People v. Jeffers
| Decision Date | 04 January 1996 |
| Docket Number | No. F021993,F021993 |
| Citation | 49 Cal.Rptr.2d 86,41 Cal.App.4th 917 |
| Parties | , 96 Cal. Daily Op. Serv. 212, 96 Daily Journal D.A.R. 291 The PEOPLE, Plaintiff and Respondent, v. Bronico D. JEFFERS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
A jury convicted defendant, Bronico D. Jeffers, of violating PENAL CODE SECTION 120211 which makes possession of a firearm by a felon a crime. 2 At sentencing, defendant admitted his current offense was a violation of his probation for a previous conviction. He was granted three years probation for the current offense to run consecutively to the term of probation for the prior conviction 3 and was ordered to serve 150 days in local custody with 14 days credit. The court imposed a $1,000 restitution fine and directed defendant to pay $330 for the cost of preparing the presentence investigation report.
On appeal, defendant claims the trial court committed instructional error and exceeded its authority in requiring payment of the $1,000 restitution fine within 24 months of his release from custody.
On June 7, 1993, defendant entered Chuck's Gun Works in Porterville and asked to talk to Richard Maness. Charles Bodoh, a gunsmith and owner of the gun shop, told defendant Richard was busy but he could help defendant. Defendant handed Bodoh a box wrapped in a paper bag and said he was making a delivery for a friend. Bodoh unwrapped and opened the box in which he found a .380 caliber handgun. Bodoh was looking at the pistol to determine whether it was loaded when he noticed defendant was walking out the door. Bodoh called to defendant to return because he required more information to enter the gun into the log. Defendant provided his name, address and telephone number before leaving the gun shop.
Bodoh gave Maness the gun to log in while Bodoh took a telephone call. Maness noticed the serial numbers on the gun had been ground off. Bodoh contacted the Bureau of Alcohol, Tobacco and Firearms to report tampering with the serial numbers. Richard Beaudreaux, a detective with the Tulare County Sheriff's Department later confiscated the gun and contacted defendant.
Defendant told Detective Beaudreaux that he had taken the gun to the gun shop for a friend. He said a pin was missing from the trigger. His friend's name was Kent Johnson, but defendant could not tell Detective Beaudreaux how to find Johnson. He later told Detective Beaudreaux that Johnson's full name was Richard Kent Johnson. Defendant described Johnson to Beaudreaux as White, slender, six feet two inches tall and in his early twenties. Defendant said Johnson had been a roommate of another friend, Kent Rowell.
Detective Beaudreaux spoke with Rowell who corroborated defendant's story, but said the friend's name was Richard Johnson and they had never been roommates. Johnson was visiting Rowell's apartment when Rowell overheard him ask defendant to deliver something.
Detective Beaudreaux was unable to locate Richard Kent Johnson in the Porterville area and a check of Department of Motor Vehicle records revealed no such person.
Defendant does not challenge the sufficiency of the evidence to support the verdict. He claims evidence also supports the defense theory that defendant did not know what was in the package until he arrived at the gun shop and that he immediately got rid of the gun. According to defendant, had the jury been instructed properly, it is reasonably probable they could have found him not guilty of violating section 12021, subdivision (a). (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
Defendant alleges two instances of instructional error. First, the court failed to instruct regarding the required criminal intent. (CALJIC No. 3.30.) Second, the court refused defendant's pinpoint instruction which provides:
Defendant contends there is an evidentiary basis for the instruction. We agree there is evidence to support the defense theory and the trial court committed reversible instructional error.
We begin with a summary of the testimony which supports the defense theory.
Kent Rowell testified defendant delivered a pizza to Rowell's apartment on the day in question. Rowell had several visitors that day, including Richard Johnson. Rowell overheard Johnson ask defendant if he would do Johnson a favor and drop a package off for him. He heard no mention of a gun. He saw defendant leave with a shoe-box-sized parcel.
Richard Maness testified he received a telephone call at the gun shop from a man who asked if he could send in a gun to have either the barrel or the firing pin repaired. The call was before defendant brought in the gun. The voice did not sound like defendant's. Maness saw defendant enter the shop with a box wrapped in a paper bag. He overheard defendant tell the shop owner, Charles Bodoh that he was delivering the package for someone. Defendant did not say what was in the package, nor did he say it needed repair. He merely brought it to the counter, said it was a delivery and started to leave when Bodoh asked him to come back to give more information.
Bodoh testified defendant entered the shop and asked for "Richard." When Bodoh said Richard was busy, defendant said, He then turned to leave. Defendant said nothing about a gun being in the package. Bodoh unwrapped and checked to see if the gun was loaded. He testified he may also have observed a broken firing pin and said something to defendant about the problem with the gun. Bodoh called to defendant as he was leaving and said he needed to give defendant a receipt and to log in the gun. At Bodoh's request, defendant gave his name, address and telephone number before leaving.
Detective Boudreaux testified that when he spoke with defendant the following day defendant stated he received the gun from Richard Kent Johnson in a bag; he did not look in the bag and did not know what was in the bag until he arrived at the gun shop.
The following day Bodoh received a telephone call regarding the gun. The caller sounded like an older White man. Bodoh was certain it was not defendant's voice. The man was very upset that the gun had been confiscated. Bodoh asked the man if he was aware it was illegal to possess a gun without a serial number. The man said he didn't know it was illegal; he bought the gun "some time ago" to carry on his job as a truck driver. He told Bodoh he gave the gun to defendant to bring to the shop to be repaired. The caller gave his name, but Bodoh could only recall it was a very short, single syllable name like Joe, Kent or Sam.
We turn now to the applicable legal principles.
The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm. (People v. Bray (1975) 52 Cal.App.3d 494, 497 ; People v. Neese (1969) 272 Cal.App.2d 235, 245 ; People v. Nieto (1966) 247 Cal.App.2d 364, 368 .) Knowledge is also an element of the offense. (People v. Snyder (1982) 32 Cal.3d 590, 592, 186 Cal.Rptr. 485, 652 P.2d 42.)
As with any crime or public offense, in order to prove a violation of section 12021, subdivision (a), the prosecution must prove, beyond a reasonable doubt, a union, or joint operation of act and intent. (§ 20.) No specific criminal intent is required for this crime; general intent to commit the proscribed act is sufficient to sustain a conviction. (People v. Neese, supra, at p. 245, 77 Cal.Rptr. 314; People v. McCullough (1963) 222 Cal.App.2d 712, 718, 35 Cal.Rptr. 591.) The act proscribed by section 12022, subdivision (a) is possession of a firearm. Therefore, whether possession is actual or constructive, it must be intentional.
Wrongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. (People v. Snyder, supra, 32 Cal.3d at p. 598, 186 Cal.Rptr. 485, 652 P.2d 42.) A person who commits a prohibited act "through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence" has not committed a crime. (§ 26.) Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent.
Respondent argues the general intent requirement is satisfied by proof of knowledge. We agree knowledge plus physical possession may ordinarily demonstrate an intent to exercise dominion and control, but knowledge does not conclusively demonstrate such intent as a matter of law. Otherwise, a felon would be strictly liable for the crime immediately upon finding a firearm, even if found under innocent circumstances.
Although the clerk's transcript reflects the court agreed, upon the prosecution's request, to instruct the jury regarding general intent, for some undisclosed reason the court failed to do so. The offered instruction read:
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