(Alameda County Super. Ct. No. C155908). Honorable Leopoldo E. Dorado.
The opinion of the court was delivered by: Swager, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant was convicted following a jury trial of carrying a concealed firearm (Pen. Code, § 12025, subd. (a)(2)), and carrying a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(1)).*fn2 He was sentenced to the middle term of two years in state prison for the conviction of carrying a loaded firearm in a public place, and sentence on the remaining conviction was stayed.
In this appeal defendant claims that his conviction of possession of a concealed weapon violates the Second Amendment to the United States Constitution, and the trial court gave erroneous instructions in response to jury questions on the charge of carrying a loaded firearm in a public place. He also challenges the trial court's sentencing decision to deny probation and impose a state prison term. We conclude that the conviction of possession of a concealed weapon does not contravene defendant's Second Amendment rights as interpreted in the United States Supreme Court's decision in District of Columbia v. Heller (2008) ___ U.S. ___ [171 L.Ed.2d 637, 128 S.Ct. 2783] (Heller), and the court properly instructed the jury on carrying a loaded firearm in a public place. We also find that no prejudicial sentencing error occurred. We therefore affirm the judgment.
On the evening of June 6, 2007, officers Kevin Murphy and Michael Leite of the Oakland Police Department's Crime Reduction Team were on patrol in a "semi-marked police vehicle" in the 1400 block of 57th Avenue in East Oakland, an area notorious as an "open air drug market." The officers approached a group of "five Black males" ranging in age from 17 to "mid 20's" clustered near the "sidewalk area" at the rear of a 1980's vintage brown Toyota Corolla parked in the driveway at 1423--57th Avenue. Some of them were holding open bottles of alcohol, and one was in possession of a clear plastic baggie. The vehicle was abandoned and had no license plates; the residence appeared to be unoccupied and had a "for sale sign" on the front lawn.
After observing the "subjects drinking in public," the officers decided to contact the group to "further investigate." Officer Murphy parked the police vehicle in the street facing into the driveway directly behind the Toyota. As he did so, all of the individuals who had been congregating around the Toyota put their alcohol containers down and began to scatter in different directions. The two officers focused on different individuals in the group.
Officer Leite observed defendant walk from the right front corner of the Toyota to the right rear of the vehicle. Defendant then turned toward the vehicle, leaned down, and pulled a black revolver from the waist pocket of his black, hooded sweatshirt. He opened his hand and tossed the revolver under the abandoned Toyota in front of the right rear tire. As defendant began to "walk away," officer Leite arrested and handcuffed him. From under the car officer Leite recovered the gun, which he identified as a Smith and Wesson .38-caliber Special. He opened the cylinder of the revolver and discovered five live rounds inside.
Meanwhile, officer Murphy noticed another individual in the group, Antonio Poole, make "a very quick movement" away from the Toyota toward a staircase as he closed a clear plastic baggie the officer suspected to contain marijuana. Poole threw the baggie over the staircase and onto the lawn. Officer Murphy detained and handcuffed Poole. William Shaw, who was also in the group, was arrested on an "outstanding warrant." They were later transported to North County Jail.
The other two young men in the group, Tyree Ewing and Chad Frazier, were detained but not arrested. Aaron Frazier, a relative of both Chad Frazier and William Shaw, approached from a "rear apartment complex" and spoke to some of the individuals in the group after they were detained and handcuffed.*fn3 Frazier was agitated and complained to the officers that "his family and friends were the subjects" who had been detained. He specifically expressed to the officers that defendant "didn't have a gun." Frazier also informed the officers that "he was on parole" and "possibly had a warrant for his arrest." After the officers confirmed through a "records check" that Frazier was "a parolee at large with a warrant for his arrest," he too was "taken into custody and transported to jail." At the jail, Frazier reiterated to the officer that defendant "didn't have no gun."
Frazier testified that he was in a parked car at the scene in front of 1423--57th Avenue, and observed the group of five who had converged around the abandoned Toyota, drinking alcohol. He "didn't see" defendant in possession of a gun. Frazier knew his cousin William Shaw "had the gun" in his back pocket before the police arrived. He then heard the sound of "metal hitting the ground" when the officers pulled their car onto the sidewalk. Frazier testified that Shaw must have been the one who "tossed" the gun under the car after the "police pulled up." He was convinced that defendant "didn't have a gun."
Defendant testified in his defense that at about 8:30 p.m. on June 6, 2007, he arranged with his "weed person," John, to meet at 1423--57th Avenue to purchase marijuana. Defendant was aware that his friends bought marijuana "in front of that house," although he did not know the people who lived at the residence and had never been there to purchase drugs before. For about 10 minutes before the police arrived, he was "just talking, drinking," and "mingling" around the Toyota with his friends who had congregated there. Defendant was standing on the left side of the car near the base of a stairwell when he noticed the police officers pull into the driveway and park at a slant. As the officers got out of their vehicle, everyone started to move around. Defendant heard the sound of "metal hitting the ground." He placed his bottle on the top of the Toyota and walked toward the church on the corner, but an officer told everyone "to come back" and stand on the left side of the car. Officer Leite picked up the gun and handcuffed defendant. The officer then told defendant he was "going to jail" for possession of the gun, despite defendant's protest that the gun did not belong to him. Defendant denied that he possessed the gun "at any time" during the incident. He claimed that the gun belonged to Shaw. Defendant testified that he observed Shaw in possession of the same gun a few days before.
I. The Conviction of Possession of a Concealed Weapon
Defendant claims that in light of the recent United States Supreme Court's decision in Heller, supra, 171 L.Ed.2d 637, his conviction of possession of a concealed weapon on "private property" "violate[s] the protections under the Second Amendment to the United States Constitution." His position is that as applied to his possession of a concealed weapon "on a private driveway," Penal Code section 12025, subdivision (a)(2) must be found constitutionally "overbroad," as it "cannot be reconciled with the protection afforded by the Second ...