Opinion
NOT TO BE PUBLISHED
Super. Ct. No. LF009462A
NICHOLSON, J.
A jury found defendant Michael Leslie Ryall guilty of misdemeanor elder abuse (Pen. Code, § 368, subd. (c); further undesignated statutory references are to this code), misdemeanor assault (§ 240), misdemeanor threatening with a firearm (§ 417, subd. (a)(2)), and felony possession of a firearm by a previously convicted felon (§ 12021, subd. (a)). In a bifurcated trial, the court found true a special allegation that he served a prior separate prison term (§ 667.5, subd. (b)). The trial court sentenced him to an aggregate prison term of three years.
On appeal, defendant makes the following contentions: (1) the trial court erred by admitting witness testimony that defendant touched the gun, (2) the trial court failed to give the jury a unanimity instruction sua sponte regarding defendant’s possession of the gun, (3) a statement by the prosecution during closing argument impermissibly shifted the burden of proof to the defense, (4) defendant got two separate convictions for a single count, thus requiring modification of the judgment, (5) the evidence used to prove the prior prison term was insufficient, and (6) the cumulative effect of the foregoing errors requires reversal of the judgment. The People concede defendant’s fourth contention. We accept that concession and strike defendant’s conviction for misdemeanor threatening with a firearm. Agreeing with defendant’s fifth contention that the evidence is insufficient to prove the prior prison term allegation, we reverse the judgment as to that special allegation and strike the one-year sentencing enhancement related thereto. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant lived with his 70-year-old uncle, Harrison Shaver, his 76-year-old aunt, Mary Ryall, and defendant’s 22-year-old son in a house in Lodi, California. Shaver, unable to walk, was confined to a hospital bed located in what had formerly been the home’s dining room.
Because Mary Ryall shares the same surname as defendant, we will refer to her herein as Mary to avoid any confusion.
On April 30, 2006, from his hospital bed, Shaver observed the defendant in the kitchen with a rifle in his hand “pushing” and “pounding on” Mary as she tried to fix something to eat. Shaver told defendant to “leave Mary alone or he was going to get in trouble.” Defendant walked over to Shaver. Placing the barrel of the rifle against Shaver’s forehead, defendant “jacked the shell chamber” (meaning he put a shell in the chamber) and told Shaver to shut his mouth up “you old coot or I’ll put a bullet to your head.” He then struck Shaver in the forehead with the barrel of the rifle. When Shaver told defendant he would be in more trouble if he pulled the trigger, defendant again told Shaver to shut up and walked away.
Shaver testified that the rifle defendant was holding belonged to Shaver. Shaver also testified he saw defendant get the gun out of the closet and load it “a few minutes” before the confrontation with Mary in the kitchen.
Defendant put the rifle in the closet and eventually walked outside where he approached police, who were responding to an unrelated call approximately one block from defendant’s house. Defendant was arrested on an unrelated matter shortly thereafter. Although Shaver was aware the police were in the area, he did not report the incident at that time because none of the officers came to the house and defendant had already put the rifle away. He eventually reported it to someone from Adult Protective Services who came to the house sometime after defendant’s arrest.
Shaver and Mary also spoke about the incident with Officer James Landis on August 10, 2006. Mary directed Landis to the rifle in the closet. Officer Landis inspected the gun and found a shell stuck in the ejection port. When Officer Landis later questioned defendant, he denied the incident and denied ever pointing the gun at Shaver, but admitted touching the gun on occasion when he cleaned it for his uncle.
Investigators examined the rifle on August 14, 2006. No latent fingerprints were found on the gun.
Defendant was charged with elder or dependent adult abuse in violation of section 368, subdivision (b)(1) (count 1), criminal threats in violation of section 422 (count 2), assault with a firearm in violation of section 245, subdivision (a)(2) (count 3) and being a felon in possession of a firearm in violation of section 12021, subdivision (a) (count 4). The information also alleged defendant suffered a prior prison term (§ 667.5, subd. (b)) as a result of a prior conviction on March 26, 1998.
At the conclusion of trial, the jury returned the following verdicts: as to count 1, guilty of the lesser included offense of misdemeanor elder abuse; as to count 2, not guilty; as to count 3, guilty of the lesser included offense of misdemeanor assault and guilty of the lesser included offense of misdemeanor threatening with a firearm; as to count 4, guilty of felony possession of a firearm by a previously convicted felon.
Defendant waived his right to a jury trial on the prior prison term enhancement, and the court found that special allegation true.
The court denied probation and sentenced defendant to the middle term of two years, plus an additional year for the 667.5, subdivision (b), enhancement.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Admissibility of Testimony About Defendant’s Possession of a Firearm
During trial, Officer Landis testified that defendant admitted touching the rifle when he cleaned it for Shaver. Defense counsel objected on the ground that the testimony was “irrelevant unless it is in connection with the incident alleged to have occurred on or about April 30th.” The objection was overruled. On appeal, defendant contends the court erred in admitting that testimony because it was “irrelevant,” that any probative value it may have is outweighed by its prejudicial effect, and that the trial court erred by not giving a limiting instruction to the jury.
A trial court has “wide discretion” to determine the relevance of evidence, and we review its decision for abuse of discretion. (People v. Kelly (1992) 1 Cal.4th 495, 523.) “Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’” (People v. Scheid (1997) 16 Cal.4th 1, 13.)
The charges against defendant included a charge of possession of a firearm by a felon. (§ 12021, subd. (a).) Section 12021, subdivision (a)(1) provides: “Any person who has been convicted of a felony under the laws of the United States [or] the State of California, . . . who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.”
The jury was told the element of a prior felony conviction had been established by stipulation. Consequently, the only element to be proved was defendant’s possession, custody or control over the rifle. Possession may be constructive, such as when the defendant has a right to control the firearm or has dominion and control over the place where it is found, even if his or her right to exercise dominion and control over the place is shared with others. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Possession may be proved by circumstantial evidence and inferences drawn from such evidence. (People v. Glass (1975) 44 Cal.App.3d 772, 774.) Defendant’s contact with the rifle, whether to clean it, move it, hold it, load it, unload it or otherwise touch it was directly relevant to the issue of possession. The jury could also infer, from the fact that defendant cleaned the rifle on occasion, that defendant knew the rifle was kept in the house, knew where it was kept and had the ability (albeit shared with the other occupants of the house) to control the rifle on the day in question. A trial court’s exercise of discretion “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Judged by this standard, we perceive no abuse of discretion.
As for the contention that the portion of testimony in question should have been excluded under Evidence Code section 352, we point out that a general relevance objection is not the equivalent of an objection based on Evidence Code section 352. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.) At trial, the only objection made to Officer Landis’s recitation of defendant’s admission was that it was not relevant. Because there was no specific Evidence Code section 352 objection at trial, this argument was not properly preserved for review. (Evid. Code, § 353; People v. Kirkpatrick, supra, 7 Cal.4th at pp. 1014-1015.)
Similarly, to the extent defendant’s appeal is based on the contention that the court erred by failing to give a limiting instruction, he did not object on that ground at trial and therefore has not preserved that claim for appeal. (Evid. Code, § 353; People v. Clark (1992) 3 Cal.4th 41, 125-126 [trial court’s rulings on admissibility of evidence will not be reviewed in the absence of a timely and specific objection on the ground urged on appeal].)
II
Unanimity Instruction Regarding Possession of the Firearm
Defendant argues a sua sponte unanimity instruction was required because “[t]he prosecution presented evidence of many separate acts committed by [defendant] that satisfied the crime of being a felon in possession of a firearm” and “the evidence was such that a reasonable jury could disagree over whether [defendant] had committed any one of them.” The People disagree, contending no unanimity instruction was required because defendant “engaged in a continuous course of conduct,” and any failure to give such an instruction was harmless.
“[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) However, a unanimity instruction is not necessary “where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place . . . .” (People v. Crawford (1982) 131 Cal.App.3d 591, 599; see also People v. Riel (2000) 22 Cal.4th 1153, 1199.)
“The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [defendant] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (People v. Russo, supra, 25 Cal.4th at pp. 1134-1135.)
As discussed previously in part I of this opinion, defendant was charged with being a felon in possession of a firearm. (§ 12021, subd. (a).) Specifically, count 4 of the information alleges defendant committed that offense on April 30, 2006. Regarding events that occurred on that day, Shaver testified that (1) he saw defendant loading the rifle sometime “earlier” in the day, (2) defendant took the rifle out of the closet, (3) within “a few minutes,” defendant was holding the rifle while he was standing in the kitchen hurting Mary, (4) when Shaver told him to stop, defendant carried the rifle into the dining room and pointed it at Shaver’s forehead and threatened to “put a bullet to [his] head,” (5) defendant “smacked” Shaver in the forehead with the rifle, and (6) defendant put the rifle back in the closet. Shaver also testified that defendant fired the rifle into the air that evening.
We agree that these are not discrete criminal events, but instead represent one transaction or continuous course of conduct during which defendant accessed the rifle, carried it around, perhaps fired it into the air, loaded and/or unloaded it and used it to intimidate Mary and threaten and assault Shaver, all on April 30, 2006. The verdicts confirm the fact that the jury believed Shaver’s testimony that defendant threatened him with the rifle. Consequently, it follows that the jury believed Shaver’s testimony that defendant, a convicted felon, possessed the rifle that day. Unanimity as to exactly how he possessed it (i.e., whether while loading it, standing in the kitchen with it, pointing it at Shaver’s forehead or firing it into the air) is not required. (People v. Russo, supra, 25 Cal.4th at pp. 1134-1135.)
In any event, the trial court’s failure to give a unanimity instruction sua sponte is harmless “[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any . . . .” (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) As previously noted, Shaver testified regarding defendant’s contact with and use of the gun throughout the day on April 30, 2006. The jury evidently believed Shaver, as demonstrated by its unanimous verdict that defendant used the rifle to threaten Shaver. Defendant argues the verdicts reflect the fact that the jury disbelieved some of Shaver’s testimony and therefore likely disagreed “as to which act of possession each [juror] believed [defendant] committed.” As the People correctly point out, there is nothing in the record to suggest the jury was confused about which act constituted the crime of possession of a firearm by a felon. The guilty verdicts (and particularly those on the lesser included offenses) suggest the jury believed the entire transaction occurred, but disagreed as to the severity of the crimes charged. There is ample evidence in the record to support the conclusion that defendant had possession, custody or control over the rifle during that transaction on April 30, 2006.
III
No Improper Shifting of Burden of Proof
Defendant contends a remark in the prosecution’s closing statement -- i.e., “[t]here are no facts that support the innocence of [the defendant]” -- was an improper attempt to shift the burden of proof, requiring reversal. (People v. Woods (2006) 146 Cal.App.4th 106 (Woods).) We disagree.
In Woods, the Court of Appeal found prejudicial misconduct by the prosecutor who improperly vouched for a prosecution witness during closing argument and argued facts outside the record by asserting that no evidence of the witness’s misconduct existed, knowing that assertion to be false. (Woods, supra, 146 Cal.App.4th at pp. 112-119.) The trial court overruled defendant’s objections to the comments and gave no admonitions to the jury during argument. The appellate court reversed the judgment based on the cumulative effect of the misconduct. (Id. at p. 119.) The facts here are distinguishable from Woods.
Here, defense counsel did not suggest that there were “facts” outside of the record by arguing matters not in evidence (People v. Benson (1990) 52 Cal.3d 754, 794–795), nor did she suggest that matters outside the record established the veracity of a witness. (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Her remarks did not constitute an attack on the integrity of defense counsel. (People v. Bell (1989) 49 Cal.3d 502, 538.) Placed into context with her immediately preceding remarks, particularly, “if the facts are on your side, talk about the facts . . . if the facts are not on your side, talk about the law,” it is reasonable to conclude the prosecution was commenting on the state of the evidence (i.e., that the facts were not on defendant’s side), not attempting to shift the burden of proof to defendant, as might have been the case had counsel alluded to facts not in evidence or argued defendant had a duty to prove his own innocence.
“A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. [Citation.] Comments on the state of the evidence or on the defense’s failure to call logical witnesses, introduce material evidence, or rebut the People’s case are generally permissible. [Citation.] However, a prosecutor may not suggest that ‘a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ [Citations.]” (Woods, supra, 146 Cal.App.4th at p. 112.) Unlike Woods, the prosecution did not suggest, either expressly or by implication, that defense counsel had an “obligation” to present evidence. (Id. at p. 113.) The prosecution merely commented on the state of the evidence. We conclude there was no error.
IV
Improper Multiple Convictions for a Single Count
Defendant contends, and the People concede, that the court erred in entering two separate convictions (i.e., misdemeanor assault and misdemeanor threatening with a firearm) under count 3, and that the error requires modification of the judgment. We accept the People’s concession and strike the conviction for misdemeanor threatening with a firearm (§ 417, subd. (a)(2)). (People v. Smith (1960) 185 Cal.App.2d 638, 641.)
V
Proof of Prior Prison Term Enhancement
At the bifurcated trial on the prior prison term enhancement (§ 667.5, subd. (b)), the prosecution’s sole piece of evidence, exhibit 4, was a second amended abstract of judgment related to defendant’s prior two-year prison term commitment for a conviction on March 6, 1998. Defendant contends that document was insufficient by itself to prove all of the elements necessary for imposition of a sentencing enhancement pursuant to section 667.5, subdivision (b) (hereafter section 667.5(b)). We agree.
Section 667.5(b), at the time defendant was sentenced, provided that enhancement of a prison term for a new offense because of a prior prison term shall be imposed “where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” (Stats. 2006, ch. 337 (SB 1128) § 30.)
Imposition of a section 667.5(b) enhancement “requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563 (Tenner).)
This element is often referred to as the “five-year washout period.”
We review the record in the light most favorable to the judgment (People v. Green (1980) 27 Cal.3d 1, 55) to determine whether substantial evidence supports the trial court’s conclusion that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Elmore (1990) 225 Cal.App.3d 953, 960.)
In Tenner, the prosecution offered a copy of the abstract of judgment and form of commitment to state prison to support the section 667.5 enhancement. (Tenner, supra, 6 Cal.4th at p. 563.) The court held that it was reasonable to infer from the abstract of judgment “that the official into whose custody defendant was placed upon imposition of sentence regularly performed his or her duty to convey the defendant to prison” and “that prison officials regularly performed their duty to see that defendant’s sentence was carried out.” (Id. at p. 566.) The high court concluded that “[t]hese reasonable inferences, together with evidence indicating that defendant was out of custody when he committed the later offense, support a finding that defendant completed a prior prison term.” (Ibid.)
Here, the prosecution offered the abstract alone as the basis for proving the enhancement. Based on that document, defendant argues the five-year washout period would apply because his sentence was pronounced on January 26, 2000, at which time he had already earned 498 days of presentence custody credits, leaving just 232 days to be served on his two-year sentence. Consequently, he urges, under the worst case scenario (i.e., assuming no conduct credits), he would have completed his time of incarceration on “approximately September 27, 2000,” well beyond the five-year washout period before the new offense on April 30, 2006.
The People argue defendant’s sentence was not pronounced until February 21, 2001, and his two-year commitment would not have ended until February 21, 2003, thereby negating the five-year washout period prior to April 30, 2006. The People are wrong.
“[T]he prosecution bears the burden of proving each element of a sentence enhancement beyond a reasonable doubt; a reviewing court must review the record in the light most favorable to the judgment to determine whether substantial evidence supports the factfinder’s conclusion, i.e., whether a reasonable trier of fact could have found that the prosecution had sustained its burden of proving the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Jones (1999) 75 Cal.App.4th 616, 631.) “Reversal . . . is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The trial court’s conclusion is not supported by substantial evidence.
The abstract of judgment offered by the prosecution as the sole piece of evidence to prove the section 667.5(b) enhancement is actually the original abstract, coupled with an amended abstract and a second amended abstract. The original abstract, filed with the court on February 1, 2000, and certified by the clerk on April 12, 2000, shows sentence was pronounced on January 26, 2000. The first amended abstract, filed with the court on April 12, 2000, and certified by the clerk on January 31, 2000, shows that as well. The second amended abstract, filed with the court on February 21, 2001, and certified by the clerk on February 21, 2001, shows sentence was pronounced on January 26, 2000, and notes defendant is “currently serving sentence.” The original abstract and the second amended abstract both reflect total presentence custody credits of 498 days. The first amended abstract does not reflect any custody credits.
The only consistent fact among the three versions of the abstract is the fact that defendant’s sentence was pronounced on January 26, 2000. At best, we can infer from that information that defendant was delivered to the Department of Corrections and Rehabilitation and began serving his two-year sentence on that date. Applying the 498 days of custody credits, defendant would have 232 days remaining on his sentence. As defendant suggests, under the worst case scenario (i.e., assuming no additional conduct credits), he would have completed his sentence on or about September 26, 2000. The new offense occurred on March 30, 2006, approximately six months after the five-year “washout” period would already have expired.
In the absence of any other evidence that defendant failed to remain free of prison custody and the commission of any new offense resulting in a felony conviction during that five-year period, we can discern no scenario under which the documentation offered at trial suffices as substantial evidence to support defendant’s conviction for the prior prison term enhancement under section 667.5(b). (People v. Bolin, supra, 18 Cal.4th at p. 331.)
VI
No Cumulative Error
Defendant contends that the cumulative effect of the aforementioned errors requires reversal. Given our disposition of defendant’s other contentions in parts I through V of this opinion, we need not address this contention.
DISPOSITION
We affirm the judgment of conviction for misdemeanor elder abuse, misdemeanor assault, and felony possession of a firearm by a previously convicted felon. The redundant conviction for misdemeanor threatening with a firearm (§ 417, subd. (a)(2)) is dismissed. The conviction for the prior prison term enhancement (§ 667.5, subd. (b)) is reversed for insufficient evidence. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P.J., DAVIS, J.