FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on June 16, 2005 in the Sacramento County Superior Court on charges of felon in possession of a firearm, unlawfully possessing a concealed firearm, and unlawfully possessing a loaded firearm. He seeks relief on the grounds that: (1) the trial court erred in denying his suppression motion, (2) there was insufficient evidence to support his conviction, (3) his trial counsel rendered ineffective assistance, (4) the arresting officers made false reports, (5) a prior conviction of his is invalid, (6) the trial court erred in refusing to dismiss a prior strike, (7) the trial court failed to award him appropriate presentence conduct credits, and (8) petitioner's sentence violates the Eighth Amendment. Upon careful consideration of the record*fn1 and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
On June 16, 2005, a jury convicted petitioner of being a felon in possession of a firearm in violation of California Penal Code §12021(a)(1), unlawful possession of a concealed firearm in violation of California Penal Code §12025(b)(6), and unlawful possession of a loaded firearm in violation of California Penal Code §12031(a)(2)(F). (CT 218-223; Resp'ts' Lodged Doc. No. 4 at 2.) The jury also found petitioner to have suffered two prior serious felony convictions for violations of California Penal Code §§667(b)-(i), 1170.12, and 1192.7(c) and to have served a prior prison term. (Id.) On August 31, 2005, the trial court sentenced petitioner to state prison for three terms of twenty-five years to life plus one year for the prior prison term enhancement. (CT 252-253; Resp'ts' Lodged Doc. No. 4 at 2.) It stayed the sentences in counts two and three pursuant to California Penal Code §654. (Id.) The superior court awarded petitioner 56 days of presentence conduct credit. (Id.)
Petitioner appealed his judgment of conviction and on December 14, 2006, the California Court of Appeal for the Third Appellate District modified the judgment to award defendant 140 days of presentence conduct credit and affirmed the judgment as modified. (Resp'ts' Lodged Doc. No. 4 at 25.) On March 28, 2007, the California Supreme Court denied petitioner's petition for review. (Resp'ts' Lodged Doc. No. 6).
On February 23, 2006, petitioner filed a habeas petition with the Sacramento County Superior Court (case number 06F01908) claiming: (1) the trial court erred in denying his motion to suppress evidence, (2) the trial court erred in failing to instruct the jury on "corpus delicti" and "mere presence," (3) the prosecutor engaged in misconduct during trial, (4) the trial court erroneously read the allegations of petitioner's prior strike convictions to the jury, (5) there was insufficient evidence admitted to support the conviction, and (6) counsel was ineffective. (Resp'ts' Lodged Doc. Nos. 7 and 8.) On April 26, 2006 the Sacramento County Superior Court dismissed petitioner's first five claims for lack of jurisdiction since "these claims may have been raised in the pending appeal." (Resp'ts' Lodged Doc. No. 8 at 1.) The court rejected petitioner's claims of ineffective assistance of counsel on the merits . (Id. at 2-5.) On May 2, 2006, the Superior Court denied petitioner's motion for reconsideration. (Resp'ts' Lodged Doc. No. 9.)
On May 11, 2006, petitioner filed a habeas petition with the California Court of Appeal for the Third Appellate District (case number CO52598) claiming: (1) the trial court abused its discretion by failing to grant his suppression motion, (2) trial counsel was ineffective by failing to separate the strike findings from trial and failed to object to introduction of evidence of the strikes before petitioner testified at trial, (3) the evidence was insufficient to support the conviction, (4) the trial judge was biased, and (5) his counsel in a prior strike case provided ineffective assistance. (Resp'ts' Lodged Doc. No. 10 at 3.) On May 18, 2006, the Court of Appeal summarily denied the petition. (Resp'ts' Lodged Doc. No. 11.)
On June 12, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court (case number S144202) claiming: (1) the trial court abused its discretion when it denied his suppression motion, (2) counsel was ineffective, (3) the trial court erred in failing to dismiss a prior strike conviction, (4) his sentence was cruel and unusual, (5) the trial court erred in failing to instruct the jury at his trial on "corpus delicti" and "mere presence," (6) the trial prosecutor committed misconduct, and (7) his counsel in a prior strike case was ineffective. (Resp'ts' Lodged Doc. No. 12.) On January 17, 2007, the California Supreme Court summarily denied the petition. (Resp'ts' Lodged Doc. No. 13.)
On January 25, 2007, petitioner filed a federal habeas petition with this court. On May 15, 2007, the Court dismissed the petition, with leave granted to file an amended petition. On June 11, 2007, petitioner filed an amended petition, upon which this action is proceeding. On August 8, 2007, respondents filed an answer. On August 16, 2007 petitioner filed a "Reply Motion" or traverse (hereafter "Reply")*fn2 and on August 17, 2007 filed a "Supplement Response" ("Pet'r's Supp. Resp."). In addition to these filings, the court has considered petitioner's exhibits filed on May 3, 2007 ("Pet'r's Exs.") and a document filed by petitioner on March 24, 2008 entitled "Consideration." See Nov. 5, 2008 Order (Doc. No. 60).
In the early morning hours of November 25, 2004, Sacramento police detained defendant Bernard Wildee and his cousin LeAndrew Smith. The officers observed the two men sitting in a maroon Mustang on G Parkway. The car was parked about a quarter of a mile from where a residential burglary had taken place a few minutes before. Defendant initially gave the officers his Swahili name and denied he was on probation or parole. When questioned further by the police, defendant stated he had a "baby gun" in the car, provided his true name, and admitted he was on parole. The officers found a loaded .38-caliber revolver under the front passenger seat.
The arresting officers also testified at trial that petitioner told them he found the gun, the gun did not belong to Smith, and the gun was under the front passenger seat, where officers then found it. The defense attempted to show that petitioner did not possess the gun. In this regard, petitioner testified he did not know the gun was in the car and never told the arresting officers that he did. (2 RT 991-992.) Smith's girlfriend, the owner of the car, testified that she placed the gun under the seat. (2 RT 1024:23-1025:20.) Petitioner's wife testified he did not own a gun. (2 RT 1060:19-25.) A woman petitioner had sex with earlier that day testified that she did not see him with a gun. (2 RT 1056-1057.) The defense also attempted to show petitioner had reformed from his criminal past and would not have put himself at risk of returning to jail by possessing a gun.
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d), but still defers to the state court's ultimate decision. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
A. Denial of Suppression Motion
Petitioner challenges the trial court's denial of his motion to suppress evidence seized in the search of the maroon Mustang. He alleges his initial detention was unlawful because police lacked an articulable suspicion that he was involved in criminal activity. The state appellate court fairly described the testimony presented at petitioner's suppression hearing as follows:
At 1:16 a.m. on November 25, 2004, Sacramento Police Officers David Eagleton and Clay Quint responded to a call via dispatch that a residential burglary was in progress on Meadowgate Drive. Officers Eagleton and Quint arrived near the burglary scene at approximately 1:30 a.m., and waited briefly for a canine unit to join them.
Officer Eagleton saw three Black males outside the house where the burglary was reported to be taking place. One of the suspects ran eastbound and Officer Quint gave chase. The two Black males closest to Officer Eagleton's patrol car ran north on Meadowgate. Officer Eagleton followed them and apprehended a suspect named Moore. The other suspect got away. Officer Eagleton broadcast a description of the two Black men he was chasing. One suspect was wearing a black sweatshirt or sweater and blue jeans, and the other wore a black sweatshirt and black pants. He said the suspects were running north. A few minutes later, Officer Eagleton saw a silver four-door car speed down Meadowgate with a Black male inside. Officer Eagleton put out a description of the vehicle.
Officers Ryan Bullard and Joseph Bailey heard a dispatch about the foot pursuit of burglary suspects a little after 1:30 a.m., and drove to the scene. They contacted Officer Eagleton on Meadowgate Drive about 1:40 a.m. Officer Eagleton advised Officers Bullard and Bailey that one of the suspects had run southbound on Mandy Drive from Meadowgate wearing a black hooded sweatshirt and jeans.
Officers Bullard and Bailey drove to G Parkway where they "saw a red parked Mustang" on the street. There were two Black males in the car. The man in the front passenger seat was wearing what appeared to be a hooded, black jacket. The Mustang was legally parked with its lights off approximately one-quarter mile from the scene of the burglary. Officer Bullard thought the two men might be involved in the burglary because of the time of night, how the passenger was dressed, and the proximity to the crime scene.
The two officers stopped their patrol car in front of the Mustang and turned on their spotlights. With Officer Bailey providing cover, Officer Bullard approached the driver's side of the Mustang with his firearm drawn but at his side. He told the occupants to show him their hands, and they complied. When asked, the driver identified himself as LeAndrew Smith, gave his date of birth and said he was on probation. Defendant provided no identification, but told Officer Bullard his name was Zuri Askarie, gave his date of birth as August 28, 1974, and said he was not on probation or parole.
When Officer Bullard returned to the patrol car, he identified Smith in his automated system and learned he was on formal, searchable probation. Officer Bullard became suspicious when he was unable to locate anyone named Zuri Askarie in the computer system.
Officer Bullard asked Smith to step out of the Mustang, conducted a probation search, and put him in the back of the patrol car. Bullard asked defendant to step out of the car and conducted a patdown search for weapons. When asked if he had any weapons on him, defendant replied that he had a "baby gun." He told Bullard the gun was under the front passenger seat but it did not belong to him. Officer Bullard conducted a full search of defendant, placed him in handcuffs, and set him on the sidewalk. At that point, defendant admitted his real name was Bernard Wildee and he was on parole. Officer Bailey searched the Mustang and found a handgun that was fully loaded.
Defendant testified at the suppression hearing. He explained he gave Officer Bullard his Swahili name, Zuri Askarie, which he had used since he was 18 years old. Defendant admitted he lied to police about not having identification because he was on parole. However, defendant denied saying he had a "baby gun" in the car.
The court denied defendant's motion to suppress. It found Officers Bullard and Bailey were justified in detaining defendant whom they observed with Smith at 1:30 in the morning, in a car with headlights off, away from any residences, parked on a dead-end street in close proximity to the burglary scene. The court also found there was probable cause to conduct the search once defendant gave the officers false information about his name and indicated there was a "baby gun" in the car.
(Resp'ts' Lodged Doc. No. 4 at 4-7.)
The California Court of Appeal rejected petitioner's argument that the trial court had erred in denying his motion to suppress evidence with the following analysis:
Under our federal and state Constitutions, a detention occurs if, in view of all the surrounding circumstances, a reasonable person would believe he was not free to leave or otherwise disregard a show of police authority. (California v. Hodari D. (1991) 499 U.S. 621, 627-628 [113 L.Ed.2d 690, 697-699]; People v. Souza (1994) 9 Cal.4th 224, 229 (Souza).) "[A] police officer can detain a person when the officer is aware of 'specific and articulable facts' suggesting 'that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he [or she] intends to stop or detain is involved in that activity.' [Citation.]" (People v. Limon (1993) 17 Cal.App.4th 524, 531-532 (Limon).) When viewed alone, the fact a suspect was observed at night or in a high crime area is not enough to justify a detention. However, such facts may establish the required articulable suspicion when considered in combination with one or more other suspicious facts. (Souza, supra, at pp. 240-241.)
The trial court's task on a motion to suppress evidence "is to find historical facts, select the appropriate rule of law, and apply the latter to the former to determine whether the rule so applied was or was not violated . . . . [A]s the reviewing court, [we] must uphold the trial court's findings of fact if they are supported by substantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1036.) We independently review the question whether the detention was reasonable. (Ibid.) . . .
The parties agree defendant was detained within the meaning of the Fourth Amendment when Officer Bullard approached the Mustang with his weapon drawn. The question is whether that detention was justified by an articulable suspicion that defendant had committed a crime. (Florida v. Royer (1983) 460 U.S. 491, 498 [75 L.Ed.2d 229, 236]; Limon, supra, 17 Cal.App.4th at pp. 531-532.)
The record supports the conclusion the detention was lawful. Around 1:40 a.m., Officers Bullard and Bailey responded to a dispatch concerning the foot pursuit of at least two suspects in a residential burglary on Meadowgate Drive. They spoke with Officer Eagleton at the scene. There is disagreement on whether Officer Eagleton told Officers Bullard and Bailey the suspects ran north or south. However, at 1:40 a.m. Officers Bullard and Bailey understood that at least two Black male suspects were still on the run. One of the suspects was wearing a black hooded sweatshirt and jeans. Two or three minutes later, Officers Bullard and Bailey observed Smith and defendant, a Black male wearing a dark jacket, sitting in a car facing out of a dead-end street about a quarter of a mile from where police were investigating the burglary. Given the totality of the circumstances, we conclude Officers Bullard and Bailey acted reasonably and lawfully when they detained and questioned defendant.
(Resp'ts' Lodged Doc. No. 4 at 3-4, 7-8.)
Petitioner claims his conviction is unlawful because it was obtained by the admission into evidence of a firearm and ammunition seized in violation of the Fourth Amendment. (Am. Pet. (Doc. No. 31-1) at 4, 19-23, 68-84; (Doc. No. 31-2) at 67-73, 97-99, 112-115, 129-136; Pet'r's Exs. 1-9, 20-21, 24-25, 30-35; Reply (Doc. No. 39) at 24-27; Pet'r's Supp. Resp. (Doc. No. 41); Consideration (Doc. No 55).*fn4 Specifically, as described above, petitioner alleges that the police lacked legal grounds to detain him when they approached the legally parked Mustang vehicle in which he was a passenger. This claim is not cognizable in this federal habeas corpus petition.
The United States Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). Thus, a Fourth Amendment claim can only be litigated on federal habeas where petitioner demonstrates that the state did not provide an opportunity for full and fair litigation of the claim; it is immaterial whether the petitioner actually litigated the Fourth Amendment claim, whether the state courts correctly disposed of the Fourth Amendment issues tendered to them, or even whether the state courts correctly understood the claim. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); Siripongs v. Calderon, 35 F.3d 1308, 1321 (9th Cir. 1994); Gordan v. Duran, 895 F.2d 610, 613 (9th Cir. 1990).
The record before this court establishes that petitioner had a full and fair hearing in state court on his Fourth Amendment claim. As explained above, petitioner filed a motion to suppress the evidence seized during the search of the Mustang and the trial court held an evidentiary hearing on that motion. (CT 84-96; RT 4-184.) Petitioner also challenged the validity of his detention in his appeal, in his petition for review, and in his state habeas petitions. (Resp'ts' Lodged Doc. Nos. 1 at 17-33; 3 at 2-5; 5 at 7-13; 7 at 3; 10 at 3; 12 at 3.) In addition to the California Court of Appeal's rejection of petitioner's argument on appeal described above, the California Court of Appeal and the California Supreme Court reviewed and rejected petitioner's arguments in his habeas corpus petitions that his rights under the Fourth Amendment were violated by the search.*fn5 (Resp'ts' Lodged Doc. Nos. 11, 13.) Petitioner has not shown that the state failed to provide him a full and fair opportunity to litigate his Fourth Amendment claim.
For the foregoing reasons, this court may not consider petitioner's claim that his Fourth Amendment rights were violated and he is not entitled to federal habeas relief with respect to that claim. Stone v. Powell, 428 U.S. at 494.*fn6
B. Insufficient Evidence of Possession of a Firearm
The jury convicted petitioner of being a felon in possession of a firearm in violation of California Penal Code §12021(a)(1), unlawful possession of a concealed firearm in violation of California Penal Code §12025(b)(6), and unlawful possession of a loaded firearm in violation of California Penal Code §12031(a)(2)(F). Petitioner claims the evidence introduced at his trial was insufficient to support his conviction for possession of a firearm. (Am. Pet. (Doc. No. 31-1) at 4, 27-28.) He argues that the evidence introduced at his trial showed he did not own a gun and that the gun found by officers was placed there, without his knowledge, by the owner of the car. (Id.)
Petitioner did not raise this claim on appeal. However, respondents also argue that petitioner failed to raise this claim in his state habeas corpus petitions and that it is therefore unexhausted. Respondents' argument is unpersuasive. Petitioner did raise this insufficiency of the evidence claim in each of his state habeas petitions, including the petition he filed with the California Supreme Court. (Resp'ts' Lodged Doc. Nos. 7 at 3, 10 at 3, and 12 at 17-18.) The Sacramento County Superior Court dismissed petitioner's insufficiency of the evidence claim for lack of jurisdiction, stating as follows: "During the pendency of an appeal, a trial court is without authority to proceed on a habeas corpus proceeding for any error which was or might have been legally presented to the appellate court." (Resp'ts' Lodged Doc. No. 8 at 1.) The California Court of Appeal and California Supreme Court denied petitioner's habeas petitions without opinion. (Resp'ts' Lodged Doc. Nos. 11 and 13.) Typically, this court would analyze the Superior Court's decision as the relevant state court determination because it would be the "last reasoned decision" by a state court. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002) (the habeas court must review the "last reasoned decision" by a state court); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). However, since petitioner's appeal had concluded by the time the California Supreme Court denied his state habeas petition, the Superior Court's reasoning was not necessarily still applicable. As discussed above, for purposes of reviewing the state court's decision under 28 U.S.C. § 2254(d), if this court considers the Superior Court's procedural ruling on petitioner's claim, then the deferential standard of review set out in section 2254(d) does not apply and this court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). However, if this court considers the California Supreme Court's summary denial of petitioner's claim, then it must independently review the record to determine whether habeas corpus relief is available under section 2254(d), but still defer to the state court's ultimate decision. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Under either standard of review, this court finds petitioner's claim of insufficiency of the evidence should nonetheless be rejected.
The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant the writ, the federal habeas court must find that the decision of the state court reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. Id. at 1275 & n.13.
The court must review the entire record when the sufficiency of the evidence is challenged in habeas proceedings. Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev'd, 483 U.S. 1 (1987). It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. If the trier of fact could draw conflicting inferences from the evidence, the court in its review will assign the inference that favors conviction. McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994). The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict. United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). Thus, "[t]he question is not whether we are personally convinced beyond a reasonable doubt" but rather "whether rational jurors could reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991). The federal habeas court determines sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein, 373 F.3d at 983.
Viewing the evidence in the light most favorable to the verdict, this court concludes that there was sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that petitioner was guilty of possession of a firearm. Each of the charges upon which petitioner was convicted required proof of possession of a firearm. First, California Penal Code §12021(a)(1) states: "Any person who has been convicted of a felony . . . who owns, or has in his or her possession or under his or her custody or control, any firearm is guilty of a felony." Second, § 12025 states in relevant part:
(a) A person is guilty of carrying a concealed firearm when he or she does any of the following: . . . .
(3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable ...