People v. Servin

Full title: THE PEOPLE, Plaintiff and Respondent, v. MOSES GUADALUPE SERVIN, Defendant…

Court: California Court of Appeals, Fourth District, Second Division

Date published: Apr 22, 2010

No. E047394 (Cal. Ct. App. Apr. 22, 2010)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. BLF004392, David B. Downing, Judge.

Jared Phil Hanson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKinster Acting P.J.

I

INTRODUCTION

On September 4, 2008, a jury convicted defendant and appellant Moses Guadalupe Servin of unlawful possession of a firearm under Penal Code section 12021, subdivision (a)(1) (count 1); and unlawful possession of drug paraphernalia under Health and Safety Code section 11364 (count 2). Defendant waived his statutory rights to a jury trial on a prior conviction allegation, and following a bench trial, the trial court found true that defendant had previously suffered a conviction for assault with a deadly weapon, in violation of Penal Code section 245, subdivision (a).¹ Defendant was sentenced to prison for a determinate term of 32 months.

1 All statutory references are to the Penal Code unless otherwise specified.

On appeal, defendant contends that his conviction on count 1 must be reversed because the trial court erred in admitting evidence that defendant had been convicted of the charged crime on two prior occasions. For the reasons set forth below, we shall affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

On February 7, 2007, Riverside County Sheriff’s deputies searched defendant’s residence in accordance with probation conditions applicable to defendant at that time. Deputies found several glass pipes used for ingesting methamphetamine, and a rifle. Defendant told the deputies that the rifle had been given to him by a family member; it was a family heirloom. Defendant believed it was lawful to possess the rifle because it was inoperable.

A criminalist with the California Department of Justice testified that the rifle was a single-shot muzzleloader. It was manufactured in recent decades, but was a replica of a type of rifle that was common in the 19th century. The rifle was not designed to fire modern ammunition, which is characterized by self-contained cartridges. Instead, the rifle was a percussion rifle. Once the gunpowder and projectile are forced down the muzzle of the gun with a ramrod, a percussion cap is placed on a nipple mounted near the rear of the barrel. The hammer is cocked and the trigger is pulled. Then, the hammer strikes the percussion cap and ignites the gunpowder in the barrel and forces projectile out the muzzle. The barrel of the rifle was loaded with a lead ball and gunpowder, and several percussion caps were in a compartment in the rifle. The rifle, however, did not have a nipple attached to it for holding the percussion caps. Absent that nipple, the gun could not be fired safely. The criminalist stated that one could stick a lighted match inside a hole in the barrel to directly light the gunpowder. He, however, cautioned that it would not be prudent to do so.

Defendant did not testify. His fiancé testified that the rifle belonged to her. The rifle had been given to her when her father died and she did not inform defendant that the gun was in the residence.

III

ANALYSIS

Defendant contends that his conviction on count 1, unlawful possession of a firearm, under Penal Code section 12021, subdivision (a)(1), should be reversed because the court abused its discretion in admitting prior crimes evidence under Evidence Code section 352, since the evidence was more prejudicial than probative. We find no abuse of discretion.

Evidence of other crimes committed by a defendant is admissible under Evidence Code section 1101 when relevant to prove some fact, such as motive, opportunity, intent, or knowledge, other than the defendant’s propensity or disposition to commit such acts. (Evid. Code, § 1101, subd. (b).) “Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1195.) On appeal, we review the trial court’s ruling for abuse of discretion. (Ibid.) Reversal is not required unless the defendant can show the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Cain (1995) 10 Cal.4th 1, 33; People v. Alvarez (1996) 14 Cal.4th 155, 201; People v. Jones (1998) 17 Cal.4th 279, 304.)

Defendant was charged with violating section 12021, subdivision (a)(1), which makes it unlawful for a person who has been convicted of a felony to possess a firearm. Because defendant’s status as a felon is an element of the offense, the prosecution must prove that element to the jury. (People v. Stewart (2004) 33 Cal.4th 425, 478.)

In this case, the trial court admitted documentary evidence establishing that defendant suffered a felony conviction in 1997 for violating section 12021, subdivision (a).

During in limine proceedings prior to trial, defense counsel objected to the admission of evidence regarding defendant’s conviction for violating Penal Code section 12021, subdivision (a), in 1997. Defendant conceded that the evidence was relevant, but argued that it was too prejudicial, hence, it should be excluded under Evidence Code section 352. The trial court disagreed and overruled the objection.

During trial, the following information was admitted into evidence: (1) defendant had previously suffered convictions for violating section 12021, subdivision (a), in 1997 and 2005; (2) defendant was on probation for his 2005 conviction on February 7, 2007; (3) the factual basis for the 2005 conviction-that a deputy found a rifle and a shotgun, both of which were loaded, at defendant’s residence in December 2004, and that defendant admitted the rifle and shotgun were loaded. Defendant never lodged an objection to the admission of evidence that defendant suffered the 2005 conviction, to the facts underlying that conviction, or that defendant was on probation for that offense at the time of the instant offense.

When the prosecutor elicited testimony regarding defendant’s 1983 conviction for assault with a firearm, defense counsel objected under Evidence Code section 352 as being irrelevant. In response, the trial court asked the prosecutor to rephrase the question “without the reference to the strike provision....” When the prosecutor rephrased the question, he asked: “Were you aware of the 1983 conviction where the defendant sustained a conviction for an assault with a deadly weapon; in this case it would have been with a firearm?” Without further objection from defense counsel, the witness answered, “Yes.”

On appeal, defendant does not challenge the admission of evidence relating to the 1983 conviction, or to the evidence of his probation status at the time of the current offense. Instead, defendant only challenges the admission of evidence relating to the two prior convictions in 1997 and 2005, for violating section 12021.

We first note that defendant forfeited his right to challenge the admission of evidence relating to the 2005 conviction because he failed to raise a timely objection to it in the trial court. (People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8.) Indeed, defendant expressly agreed to the admission of the evidence.

As to the 1997 conviction, the trial court’s decision did not exceed bounds of reason because the evidence was both relevant and not unduly prejudicial. The evidence was relevant-as conceded by defense counsel during the in limine proceedings: “Granted, it’s relevant, shows a propensity on the occasion in the case at bar.” The evidence was also not unduly prejudicial. In this case, the jury was already going to hear, with the consent of defendant, that he had been convicted in 2005 of violating section 12021. Therefore, the additional information about the 1997 conviction was not going to cast defendant in a different light.

Moreover, even if the trial court erred in admitting the prior conviction evidence, there was no miscarriage of justice. Here, two deputies testified that, during the course of the search of defendant’s residence, defendant acknowledged his awareness of the presence of the rifle inside his home. Defendant offered no evidence contrary to those admissions made by the deputies. Therefore, even if the trial court erred in admitting the prior conviction evidence, it is not reasonably probable that the result of the trial would have been different.

IV

DISPOSITION

The judgment is affirmed.

We concur: Richli J., Miller J.