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Garber v. Superior Court of Los Angeles County

May 13, 2010

ROBERT GARBER, PETITIONER,
v.
SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST.



ORIGINAL PROCEEDINGS in mandate. Patti Jo McKay, Judge. Petition denied. (Los Angeles County Super. Ct. No. BR045632).

The opinion of the court was delivered by: Klein, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Petitioner Robert Garber has filed a habeas corpus petition challenging a decision by the Appellate Division of the Superior Court that affirmed his conviction, after a jury trial, for carrying a concealed firearm in a vehicle and carrying a loaded firearm in a public place or on a public street (Pen. Code, §§ 12025, 12031).*fn2 Garber was put on probation for five years.

We conclude the only relief Garber is entitled to is to have his sentence modified.

FACTUAL BACKGROUND

1. Prosecution Evidence

Between 6:30 and 6:45 p.m. on November 6, 2006, off-duty firefighter Cliff Sorensen drove his Jeep Wrangler to Hjelte Park, a public park in Los Angeles, for a softball game with friends and colleagues. Hjelte Park is equipped for sports and other daily activities; it has no campsites or overnight stalls with hookups for recreational vehicles or trailers. The park opens at 5:00 a.m. and closes at 10:30 p.m., when the gates surrounding the park are locked. Under the Los Angeles Municipal Code, overnight camping is prohibited and it is unlawful to remain in the park after closing.

Sorensen's softball game was scheduled to begin at 7:30 p.m. The field lights had not yet been turned on, so he drove his Jeep into a dirt parking area. Not seeing anyone in the near vicinity, Sorensen began "driving around, playing in the dirt." Sorensen did see petitioner Garber's van and trailer parked about 150 to 200 feet away across the dirt parking area. Sorensen drove around, kicking up dust, for 30 or 45 seconds. Then he parked his Jeep in one of the paved parking spaces.

Sorensen was still sitting there when he noticed Garber walking toward him. Realizing the wind must have blown some of the dust toward Garber's trailer, Sorensen put his hand up apologetically and said he was sorry. Garber didn't say anything and just kept walking toward Sorensen, who said: "My bad. I'm sorry. I didn't see you. I didn't mean to dust you. I apologize." When Garber got closer to the Jeep, Sorensen could see he had gun. It was a black semiautomatic handgun and Garber was holding it down at his side, pointed toward the ground. Garber was now less than 20 feet from the Jeep. Sorensen testified he felt threatened: "By the way he's coming at me, I know I may have pissed him off. And he's basically bringing a gun to a conversation." Garber kept walking toward Sorensen "in an angry manner" with the gun at his side. Sorensen began to drive away slowly. As he did so, he leaned out of his Jeep and yelled, "You're an idiot. Why the heck did you pull a gun on me? You're an idiot." Garber did not say anything. Sorensen drove off.

When Sorensen returned to the park a short time later, his teammates had started to arrive for the softball game. Noticing Garber's trailer was still there, Sorensen turned off his headlights and his engine, and rolled quietly into a parking space to avoid any further confrontation. As he got out of the Jeep, he was approached by Joseph Chervansky who yelled at him about kicking up dust. Garber was following behind Chervansky. Sorensen said, "I apologize again, but your buddy pulled a gun." Sorensen's teammates got in between Sorensen and Chervansky. When one of the umpires heard about the gun, he said, "Well, I'm not going to work a game where there's a gun . . . . I've had that problem before. We need to call the cops." Somebody called the police, who arrived 10 minutes later. By that time, Garber and Chervansky had walked away from Sorensen's Jeep.

Javier Barragan and Sean Hennessy were the officers who responded to the call. They worked for the Los Angeles General Services Police Department, which patrols municipal sites like parks and libraries. Sorensen told them about Garber's gun and indicated Garber had returned to his trailer. The officers went over to the trailer and ordered Garber to come out. Garber was upset as he left his trailer and he screamed at the officers. Told he was being detained on suspicion of brandishing a firearm, Garber said, "I have a gun in the trailer. It is in a drawer." Officer Hennessy entered the trailer. He found a semiautomatic .380-caliber handgun in a drawer next to the sink area. The barrel was about four inches long and the gun was concealable. There was one bullet in the chamber and five in the magazine. Hennessy testified he could see that Garber's van and trailer were connected. Barragan testified, "Both vehicles were attached through a trailer hitch."

2. Defense Evidence

Joseph Chervansky testified he was acquainted with Garber because they both walked their dogs at Hjelte Park. On the night of the incident, Chervansky parked his car in the dirt parking area, about 20 feet behind Garber's trailer. Sorensen drove up at an excessive speed, about 50 miles per hour, and then did six or seven "circles, or what they call donuts," creating a dust storm. Sorensen came within 10 feet of Garber's trailer. Chervansky sounded his horn because he thought Sorensen was either going to crash into his car or into Garber's trailer. When the dust cleared, he saw Garber standing in the doorway of his trailer. Chervansky did not see Garber holding a gun and he did not see Garber step outside the trailer.

Sorensen left the park and came back 15 minutes later. Chervansky told Garber the Jeep had returned. Chervansky walked over to the Jeep in order to write down its license number. Garber was following behind him. As Chervansky was writing down the license number, Sorensen said, "You don't know who you're messing with. I'm L.A.P.D." Sorensen did not apologize for stirring up the dust; instead, he laughed at Garber. Garber was calm; he was not shouting. Chervansky denied yelling at Sorensen. After getting the Jeep's license number, Chervansky returned to his own car.

Frank Castillo testified he was working as security that night, guarding some film trucks parked in the dirt area at Hjelte Park. He saw Garber's trailer and van parked in the dirt area. A Jeep drove up at 45 or 50 miles per hour, coming within five or ten feet of Garber's trailer. The Jeep spun around and started "doing all kinds of crazy stuff, picking up all kinds of dirt . . . ." Castillo testified: "[T]here was kids playing, there was people walking around. I was scared for them, and I was scared for my trucks." He heard Garber shouting at Sorensen about the dust. Then Sorensen sped away while yelling, "Call the cops. Call the cops," as if daring Garber to call them. Castillo never saw Garber with a gun.

Garber testified he went to Hjelte Park at 5:00 p.m. that day to walk his dog. This was something he often did. At the time of his encounter with Sorensen, Garber's van and trailer were located in the public parking lot. He was waiting inside his trailer for the park lights to come on so he could walk his dog safely.

Garber described the trailer as his home: "It has a range, refrigerator. It has . . . furniture. It has a shower, a toilet. It has . . . closets and drawers, a dinette. And it's where I live." He called it a "trailer coach, a travel trailer."

Garber testified Sorensen drove into the parking area at 50 or 60 miles per hour, creating dust clouds. Garber was startled and feared the Jeep was going to hit his trailer. "I couldn't move the trailer, because I had first to go to the van, hook the trailer, and then drive away. That is very, very difficult, and it's impossible to do in fraction of second.*fn3 [¶] Then, the first thought, it was to get the gun. I didn't know that person, but I know that in public park there are psychopath, there are gang member, there are all kind of criminal, the sick, the refuse of the park, because they cannot go anywhere else." "Now, that gun that I have, it for self-defense. I got the gun and I stood on the doorway on my trailer, holding it alongside my body. And I'm . . . holding my gun alongside my left side. I really didn't know what to do. If I were a police officer, I would shoot him - . . . [¶] . . . [¶] - 1500 time."

Garber heard Chervansky honking his horn and he saw the Jeep do five or six donuts. Then Sorensen drove off. Garber claimed that during this initial encounter with Sorensen he did not leave the doorway of his trailer.

After the park lights came on, Chervansky knocked on Garber's trailer to say the Jeep had returned. Garber approached Sorensen and said, "Sir, are you on drug? Why did you do this?" Sorensen ignored him, turned to another softball player and said, "He had a gun before." Chervansky took down Sorensen's license plate number. Garber told Sorensen, "I am done with this. Please don't approach my vehicles no more." Garber and Chervansky turned to go, but Sorensen approached Chervansky, "went up to him, on his face like this, and told him, . . . 'You don't know who you're messing with. I'm L.A.P.D. officer.' "

Garber returned to his trailer. Ten minutes later, police officers arrived and ordered him to come out. They asked if he had a gun and he told them it was in the trailer. Garber testified he never heard Chervansky yelling during the incident and that Sorensen never apologized.

PROCEDURAL BACKGROUND

Garber was charged with three misdemeanors: brandishing a firearm (§ 417, subd. (a)(2)); carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1); and, carrying a loaded firearm in a public place (§ 12031, subd. (a)). He represented himself at trial. The jury acquitted him of brandishing, and convicted him on the other two counts. On October 21. 2008, the Appellate Division of the Los Angeles Superior Court affirmed his convictions.

On November 25, 2008, Garber's application to transfer the case to this court was denied because he had failed to submit an adequate record or state facts supporting the relief he requested. On December 12, 2008, the Supreme Court struck Garber's petition for review because the decision to deny transfer of a case within the appellate jurisdiction of the superior court is not reviewable.

On December 16, 2008, Garber filed in this court a pro se document entitled "Request for Rehearing or Writ of Mandate." We appointed counsel to represent him and subsequently issued an order to show cause which deemed Garber's pro se filing a petition for writ of habeas corpus.

CONTENTIONS

1. The trial court erred by not instructing the jury on the "place of residence" exemptions to sections 12025 and 12031.

2. If Garber was not entitled to the "place of residence" jury instructions, his convictions violated the Second Amendment.

3. The trial court erred by not instructing the jury on self-defense.

4. The trial court erred by imposing a five-year probationary term.

DISCUSSION

1. Trial court did not err by refusing to give "place of residence" jury instructions

Garber contends the jury should have been instructed on the statutory exemptions to sections 12025 and 12031, which permit the possession of loaded and concealed firearms in "places of residence," because he lived in his trailer. This claim is meritless.

a. The Statutory Scheme

"The general purpose of The Dangerous Weapons' Control Law (ยง 12000 et seq.) is to control the threat to public safety in the indiscriminate possession and carrying about of concealed and loaded ...


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