 (18 L.Ed.2d 632, 87 S.Ct. 1698)] [§ 12021 violations].) Of course, proof of guilt may be established by circumstan
On appeal, viewing the evidence in a light favorable to the judgment, we need determine only whether substantial evidence exists to support the findings and conclusions below and not “whether guilt is established beyond a reasonable doubt.” (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321]; accord People v. Reilly, supra, 3 Cal.3d 421, 425; People v. Mosher (1969) 1 Cal.3d 379, 395 [82 Cal.Rptr. 379, 461 P.2d 659].) Due process is satisfied when it can be determined that based upon such evidence “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307 [61 L.Ed.2d 560, 573-574, 99 S.Ct. 2781].) Applying that standard, we conclude that defendant’s conviction of the unlawful possession of a firearm was amply supported by substantial evidence under both state and federal law. We find no error as claimed.
II. Sentencing Error
Defendant next contends that the two-year sentence imposed exceeded the maximum punishment prescribed under the statute. He is mistaken.
Prior to its revision as a part of the comprehensive determinate sentencing law (Stats. 1976, ch. 1139, § 321), the underlying section provided in relevant part for punishment by “imprisonment in the state prison not exceeding 15 years, or in a county jail not exceeding one year . . . .” (Stats. 1965, ch. 931, § 4.) The 1976 legislation, in deleting the prior provision of an indeterminate term of 15 years’ imprisonment, simultaneously amended the general language of Penal Code section 18 (relating to punishment for felonies not otherwise prescribed by law) to provide a fixed term of imprisonment for every offense “declared to be a felony, or . . . punishable by imprisonment in state prison . . . .”
Judgment affirmed.
Elkington, J., and Newsom, J., concurred.
Unless otherwise indicated, all statutory references are to the Penal Code.
Section 12560, as amended, provides in pertinent part: “Every person who has been convicted of a felony . . . and who used a firearm in the commission of such felony, who owns or has in his possession or under his custody or control any firearm is punishable by imprisonment in the state prison or in a county jail not exceeding one year or by a fine not exceeding five hundred dollars ($500), or by both such term of imprisonment and such fine.” (Amended by Stats. 1976, ch. 1139, § 321, operative July 1, 1977.)
Defendant’s prior felony conviction (§ 245, subd. (a)) involving the use of a firearm (a shotgun) is undisputed.
Section 18, as amended (Stats. 1976 ch. 1139, p. 5089) provides in pertinent part: “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in state prison, is punishable by imprisonment in any of the state prisons, for 16 months, or two or three years. . . .”
Since the record demonstrates that defendant served more than one prior prison term for purposes of enhancement under section 667.5, subdivision (b), we need not discuss the issue raised in the supplemental briefs concerning dual use of defendant’s felony conviction as an element of the underlying offense. (Cf. People v. Roberson (1978) 81 Cal.App.3d 890 [146 Cal.Rptr. 777].)
