People v. Hurtado

• Decision Date: 19 July 1996
• Docket Number: No. H014250,H014250
• Citation: 54 Cal.Rptr.2d 853,47 Cal.App.4th 805
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5397, 96 Daily Journal D.A.R. 8745 The PEOPLE, Plaintiff and Respondent, v. Frank Javier HURTADO, Defendant and Appellant.

Page 853

54 Cal.Rptr.2d 853

47 Cal.App.4th 805, 96 Cal. Daily Op. Serv. 5397,

96 Daily Journal D.A.R. 8745

The PEOPLE, Plaintiff and Respondent, v. Frank Javier HURTADO, Defendant and Appellant.

No. H014250.

Court of Appeal, Sixth District, California.

July 19, 1996.

As Modified July 29, 1996.

Rehearing Denied Aug. 7, 1996.

[47 Cal.App.4th 807] Eileen S. Kotler, under Appointment by the Court of Appeal, San Francisco, for Defendant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Seth K. Schalit, Deputy Attorney General, for Respondent.

COTTLE, Presiding Justice.

Defendant Frank Javier Hurtado was charged by information with being a felon in possession of a firearm (Pen.Code, § 12021, subd. (a)), ¹ carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1)), carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)), and driving with a suspended license (Veh.Code, § 14601.1). The information alleged defendant had served a prior prison term (§ 667.5, subd. (b)) and was subject to the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12). After defendant pleaded guilty to driving on a suspended license, a jury found him not guilty of being a felon in possession of a firearm and guilty of carrying a concealed firearm and carrying a loaded firearm. In a separate proceeding, the trial court found the section 667.5, subdivision (b) enhancement true. The court sentenced defendant to 32 months in state prison. On appeal defendant contends the trial court committed instructional error by (1) failing to instruct, pursuant to CALJIC No. 12.06, that temporary possession for disposal can be a defense to carrying a concealed and a loaded weapon, and (2) giving the new version of CALJIC No. 2.90 on reasonable doubt. He contends the trial court also committed sentencing error by (1) using his prior burglary conviction both to make the crime of carrying a concealed weapon in a vehicle into a felony and as a first strike, and (2) imposing a concurrent sentence for carrying a loaded weapon in violation of section 654.

FACTS

In January 1995, ² defendant lived on Waterman Court in San Jose with his girlfriend Christina Avila and her son, 11-year-old Willy Menchaca. While walking home on or about January 3, Willy found a chrome-colored gun with two bullets in the open cylinder and two more bullets on the ground. Willy closed the cylinder, put the gun in his belt, picked up the two bullets from the ground, and put them in his pocket. When he returned home, Willy gave the gun and extra bullets to defendant. Defendant opened and closed the cylinder and then told When Avila returned from work, defendant picked the gun up from a counter in the garage and showed it to her. Avila, who has two children and whose younger brother was killed with a gun, became very upset, and told him to "[g]et it away" from the house. Defendant said "fine," that "he'd take care of it for [Avila]."

Willy to go play and that he would "take care" of the gun.

Avila next saw the gun on January 6; it was on the garage counter wrapped in a towel. Defendant and Avila argued in the garage; she wanted him to leave with the gun in order to get it out of the house. Defendant wanted Avila to take the gun out herself.

Defendant's sister, Miriam Avalos, was at the house when defendant and Avila were arguing. Defendant told Avalos how Willy had found the gun. Defendant said he was "going to get rid of it" but did not know what to do. He added he was afraid to take it to police, not knowing whether the weapon had been used in a crime and knowing that his fingerprints might now be on the gun. Avalos asked defendant to get rid of the gun, inquiring, "Why don't you turn it into the cops?" Defendant said, "That's what I've been trying to do" and asked Avalos to take it for him. Similarly concerned with the gun's history, Avalos refused to do so. When Avalos asked if he knew whether the gun was loaded, defendant said, " 'I don't know.' "

After this conversation, defendant went to his car, put the gun in his gym bag, and put the bag back in the car, telling Avalos, " 'I know about the three strikes law. I'm not stupid enough to do anything stupid with it.' ..."

At 5:15 p.m. on January 6, defendant was driving Avila's car when Santa Clara County Deputy Sheriff Contreras stopped him for a traffic violation. When Contreras informed defendant the car was going to be towed, ³ defendant asked "[n]umerous times" if he could retrieve his gym bag from the car. The bag was behind the driver's seat, slightly to the right. Before the deputy opened the bag to perform an inventory, defendant stated, " 'it's just got my shower stuff.' " In fact, it contained a variety of personal items and, on the top, a .38 caliber chrome revolver. Five of the six chambers were loaded.

Contreras testified that, "as part of police practice in general," a police officer would go to someone's house and pick up and dispose of a gun if asked to do so, even if the citizen identified himself as a felon.

The parties stipulated defendant previously had been convicted of a felony.

Defendant did not testify.

DISCUSSION

Instructions Regarding Temporary Possession

Defendant contends the trial court should have instructed the jury that temporary possession for purposes of disposal was a defense to the two carrying charges, instead of limiting the temporary possession defense to the felon in possession charge, because "the concept of possession is implicit in the definition of ... 'carrying' a firearm."

The law is not settled with regard to whether a felon in possession of a firearm is entitled to a temporary possession for disposal defense. The law is similarly unsettled as to the scope of that defense, assuming a felon is entitled to it at all. Before reaching the issue whether defendant was entitled to instructions on a temporary possession for disposal defense regarding carrying a concealed or a loaded weapon, we first consider whether the trial court in this case was required to give such an instruction for the felon in possession of a firearm charge.

The defense of temporary possession for purposes of disposal arose from People v. Mijares (1971) 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115. There, the "principal question presented [was] whether the act of handling a narcotic for the sole purpose of disposal constitutes 'possession' within the meaning of" former Health and Safety Code section 11500. (Id., at p. 417, 99 Cal.Rptr 139, 491 P.2d 1115.) The defendant in Mijares removed an object from the pocket of the passenger in his car and threw it into a field. He then drove his friend, who was suffering from a heroin overdose, to a fire station. The victim was taken away by ambulance. The defendant shouted his license plate number to a fireman and left, only to return in less than a minute and wait for the police. The authorities recovered the object tossed into the field and concluded it contained heroin and related paraphernalia. (Id., at pp. 417-418, 99 Cal.Rptr. 139, 491 P.2d 1115.) The Supreme Court noted that "in throwing the heroin out of the car, [the defendant] maintained momentary possession for the sole purpose of putting an end to the unlawful possession of [the passenger]." (Id., at p. 420, 99 Cal.Rptr. 139, 491 P.2d 1115.) However, the physical control inherent "during the brief moment involved in abandoning the narcotic" was not possession for purposes of the statute. (Id., at p. 422, 99 Cal.Rptr. 139, 491 P.2d 1115.) ⁴ The court reasoned that if such transitory control were to constitute possession, "manifest injustice to admittedly innocent individuals" could result. (Ibid.) As an example, the court referred to the witness who saw the defendant throw the object. Had she "briefly picked up the package and identified the substance as heroin and then placed the outfit back on the ground, during the time after she had realized its narcotic character she, too, would have been guilty of possession under an unduly strict reading [of the statute], notwithstanding the fact that her transitory handling of the contraband might have been motivated solely by curiosity." (Ibid.) The court refused to "read the possession statutes to authorize convictions under such guileless circumstances." (Ibid.)

Mijares was the impetus for the initial version of CALJIC No. 12.06, "MOMENTARY POSSESSION AS NOT UNLAWFUL," which provided that possession of an item is not unlawful where all four of the following conditions were met: (1) possession is "momentary" and "based on neither ownership nor the right to exercise control over" the item; (2) the item is "possessed in furtherance of its abandonment or destruction"; (3) the item is possessed "for the purpose of terminating the unlawful possession of it by another person or preventing another person from acquiring possession of it"; and (4) "control is not exercised over the [item] for the purpose of preventing its imminent seizure by law enforcement." (Original version CALJIC No. 12.06.) ⁵

Citing Mijares, the California Supreme Court in People v. King (1978) 22 Cal.3d 12, 24, 148 Cal.Rptr. 409, 582 P.2d 1000, held that it was a defense to a charge of possession of a firearm by a felon that the possession was in self-defense. In People v. Booker (1978) 77 Cal.App.3d 223, 225, 143 Cal.Rptr. 482, the Second District held that a felon who, at his sister's request, took her revolver to a pawnshop to sell it, was not entitled to a "momentary possession" instruction because his possession of the revolver as he walked four blocks to the pawnshop was not "momentary" within the meaning of Mijares.

CALJIC No. 12.06 was revised in 1989 based on People v. Cole (1988) 202 Cal.App.3d 1439, 249 Cal.Rptr. 601, in which the Second District concluded that the holding of Mijares "is not limited to possession for ...