IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FREDERICK RALPH CROSS, DEFENDANT AND APPELLANT.
Super. Ct. No. 07F04259
The opinion of the court was delivered by: Cantil-sakauye,j.
P. v. Cross CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Frederick Ralph Cross of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1))*fn1 and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364), while sustaining a strike allegation. The court sentenced defendant to four years in prison.
On appeal, defendant contends his conviction for possessing a firearm in his own home violates his Second Amendment right to bear arms; the court deprived him of due process by failing to give an accomplice instruction; and there are various errors in the abstract. We shall order corrections to the abstract and affirm.*fn2
In April 2007, the Sacramento County Sheriff's Office executed a search warrant on a house inhabited by 13-year-old F.S., his mother C.S., and defendant.
Defendant had been F.S.'s mother's boyfriend on and off for F.S.'s entire life. F.S. did not like defendant because he would hit the boy and his mother. Defendant would use drugs at the house, a white powder smoked in a glass pipe, and would get "all mean" after using them.
F.S. once saw a canister of Brut shaving cream on top of the bathroom sink in defendant's room. He took off the bottom of the canister and found a white substance in a baggie, along with needles and a pipe. He hid the items in the backyard bushes to keep defendant and his mother from using drugs.
Executing the warrant, Sacramento County Sheriff's Sergeant Randall Winn knocked and announced his presence without a response. Sergeant Winn entered through the front door and saw defendant run to the left side of his vision. He continued in and saw defendant run from the family room towards the kitchen, which was connected to the garage. After defendant returned to the kitchen from the garage about six to seven seconds later, Sergeant Winn detained him.
A search of the garage found two tool boxes, one in defendant's name and another in the name of B. Kovac, the person from whom defendant sublet the house. A boat was also in the garage. A loaded .22-caliber semiautomatic gun was found on the floorboard below the boat's steering wheel, and a glass pipe used to smoke drugs was found on the front seat.
A search of the master bedroom found hypodermic syringes and a glass pipe in a dresser. A zippered pouch containing additional syringes and a metal spoon with a chunky white substance were found in the master bathroom. Other syringes were found in a bathroom drawer and the bathroom trash can, and a zippered handgun case was found on the bedroom floor.
F.S. had seen defendant handle the gun. The day before the raid, defendant handed the gun to the boy and told him to "shoot anybody if they came in." F.S. told a deputy where he buried the Brut can, which was found where he directed.
Defendant testified that he never showed F.S. the gun or used drugs in his presence. F.S. was "out of control" and fought frequently with his mother, C.S. The gun in the boat belonged to C.S.; defendant told her to get rid of it because he could not be around firearms as a felon. The drug paraphernalia belonged to C.S. or other people who used drugs in the house.
Defendant ran from the sheriffs because he was afraid they would get "physical." He denied going into the garage when they arrived.
The Second Amendment
Defendant contends his conviction for being a felon in possession of a firearm for having a firearm in his home violated his Second Amendment right to bear arms. We are not persuaded.
Defendant's argument relies on the United States Supreme Court's decision in District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637], which struck down a District of Columbia law banning handguns and requiring any firearms in the home be kept nonfunctional, even for self-defense. (554 U.S. at pp. [171 L.Ed.2d at pp. 647-648, 683-684].) However, the Court in Heller also stated "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons" or on other traditional restrictions on the right to bear arms. (Heller, supra, at p. __ [171 L.Ed.2d at p. 678].) A California decision has rejected a claim, similar to defendant's, based on this passage of Heller. (People v. Flores (2008) 169 Cal.App.4th 568, 574; see also People v. Yarbrough (2008) 169 Cal.App.4th 303, 311-314 [Heller does not bar prosecution for carrying concealed weapon].)
Defendant attempts to distinguish this contrary precedent by asserting none of these decisions addressed a law prohibiting a felon from possessing a firearm in his or her home. Defendant's argument is unavailing. A felon does not stop being dangerous when he or she is at home. A felon can commit numerous crimes in his or her own home, such as murder or domestic violence, and has already demonstrated an inability to conform to the law. The Heller decision, which struck down a law infringing upon the possession of firearms in the home, nonetheless recognized the continued validity of prohibitions against felons possessing firearms. The Legislature can forbid a felon from possessing a firearm anywhere, even in the felon's own home, without violating the Second Amendment.
An Accomplice Instruction was Unnecessary
F.S. testified that he took the Brut can containing drug paraphernalia and buried it in bushes in the back yard. Defendant claims this testimony required the court to give an accomplice instruction informing the jury that the testimony of F.S., an accomplice to the misdemeanor charge of possessing drug paraphernalia, must be viewed with suspicion. This claim is meritless.
There is no evidence F.S. was an accomplice*fn3 to the crime of possessing paraphernalia; thus, the court was not required to give an accomplice instruction. While F.S. briefly possessed some of the drug paraphernalia in the Brut can, it was only to hide the paraphernalia so that it could not be used by his mother or defendant. One who possesses contraband for a brief moment for the sole purpose of disposing of it cannot be convicted of illegal possession. (People v. Mijares (1971) 6 Cal.3d 415, 420-421, 423.)
Errors in the Abstract
Defendant identifies several errors in the abstract.
The abstract incorrectly states the court imposed a two-year sentence for felon in possession of a firearm (count one) to run concurrently with the six-month jail term for possession of paraphernalia in count three. Instead, the court imposed a six-month jail term for possession of paraphernalia in count three, to run concurrently with the two-year term in count one.
The abstract also erroneously reflects a two-year enhancement for a "prior conviction" pursuant to "PC667(b)-(1)" instead of showing that his two-year term for being a felon in possession was doubled pursuant to sections 667, subdivisions (b) through (i) or 1170.12.
Finally, box eight of the abstract shows a sentence of four years six months instead of defendant's actual sentence of four years in prison.
We shall direct that the abstract of judgment be corrected to conform to the court's oral pronouncement of judgment. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385 [where discrepancy exists between oral pronouncement of judgment and abstract of judgment, oral pronouncement controls].)
The judgment is affirmed. The court is directed to amend the abstract of judgment in accordance with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: HULL, Acting P.J. SCOTLAND, J.*fn4