Super.Ct.No. RIF145580 APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed as modified.
The opinion of the court was delivered by: Richli J.
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A jury found defendant Michael Zane Zarif guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a))*fn1 (count 3) and possession of ammunition by a felon (§ 12316, subd. (b)) (count 4).*fn2 In a bifurcated proceeding, the trial court found true that defendant had suffered two prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and one prior serious and violent felony conviction (§ 667, subds. (c)-(i)). As a result, defendant was sentenced to a total term of eight years in state prison as follows: the upper term of three years on count 3 (doubled to six years pursuant to the prior strike allegation), plus consecutive one-year terms for each of the two prior prison term allegations; imposition of a four-year middle term on count 4 was stayed; the court also stayed a five-year term for the prior serious felony conviction (§ 667, subd. (a)).
On appeal, defendant contends: (1) the trial court erred by failing to sua sponte instruct the jury with the defense of transitory possession as embodied in CALJIC No. 12.50 in regard to the charges of felon in possession of a firearm and felon in possession of ammunition; and (2) the trial court erred by refusing to give defendant's proffered instruction on the victim's prior threats against defendant and the reasonableness of defendant's conduct in light of these threats. We reject this contention and affirm the judgment as modified.*fn3
Around 5:30 a.m. on August 5, 2008, Tyrone Butler, his girlfriend, and his girlfriend's two-year-old child were evicted from their residence. Around 11:00 that morning, while pushing the baby in a shopping cart, Butler and his girlfriend saw defendant and another individual driving a blue Saturn automobile in downtown Riverside. Butler had known defendant for several years and made arrangements with defendant for him and his girlfriend to stay the night at defendant's apartment in exchange for $30.
Around 10:30 p.m. that night, another individual, whom Butler only knew as "Sic," arrived at the apartment to see defendant. Sic was the individual who had been with defendant earlier, in the blue Saturn. Butler told defendant and Sic he had a fake gun that he carried in his backpack for protection.*fn4 Butler showed defendant and Sic the gun. They initially thought the gun was real, but Butler told them it was a fake and showed them by taking out the clip. Defendant and Sic saw that the clip was not for a real gun. They asked Butler if they could use the gun to commit a robbery. They already had one gun, which Butler believed belonged to Sic, but desired a second gun. When Butler refused to allow defendant and Sic to use his fake gun, defendant became angry. Defendant and Sic then left the apartment and were gone for "three, four hours."
About 2:30 or 3:00 a.m. the next morning, defendant and Sic returned to the apartment. Butler's girlfriend had been sleeping in defendant's bedroom (the rented bedroom) when she was awakened by yelling. She complained to Butler that she had not paid for all the commotion. Defendant was irate because he saw "red stuff on his shirt in his room," believing it was menstrual blood. Defendant believed that Butler may have been "messing with [defendant's] woman," who was also at the house.
Butler's girlfriend packed her belongings and started to leave. Butler tried to convince his girlfriend to stay because he had paid for the night and he "didn't get what [they] were due." Butler and his girlfriend went downstairs and got into defendant's girlfriend's car; defendant's girlfriend was to drive them to Rubidoux. When Butler and his girlfriend saw that defendant and Sic were trying to hide a gun under the dashboard of defendant's girlfriend's car, Butler and his girlfriend got out of the car and went back upstairs to defendant's bedroom. Butler's girlfriend told Butler to resolve the misunderstanding, that defendant thought Butler had been "messing with his girl," "because this is not what [they] paid for." Butler grabbed his fake gun, placed it in his waistband, and went downstairs to talk to defendant.
When Butler found defendant by the pool area of the apartment complex, he saw that defendant and Sic were "whispering . . . like, they were plotting to do something crazy." Butler walked up to defendant and told him that he wanted to speak with him, but defendant and Sic ignored him. Butler told defendant that he did not like what had been going on, with defendant coming back to the apartment yelling and waking up Butler's girlfriend, who got upset at Butler. Defendant began "creeping a little bit towards [Butler]." Butler responded, "Don't walk up on me like that." Defendant and Butler began to argue. When defendant continued to "creep up" on Butler, Butler took out the Airsoft gun from his waistband and told defendant not to "walk up on" him. Butler did not point the gun at defendant but he yelled at defendant and cocked the gun. Sic told Butler to hold on and that he did not have to do that. Butler replied that he was not going to shoot defendant, but he was going to "pistol-whip" him. Butler told defendant that he did not want any more problems and that his girlfriend should be allowed to get her "beauty rest" without being disturbed, since they paid for the room, or else he would be coming back to defendant.
Butler thereafter left and went upstairs. His girlfriend was sitting on the bed and told him that she could not find her food stamp card. Butler told his girlfriend that he would look for the card in defendant's girlfriend's car. When Butler went downstairs, he found defendant and Sic standing in front of defendant's girlfriend's vehicle. Butler had the fake gun in his waistband but did not take it out. Defendant and Sic asked Butler, "[W]hat's wrong?" Butler told them that his girlfriend could not find her food stamp card and that he was going to look in defendant's girlfriend's car. When Butler said, "I bet it's in there," defendant responded, "Don't you trust me[?]" Defendant appeared offended that Butler was going to search the car and that Butler was accusing defendant of taking the food stamp card.
As Butler walked towards the car, defendant pointed Sic's gun at Butler and said, "Don't ever point a pistol at me again." Butler replied, "I didn't point it at you. I threatened to pistol-whip you." At some point, Butler's girlfriend came downstairs and stood in front of Butler. Butler moved her aside and told defendant to "[g]o ahead" and shoot, "trying to call his ...