Opinion
A146247
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. RICARDO CANO VILLANUEVA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. SCR-656300 & SCR-664997)
I.
INTRODUCTION
Appellant Ricardo Cano Villanueva challenges his conviction for possession of a weapon, namely, a tire iron, in violation of Penal Code section 22210. Appellant argues the trial court erred in instructing the jury that the prosecution did not have to prove he intended to use a tire iron in his possession as a weapon. We conclude the trial court properly instructed the jury that the tire iron had to be possessed as a weapon. The error was the inclusion in the instruction of an additional sentence stating that the prosecution did not have to prove that appellant intended to use the tire iron as a weapon. We conclude the evidence overwhelmingly supported the determination that a tire iron was possessed as a weapon and not for innocent usage. Therefore, to the extent the instruction was made potentially confusing by the additional sentence, we conclude any error in the instruction was harmless.
All subsequent references are to the Penal Code unless otherwise identified.
Appellant also contends on appeal that the trial court incorrectly calculated his custody credits in two additional, unconsolidated misdemeanor cases, and those credits should be applied to these two cases. On the record before us, we cannot evaluate this argument properly, and deem it waived.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
Case Number SCR-656300
Appellant was charged in a consolidated information for case numbers SCR-656300 and SCR-650753 with two counts of possession of methamphetamine for sale in violation of Health and Safety Code section 11378 (counts one and three), possession of drug paraphernalia in violation of Health and Safety Code section 11364.1, subdivision (a) (count two), transportation for sale of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a) (count four), and possession of a weapon "of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, and sandbag," in violation of section 22210 (count five).
Appellant proceeded to a jury trial and was convicted on all counts. The court sentenced appellant to state prison for a total combined term of seven years four months on all counts, but suspended execution of the sentence and placed him on probation for three years.
Case Number SCR-664997
Appellant was charged in a separate information for case number SCR-664997 with one count of receiving a stolen automobile in violation of section 496d, subdivision (a). Appellant pleaded no contest. He was sentenced to a total prison term of eight months, which was to run consecutive to his sentence in case numbers SCR-656300 and SCR-650753, but the execution of that sentence also was suspended and he was placed on probation for a term of three years.
We only address the facts that are relevant to this appeal. The facts relating to the search of appellant's room and the stolen automobile are not necessary to our review.
Appellant was stopped by a Sonoma County sheriff's deputy on May 16, 2014, while driving his car. The deputy asked if appellant had any weapons and he responded that he had a BB gun under the seat. The deputy detained appellant outside the car to look for the gun. While conducting the search, the deputy found approximately one-half of an ounce of methamphetamine under the floor mat and another small package in the headrest. The deputy found one tire iron between the front driver's seat and center console, and another tire iron on the back seat floorboard area. The deputy testified that he "interpreted the tire iron as a weapon," so he wanted to make sure that it was not there to change a spare tire. He checked the four tires on the car, and none of them appeared to be a spare tire. There was no spare tire in the trunk of the car.
Appellant's cell phone was located in the front seat console area. The deputy saw a series of text messages between appellant and another person. Detective Brandon Vancamp, an expert on narcotics sales, testified that the text messages were about drug sales. One message read "I need some shit," which Detective Vancamp testified was slang for "I need some drugs." The individual texting appellant agreed to buy a "30," and appellant texted he would get it to the person.
Detective Vancamp also testified that the amount of methamphetamine found in appellant's car would provide roughly 74 to 149 doses of methamphetamine, demonstrating the quantity was possessed for sale.
A later search of appellant's residence revealed more methamphetamine, two digital scales, three BB guns, and a glass methamphetamine pipe.
In addition, Detective Vancamp testified about appellant's possession of the BB gun and tire irons. He noted that "[d]rug dealing is dangerous business," and that appellant could resort to using the tire irons to defend himself since they were within arm's reach in the car and readily accessible to him.
C. Jury Instruction
Following the presentation of evidence, the trial court instructed the jury as to the applicable law relating to the charged offenses. In connection with the possession of a weapon charge the jury was instructed as follows: "Defendant is charged in Count V with unlawfully possessing a weapon, specifically, a tire iron, in violation of Penal Code Section 22210. [¶] To prove the defendant guilty of this crime, the People must prove three elements. [¶] 1. That the defendant possessed a tire iron. [¶] 2. The defendant knew that he possessed the tire iron. [¶] 3. The defendant knew that the tire iron was a weapon. When deciding whether the defendant possessed the tire iron . . . as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was possessed, where the defendant was going, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.
"The People do not have to prove that the defendant intended to use the object as a weapon. A person does not have to actually hold or touch something to possess it. It is enough if the person has the right to control it, either personally or through another person."
III.
DISCUSSION
Section 22210 states that any person who "possesses any leaded cane, or any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot" is guilty of a violation of the statute. (§ 22210.)
Appellant was charged with possession of a weapon "commonly known as a blackjack, slungshot, billy, sandclub, sap, and sandbag." The trial court elected to replace the world "billy" with "tire iron" in the jury instruction. In a footnote in his brief, appellant argues this was error because the jury should have determined if the tire iron was, in fact, a billy. Appellant, however, failed to make this argument in the trial court and similarly does not properly brief or argue the point on appeal, other than make the passing reference in a footnote. Moreover, the jury found appellant guilty of possession of "a billy, blackjack, etc.," demonstrating its conclusion the tire iron was a billy. (Capitalization omitted.)
The standard form instruction provides two options distinguishing between an object that is designed solely as a weapon and an object that can be used as a weapon, but also has an innocent use (such as a tire iron). CALCRIM No. 2500 reads in part:
"<Alternative 3A—object capable of innocent uses>
"[3. The defendant (possessed . . . ) the object as a weapon. When deciding whether the defendant (possessed . . . ) the object as a weapon, consider all the surrounding circumstances relating to that question, including when and where the object was (possessed . . . )[,] [and] [where the defendant was going][,] [and] [whether the object was changed from its standard form][,] and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.(;/.)]
"<Alternative 3B—object designed solely for use as weapon>
"[3. The defendant knew that the object (was (a/an) . . . <insert characteristics of weapon, e.g., 'unusually short shotgun, penknife containing stabbing instrument'>/could be used <insert description of weapon, e.g., 'as a stabbing weapon,' or 'for purposes of offense or defense'>).] ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"<Give only if alternative 3B is given.>
"[The People do not have to prove that the defendant intended to use the object as a weapon.]" (CALCRIM No. 2500 (2016), italics omitted.)
The court instructed the jury with Alternative 3A to be used in cases where an object is capable of innocent uses as well as a use of a weapon. But, added to this alternative was the further instruction: "The People do not have to prove that the defendant intended to use the object as a weapon." Under CALCRIM No. 2500, the court is only to provide this language if it instructs pursuant to Alternative B for an object designed solely for use as a weapon. Appellant did not object to the instruction.
Appellant argues the court erred in instructing the jury that the People did not have to prove he intended to use the tire iron as a weapon.
"The prosecution need not show the intent of the possessor to use an instrument in a violent manner. [Citation.] A defendant, on the other hand, may justify his possession of an instrument found under suspicious circumstances by proof of his intent to use it in accordance with its ordinary legitimate design." (People v. Grubb (1965) 63 Cal.2d 614, 621, fn. 9 (Grubb), superseded by statute on other grounds in People v. Rubalcava (2000) 23 Cal.4th 322.) In Grubb, the court explained: "The Legislature . . . decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger. Accordingly, the statute would encompass the possession of a table leg . . . when it is detached from the table and carried at night in a 'tough' neighborhood to the scene of a riot. On the other hand the section would not penalize the Little Leaguer at bat in a baseball game." (Id. at p. 621.)
In People v. Fannin (2001) 91 Cal.App.4th 1399 (Fannin), the defendant had a metal chain with a bicycle lock attached to one end in his pocket when he was arrested. Fannin was charged with possession of a slungshot. The Fannin court held: "The prosecution bears the burden of proving the defendant possessed such an object as a weapon. The prosecution may meet that burden with circumstantial evidence, or with the defendant's statements explaining why he carried the object. On the other hand, the defendant may present evidence that he possessed the object innocently, for the purposes served by its legitimate design instead of those proscribed by Penal Code section 12020." (Fannin, at p. 1406.)
"Intent to use a weapon is not an element of the crime of weapon possession. 'Proof of possession alone is sufficient.' (People v. McKinney [1935] 9 Cal.App.2d [523,] 525.) However, if the object is not a weapon per se, but an instrument with ordinary innocent uses, the prosecution must prove that the object was possessed as a weapon. The only way to meet that burden is by evidence 'indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.'. . ." (Fannin, supra, 91 Cal.App.4th at p. 1404, citing Grubb, supra, 63 Cal.2d at pp. 620-621, italics omitted.) "The prosecution may not, however, merely show that the defendant had a table leg in his car while driving through a dangerous neighborhood, and require him to prove that he did not carry it as a weapon. Such a rule would turn the presumption of innocence on its head. Intended use is not an element of weapon possession, but the prosecution always bears the burden of proving that the defendant possessed a weapon." (Fannin, at p. 1404.) When the prosecution contends an ordinary object like a bicycle lock is a slungshot, it must prove the defendant possessed the bicycle lock as a slungshot. (Id. at p. 1405.)
This division has similarly held that objects with innocent uses may fall within the statute if the prosecution proves " 'the object was possessed as a weapon.' " (People v. Davis (2013) 214 Cal.App.4th 1322, 1327, original italics (Davis). We stated: "As explained in [People v.] King [2006] 38 Cal.4th [617,] 624, 'an item commonly used for a nonviolent purpose, such as a baseball bat or a table leg, could qualify as a billy, but only "when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose." ' . . ." (Davis, at p. 1327, italics omitted.)
While we agree with respondent that the court's instruction was legally correct because the intent to use a weapon is not an element of the statute, the court's additional instruction that the prosecution did not have to prove appellant intended to use the object as a weapon potentially was confusing. Respondent concedes that CALCRIM No. 2500 instructs the trial court not to provide the additional instruction "in order to eliminate any remote possibility of confusion between the concepts of intent to use a weapon (which is not required) and knowledge than an object could be used as a weapon[] [and not for an innocent purpose], (which is required)."
But, given the evidence presented at trial, we conclude that any error was harmless. First, we note that the record does not contain any indication that the jury was confused by the additional sentence about intent to use. The trial was held over three days, and the jury deliberation in this five-count case took only three hours. There is no indication that during the deliberations the jury raised any question indicating that it was confused about the elements of the charge in count five.
The record contains a reference to a note received from the jury early in its deliberations, which was discussed off the record with counsel. The note itself is not in the appellate record.
There was overwhelming evidence to support the jury's finding that the two tire irons were possessed as weapons. Appellant had two stashes of methamphetamine in the car, which the jury found he possessed for sale, thus creating the need to protect himself. Detective Vancamp testified about appellant's possession of the BB gun and tire irons to defend himself, noting specifically that "[d]rug dealing is dangerous business." One tire iron was between the console and the driver's seat, the other was on the floor board, and both were within arm's reach and readily accessible. Appellant also had a BB gun within reach. Further, the text messages on appellant's cell phone demonstrated he was actively engaged in drug dealing at the time he was stopped.
Although two tire irons were found in the passenger compartment of the car, only one count of a violation of section 22210 was charged. --------
Appellant argues the error was not harmless because there was only a tenuous inference that appellant possessed the tire irons as weapons. Appellant argues the jury could also draw the reasonable conclusion that appellant had tire irons in his car to change a tire.
The testimony at trial refutes appellant's assertion that the jury could have concluded he had an innocent use for the tire irons. The sheriff's deputy testified that there was no apparent legitimate need for the tire irons because there was no spare tire in the car and none of the tires on the car appeared to be spares. The tire irons were not located in the trunk or with other items required to change a tire, but one was next to the driver's seat and a second one was on the floor behind the driver's seat, both within appellant's reach. Given the deputy's testimony, it was simply unbelievable that appellant carried not one, but two, tire irons in the passenger compartment of his car in case he needed to change a tire where no spare tire was either on any of the four wheels, or in the car trunk.
In considering whether any error in this instruction was prejudicial, the parties do not address in more than a perfunctory way what standard of review applies. Appellant does argue in favor of the harmless beyond a reasonable doubt standard under Neder v. United States (1999) 527 U.S. 1, 19. We note that here the error was that the instruction "improperly describes or omits an element of an offense." (See People v. Larsen (2012) 205 Cal.App.4th 810, 829.) Thus, the asserted error may well indeed invoke the "beyond a reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18, 24 (see People v. Larsen, at pp. 829-830). Nevertheless, even applying that constitutional standard we conclude that the error was harmless beyond a reasonable doubt under the circumstances and the evidence adduced at trial.
B. Allocation of Custody Credits
To the extent we understand appellant's argument, he asserts the court improperly applied custody credits in two cases that are not before this court on appeal (Case Nos. SCR-640461 & SCR-644092) but the assignment of those credits should have been imposed in the cases that are before us (Case Nos. SCR-656300 & SCR-664997). However, as respondent points out, and appellant concedes, the calculation of the credits is not part of the record on appeal.
At the sentencing hearing on the cases before us, the trial court referenced the misdemeanor convictions in case numbers SCR-640461 and SCR-644092 and the award of 296 days of custody credit in those cases. Appellant alleges it was error for the court to award time served credit between April and May 2015 to the misdemeanor cases. Appellant contends: "So far as can be ascertained from the record on appeal, appellant was never formally found to be in violation of those forms of probation—instead, they were summarily revoked based on his arrests—nor was sentence imposed in those cases."
In his reply brief appellant makes additional arguments about the sentences in the misdemeanor cases. Without any citation to the record, he contends the court could not have properly awarded custody credits in those cases.
"It is axiomatic that it is the responsibility of the party appealing to provide an adequate record on appeal. [Citations.]" (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 849.) We do not have before us the record of how the court calculated the credits in the misdemeanor cases and we will not presume error from a silent record. Judgments and orders are presumed correct on appeal, and the appellant bears the burden of overcoming that presumption by affirmatively demonstrating reversible error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
"If a party fails to support a claim of error with argument, or support an argument with the necessary citations to the record, we may deem the argument waived. [Citations.]" (Utility Consumers' Action Network v. Public Utilities Com. (2010) 187 Cal.App.4th 688, 697.) We conclude appellant has waived any argument regarding the calculation of his custody credits.
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.