People v. Padilla

• Decision Date: 01 May 2002
• Docket Number: No. B148513.,B148513.
• Citation: People v. Padilla, 119 Cal.Rptr.2d 457, 98 Cal.App.4th 127 (Cal. App. 2002)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ernest PADILLA, Defendant and Appellant.

119 Cal.Rptr.2d 457

98 Cal.App.4th 127

The PEOPLE, Plaintiff and Respondent, v. Ernest PADILLA, Defendant and Appellant.

No. B148513.

Court of Appeal, Second District, Division 4.

May 1, 2002.

Certified for Partial Publication.^*

Review Denied July 17, 2002.

Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Theresa A. Cochrane, Deputy Attorney General, for Plaintiff and Respondent.

CHARLES S. VOGEL, P.J.

I INTRODUCTION

Preparing to stop a vehicle for Vehicle Code violations, sheriffs deputies observed appellant Ernest Padilla, the right front passenger, making a motion as if stuffing an object between the passenger and driver seats. After stopping and searching the vehicle they found a concealable handgun in that area. A jury convicted appellant, as charged in two counts, of possession of a firearm by a convicted felon (Pen.Code, § 12021, subd. (a)(1)) and carrying a concealed firearm in a vehicle while an occupant of the vehicle. (Pen.Code, § 12025, subd. (a)(3).)¹ The court found true the allegations of prior serious felony convictions and sentenced appellant to prison for 25 years to life under the "Three Strikes" law. (§ 667, subds.(b)-(i).)

Appellant contends that due to trial court and trial counsel error, the jury was inadequately instructed on the elements and defenses relating to both charges. He adds that in any event the evidence is insufficient to support either conviction. He further contends one of the counts should be vacated on the ground it is a lesser included offense of the other. We reject these contentions in the published portion of this opinion.

In the nonpublished portion of this opinion, we address his additional contentions the court prejudicially erred in refusing to suppress evidence of a statement made by him while detained in a patrol car, the giving of CALJIC No. 17.41.1 on juror misconduct deprived him of rights associated with jury trial, the court erred in limiting conduct credits, and the abstract of judgment has errors. We agree only with appellant's minor contentions that conduct credits were miscalculated and the enhancements under section 667.5 were "stricken" as distinguished from "stayed." We therefore modify and affirm the judgment.

II FACTS

Los Angeles County Sheriffs Deputies Murray Simpkins and Daniel Spitulski were on patrol when they noticed a Cadillac with three occupants. The Cadillac did not have a front license plate, and the right front passenger, appellant, was not wearing a seatbelt. The deputies got behind the Cadillac and lit the patrol car's overhead lights to initiate a traffic stop.

The Cadillac did not immediately pull over. It continued traveling almost a city block. From immediately behind in their patrol car the deputies observed motions made by appellant that continued until the Cadillac finally pulled over. At trial both deputies described these motions in detail, and Deputy Simpkins demonstrated them to the jury. The described lifting of the right shoulder, turning of the head and body to the left, and repeated up and down motions toward the center area of the front seat gave the appearance of appellant's reaching for something from his right pocket or waistband and then "stuffing" something down in the center area of the seat.

When the Cadillac pulled over, Deputy Simpkins asked appellant to get out and placed appellant in the rear seat of the patrol car. The driver, Richard Marquez, and the rear seat passenger, appellant's father, were also ordered out of the Cadillac and were detained near the curb by Deputy Spitulski. Deputy Simpkins then went into the Cadillac to the center frontseat area toward which appellant had made the stuffing motion. The front seat was the split bench seat type: the driver and passenger sections of the front seat were independently adjustable; there was no center console but rather a gap between the two portions of the split bench seat. The gap was big enough that Deputy Simpkins could insert his hand between the seats without touching them. Deputy Simpkins could see in the gap a Kleenex box and the grip end of a gun protruding from under the Kleenex box.

Deputy Simpkins momentarily left the gun there. He alerted Deputy Spitulski privately by code words, then returned to the patrol vehicle to talk to appellant.

Deputy Simpkins did not tell appellant he had found a gun. He simply asked appellant, "What else is in the car?" Appellant said nothing, and Deputy Simpkins repeated the question. Appellant said, "There's nothing else in there but the gun."

Deputy Simpkins then retrieved the gun, a loaded .25 caliber handgun. Appellant was arrested and taken to a police station. After appellant was advised of and waived his constitutional rights, Deputy Simpkins asked him about the gun. Appellant stated the gun was not his, it was Marquez's; appellant was unaware of it until Marquez threw it at him or tossed it to him; after Marquez gave it to him, appellant stuffed it in the seat.

Appellant did not testify at trial but relied on this statement as his defense. Marquez testified for the prosecution that the gun was not his and he had no knowledge of it.

III

CONTENTIONS RELATING TO ELEMENTS OF AND DEFENSES TO THE CHARGES

Section 12025, Subdivision (a)(3)

Section 12025, subdivision (a)(3) provides: "(a) A person is guilty of carrying a concealed firearm when he or she does any of the following: [¶] ... [¶] (3) Causes to be earned concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person." (Italics added.)

Appellant contends violation of the statute requires proof that the accused occupant brought the gun into the car. Based on this premise he contends (1) his conviction should be reversed for insufficiency of evidence to establish this supposed element and (2) his conviction should be reversed because the court responded to a jury question on this precise point by instructing the jury, "Causes to be carried concealed within any vehicle in which he or she is an occupant can mean an occupant personally bringing a firearm into a vehicle and then concealing it, or the occupant concealing a firearm in a vehicle that he or she did not bring into the vehicle." (Italics added.)

Appellant's premise is erroneous. The statute does not require the accused to have brought the gun into the car.

When statutory language is clear, courts do not resort to other aids to determine legislative intent. (People v. Robles (2000) 23 Cal.4th 1106, 1111, 99 Cal. Rptr.2d 120, 5 P.3d 176.) The statutory language in section 12025 does not state the requirement asserted by appellant. By using the phrase "[clauses to be carried concealed within any vehicle," the Legislature clearly intended to impose broader criminal liability than suggested by appellant.

In any event, legislative history and a commonsense interpretation of the ordinary meaning of the words support the instruction given by the trial court. (People v. Robles, supra, 23 Cal.4th at p. 1111, 99 Cal.Rptr.2d 120, 5 P.3d 176.) Subdivision (a)(3) of section 12025 was added by chapter 459 of the Statutes of 1997 (AB No. 304). The already existing subdivision (a)(1) and (2) punished those who (1) carried a gun "concealed within any vehicle which is under his or her control," or (2) carried a gun "concealed upon his or her person." The report of the Assembly Committee on Public Safety described the new provision subdivision (a)(3), as follows: "Passengers Hiding Guns. [¶] a) Current law. Under current law, if a gun is carried concealed in a vehicle and it is not on the person of a passenger, then only the driver may be prosecuted for a concealed carrying violation. The Los Angeles District Attorney's office has had several cases wherein passengers who were gang member[s] hid guns in vehicles in such a manner that only the driver may be prosecuted. In addition, there have been cases wherein the passenger `set up' the driver by hiding the gun unbeknownst to the driver. [¶] b) AB 304 At the request of the Los Angeles District Attorney's office, this bill amends Section 12025 to specifically make it a crime applicable to the occupant when the occupant of the vehicle causes to be carried a concealed handgun within any vehicle in which he or she is an occupant." (Assem. Com. on Public Safety, Report on AB 304, 1997-1998 Reg. Sess., April 8,1997, p. 6.)

Appellant caused the gun to be carried concealed in a vehicle in which he was an occupant, by concealing the gun between the seats. His conduct fits the language and purpose of the statute. The prosecution was not required to prove that appellant initially brought the gun into the car. The evidence was sufficient to support appellant's conviction, and the trial court's response to the jury question was correct.

Defense of Unintentional Temporary Possession

At the police station after advisement of his constitutional rights, appellant stated that the gun belonged to Marquez and appellant was unaware of it until Marquez threw it to appellant, then appellant stuffed it in the seat. Appellant did not testify at trial but relied on this prior statement for his defense.

Appellant contends this statement, if believed, would constitute a complete defense to both charges, possession of a firearm by a convicted felon, and causing a firearm to be carried concealed in a vehicle. Based on this premise he contends (1) trial counsel was incompetent for failing to request a "pinpoint" jury instruction that appellant's unintentional temporary possession would constitute a defense, and (2) appellant's statement was uncontradicted and therefore the evidence is insufficient to support either conviction.

The latter contention,...