IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KENNARD ISAIAH LOVE, DEFENDANT AND APPELLANT.
(Santa Clara County Super. Ct. No. CC788784)
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
P. v. Love
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Kennard Isaiah Love was convicted after jury trial of four counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)),*fn1 four counts of assault with a firearm (§ 245, subd. (a)(2)), two counts of making criminal threats (§ 422), and two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury further found true allegations that defendant personally used a handgun during the commission of the robbery, assault, and criminal threats offenses. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) The trial court sentenced him to 28 years in prison.
On appeal defendant contends that the trial court abused its discretion and denied him his constitutional rights to present a defense, due process, and a fair trial when it denied his request to show an imitation firearm to complaining witnesses and to present expert testimony on imitation firearms. Defendant also contends that the court erred when it imposed punishment on both counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)). We agree with defendant's sentencing contention, but find no other error or abuse of discretion. Therefore, we will order the judgment modified by staying the punishment imposed on one firearm possession count, and affirm the judgment as so modified.
Defendant was charged by third amended information with six counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 1, 4, 7, 11, 13, & 15), two counts of attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); counts 17 & 18), three counts of possession of a firearm by a felon (§ 12021, subd. (a)(1); counts 2, 3, & 10), five counts of assault with a firearm (§ 245, subd. (a)(2); counts 5, 8, 12, 14, & 16), and two counts of making criminal threats (§ 422; counts 6 & 9). The information further alleged that defendant personally used a handgun during the commission of the offenses in counts 1, 4 through 9, and 11 through 16. (§§ 12022.53, subd. (b), 12022.5, subd. (a).)*fn2
As part of his motions in limine, defendant requested that the court allow him to bring an imitation firearm into court to use during the cross-examination of witnesses. Defendant separately moved for leave to call a firearms expert to testify that there is a possibility that the weapon used in the incidents was a replica gun. The court denied defendant's request to show each witness an imitation or replica firearm. However, it deferred its ruling on allowing expert testimony. Defendant then filed a written request for a hearing pursuant to Evidence Code section 402 in order to show the complaining witnesses the imitation firearm outside the presence of the jury. The court denied the request.
The Trial Evidence*fn3
Counts 3 - 9
On December 1, 2007, Hugo Rodriguez found on Craig's List a Nissan pickup truck he was interested in buying. The listing included a phone number, 408-317-5404, which Rodriguez called. A man said he had the pickup, so Rodriguez arranged to meet the man at an address on Temple Drive in Milpitas. Rodriguez drove to Milpitas with his wife, his three-month-old daughter, and his brother around 7:00 p.m. When Rodriguez could not find the address given him, he called the number again. The man told Rodriguez that he would go out into the street and wait for him. When Rodriguez approached a man in the street, who he identified at trial as defendant, he was directed to drive into an apartment complex.
Rodriguez drove into the complex and asked where the pickup was. Defendant said that his aunt took it to the grocery store. Rodriguez tried to back his car out of the complex but his car died. Defendant quickly approached Rodriguez's car, so Rodriguez began to get out of the car in order to try to talk to defendant. Defendant was wearing a hooded sweater and black gloves. He took a black semi-automatic gun out from under his shirt and put it against Rodriguez's abdomen, forcing Rodriguez back into his car. When Rodriguez sat back down, defendant put the gun to Rodriguez's neck. Defendant said, "give me your money or I'm gonna kill you." Rodriguez was afraid for his family. His brother told defendant that they did not have the money. Defendant then slid the top portion of the gun back as if he was getting ready to shoot it. The gun felt, looked, and sounded to Rodriguez like it was metal, not plastic. He did not see an orange tip at the barrel of the gun. He was sure that it was a real gun. Defendant aimed the gun at Rodriguez's brother and told him that he was going to kill him. Rodriguez said that they did not have the money, but his brother offered defendant the money if defendant would not do them any harm. Rodriguez told his brother to give defendant his money or defendant would kill them. Defendant said "what did you say," and he hit Rodriguez in the corner of his right eyebrow with the butt end of the gun. The resulting injury hurt a lot and bled.
Rodriguez's wife starting crying. His brother told defendant to take the money and leave. Defendant also asked for and took defendant's and his brother's cell phones and wallets and defendant's car keys. Rodriguez lost $3,800 and his brother lost $800. Defendant then told them not to move or he would kill them. Defendant ran towards the apartments and disappeared. After he left, Rodriguez asked a woman for help and called 911. A recording of the 7:23 p.m. 911 call was played for the jury. In the call, Rodriguez described the robber as a Black man, about 30 years old, wearing blue jeans and a white sweater with blue writing, and using a black handgun. When the police arrived, Rodriguez told them everything.
No shell casings or bullets were found during a search of Rodriguez's car and the area around it.
Counts 10 - 14
Isidiro Lopez also found a pickup truck on Craig's List on December 1, 2007, that he was interested in buying. He called the phone number listed, 408-317-5404, and agreed to meet a man at some apartments on Rinconada in San Jose. He drove to the address with his friend Freddie Perez, and arrived around 6:30 p.m. The man was not at the address so Lopez called him again. The man said he was with a friend buying food and he told Lopez to wait for him at a corner store. Lopez drove to the store and waited. A man wearing a hooded sweatshirt, who Lopez identified at trial as defendant, approached the car and asked Lopez if he was the person interested in the vehicle. Lopez said that he was.
Defendant opened the car's back door and got in. He took out a black semi-automatic handgun, said go, and waived them into the apartment complex. Defendant put the gun against Lopez's head and told him to give him the money. Lopez said that he did not have any money. Defendant slid the rack back on the gun and said, "give me the money or I'll shoot." Lopez turned around and gave defendant his money. Lopez then saw that defendant was wearing gloves, and that the gun looked like the one police officers use. It did not have an orange tip. Defendant asked Perez for his wallet and both their cell phones and the car keys. Perez said no. The man hit both Perez and Lopez in the head with the butt of his gun. Lopez testified that, judging by the weight of the gun, it was not an imitation, and it had not sounded like a BB gun when defendant slid the rack back. Both Perez and Lopez sustained injuries as a result of being struck by the gun. Defendant got out of the car, opened the passenger side door, and pointed the gun at Perez. Perez gave defendant what he asked for. The man kicked Perez in the leg once then ran out to the street. Lopez lost his cell phone and car keys, and Perez lost his wallet and money.
Lopez borrowed a cell phone and he and Perez called 911. A recording of their 7:49 p.m. 911 call was played for the jury. During the call, Perez provided a description of the person who robbed them. He said that it was a Black man, who was about 24 years old and who was wearing a dark jacket. Lopez told responding officers that the robber was wearing a light-colored hooded sweatshirt and black gloves and had a black gun. An officer found $3,000 of Lopez's money on the floorboard in the back seat of his car where defendant had dropped it.
Lopez identified a person other than defendant as the robber during a photographic lineup just before Lopez testified at the preliminary examination. However, when Lopez testified at the preliminary examination, he identified defendant as the robber.
Milpitas Police Sergeant Raj Maharaj contacted Sprint and had the cell phone listed in the Craig's List ad tracked beginning around 4:00 p.m. on December 5, 2007. When Sprint reported that the phone moved from San Jose to Lone Tree Court in Milpitas, which is a residential cul-de-sac, officers started conducting surveillance in the area around 5:00 p.m. that evening. They ran the license plate of a vehicle parked in the area and determined that it was registered to defendant. A photographic lineup using a photograph of defendant was created and shown to Rodriguez.
On the evening of December 5, 2007, at the Milpitas Police Department, Rodriguez was shown six photographs one by one and asked if he could identify the robber. He was shown the sequence of photographs three times. He identified the robber as the man in photograph number one. He said that he was 100 percent sure that it was the man. The photograph he identified was of defendant.
Around 10:50 p.m. that evening, officers followed and then stopped a vehicle leaving Lone Tree Court near where defendant's car was parked. Keith Rucker, the driver of the vehicle, and defendant, the passenger in the vehicle, were both taken into custody. Defendant was wearing a light-colored hooded sweatshirt, and Rucker was wearing a black hooded parka. Officers found $703 during a search of Rucker. A cell phone and $35 was found during a search of defendant, but the phone's number was not the one listed in the Craig's List ad. Officers called the number listed in the Craig's List ad and heard a phone ringing inside defendant's car parked on Lone Tree Court. They seized the phone from the glove box inside the car. Rodriguez's phone number and the phone number of the cell phone found on defendant's person (510-677-1602) were listed on the phone taken from defendant's car.
No photographic lineup that included a photograph of Rucker was ever shown to any of the victims. No gun or cash was found in defendant's car. Officers determined that no weapons were registered to defendant. The parties stipulated that defendant had previously been convicted of a felony.
George Parsons, an employee of Metro PCS, testified that their records showed that defendant's cell phone (510-677-1602) was utilizing a cell tower in Milpitas near Temple Drive when it received a call at 7:10 p.m. on December 1, 2007. The cell phone was utilizing a cell tower on East Capital Expressway near Rinconada Drive in San Jose when it received a call at 7:53 p.m. that same night. Parsons further testified that 99.99 percent of all cell phone calls use the closest cell tower.
After the trial court denied defendant's request to call a firearm expert to testify regarding imitation firearms, and to admit a transcript of Rucker's no contest pleas and admissions in this case, the defense rested without calling any witnesses or presenting any other evidence.
The Verdicts and Sentencing
On July 22, 2009, the jury found defendant guilty of four counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 4, 7, 11 & 13), four counts of assault with a firearm (§ 245, subd. (a)(2); counts 5, 8, 12 & 14), two counts of making criminal threats (§ 422; counts 6 & 9), and two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1); counts 3 & 10). The jury further found true allegations that defendant personally used a handgun during the commission of the offenses in counts 4 through 9 and 11 through 14 (§§ 12022.5, subd. (a), 12022.53, subd. (b)). The jury found defendant not guilty of two counts of second degree robbery (counts 1 & 15), two counts of attempted second degree robbery (counts 17 & 18) and one count each of possession of a firearm by a felon (count 2) and assault with a firearm (count 16).
On August 14, 2009, the court sentenced defendant to 28 years in prison. The sentence consists of the upper term of five years on count 4 (second degree robbery) with a consecutive term of 10 years for the weapon use enhancement; consecutive terms of four years four months (one-third the middle term plus the weapon use enhancement) on each of counts 7, 11, and 13 (second degree robbery); and concurrent terms of three years each on counts 3 and 10 (possession of a firearm by a felon). The court stayed the terms on the assault with a firearm counts (counts 5, 8, 12, & 14) and the criminal threats counts (counts 6 & 9).
Imitation Firearm and Expert Testimony
As part of his motions in limine, defendant requested that the court allow him to bring an imitation firearm, specifically a plastic air gun, into court to use during the cross-examination of witnesses "in order to defend against the allegations that a real firearm was used in each robbery." "Further, if any of the witnesses testify that that imitation firearm resembles the one used against them, the court should grant the defendant[']s request to introduce the imitation firearm into evidence." Defendant separately moved for leave to call a firearms expert to testify that there is a possibility that the weapon used in the incidents was a replica gun. The prosecutor contended that no foundation had been laid to establish that the gun used during the robberies was an imitation or replica firearm.
The court denied defendant's request to show each witness an imitation or replica firearm because there had not been "sufficient foundation to establish that the firearm [used] was a replica." However, it deferred its ruling on "allowing the expert for the defense in terms of his testimony until some point a nexus is established between the proposed testimony regarding the replica firearm and the evidence in this particular case so that it does not fall within the province of speculation . . . . [A]t this point in time, based on what I'm hearing, this is pure speculation." Defense counsel argued that "the issue in this case is that my client is asserting that an imitation firearm was used." The court responded, "There is no evidence of that, just raising the specter and saying something doesn't make it so."
Defendant then filed a written request for a hearing pursuant to Evidence Code section 402 "in order to show the complaining witnesses the imitation firearm outside the presence of the jury to establish its likeness to the weapon used against each of them." (Emphasis omitted.) The court denied the request stating: "I'm not going to have an imitation replica or firearm lineup. [¶] I don't think there is sufficient nexus for such a request, and that will be denied."
At trial, after the prosecution rested, defense counsel requested leave to present the testimony of "Kenton Wong, a firearms expert. [¶] His testimony would be relevant [in] that we had testimony about the fact that the weapon used in the robberies had a slide that moved back and forth, and that the slide was racked so to speak twice, and that nothing was expelled, and without an expert testimony, the jury would be left with the inference that that was a real gun when, in fact, the expert could clarify that with an imitation firearm [one] would not see anything expelled whereas in a real firearm when the slide is racked, the shell would come out, and it's important to this case, because my client is charged with personal use of a firearm on something like 12 of the 19 [sic] counts which adds a lot to his maximum period of time. [¶] The district attorney cross-examined one of the witnesses at some point in time about whether they saw a[n] orange tip on the end of the gun leaving the jury with the inference since there was no orange tip, it was not a[n] imitation firearm. [¶] As we all know, imitation firearms do not have an orange tip, but the jury doesn't know that without an expert coming in and telling them that they're left with this inference that it's a real gun when in fact no gun was found. [¶] I do think we should be able to put on that evidence."
The prosecutor argued that an expert "should not be allowed to testify with regard to the firearm, because no foundation has been laid with respect to a firearm being used [sic] . . . . [¶] Even though the testimony suggested that a slide was racked twice and real firearms would discharge or expel a round and a fake firearm wouldn't, that the court is well aware pursuant to [section 12022.53] the gun just needs to be a gun and it doesn't need to be loaded. [¶] So, we're all assuming that the gun was a loaded handgun, and the testimony from Mr. Rodriguez was very clear, he told us that the gun was racked twice, and with respect to that[, the P]eople would not believe that that particular piece of evidence would permit an expert to come in and testify about what the defense is offering him to testify."
The court ruled as follows. "I think it's a closer question than I thought earlier, but in terms of calling witnesses to testify, whether or not it's a replica or imitation firearm, which . . . appears to be the same thing. [¶] There is some testimony whether or not the gun was real. [¶] . . . [¶] I don't think again that there is a sufficient nexus shown by the defense relative to taking it out of the area of speculation and putting it into the area of relevance. [¶] . . . [S]o at this point in time, I'm going to deny the request to put on an expert based on the information and foundation thus far laid out by the defense. [¶] Of course, as I stated earlier, I will leave that door open relative to proffered evidence from the defense."
The following day, the defense rested without proffering any further testimony or other evidence.
Defense counsel argued to the jury that defendant was not guilty of any of the offenses and that the robber was Keith Rucker. She also argued as to the firearm allegations that "there is no evidence that this was a real gun. [¶] It was very real to some people, it was very real. [¶] The fear was very real, but there has been no evidence that it was a real firearm. [¶] No one was shot. [¶] No bullets came out. [¶] The people are hit on the head, and you have to ask yourself, has it been proven that this was a real gun, a real firearm, and I submit that what Keith Rucker was doing was trying to get money and the only time he used this weapon is when someone wasn't giving him the money quickly enough, so, he hit him on his head. [¶] This was a terrible thing, but it wasn't a crime in which he was trying to kill someone. [¶] It was simply to get money, and all he needed to do is use something that looks like a gun. [¶] So, [the prosecutor] has failed to prove these allegations."
The court instructed the jury regarding the personal use enhancements in part that "[t]he word firearm is any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion. [¶] The firearm need not be operable except as to counts 5, 8, 12, 14 and 16. [¶] The term 'personally used a firearm,' as used in this instruction means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. [¶] The People have the burden of proving the truth of this allegation. [¶] If you have a reasonable doubt that it is true, you must find it to be not true." (CALJIC No. 17.19.)
On appeal, defendant contends that the court prejudicially abused its discretion when it denied his request to show an imitation firearm to each witness and to present expert testimony on imitation firearms. "The court demanded that Mr. Love produce evidence that the weapon used in the crimes was an imitation firearm before his counsel could question the witnesses about whether the robber's weapon looked like the proffered imitation firearm." "But the whole point of the proposed questioning was to establish that the firearm used in the crimes was an imitation one (or at least that there was a reasonable doubt as to whether it was imitation or real)." "If the cross-examination had been permitted and the witnesses had testified that the imitation firearm did not resemble the weapon used in the crimes, then the trial court would have been justified in denying admission of the imitation firearm into evidence." "But there was no legitimate ground for refusing Mr. Love the opportunity to ask the question."
Defendant separately contends that, even if the trial court's rulings were not an abuse of discretion under state law, the court denied him his rights to present a defense, to due process, and to a fair trial. "The trial court['s] ruling prevented Mr. Love from presenting a full defense to the charges alleged in the third amended information and from having the jury determine beyond a reasonable doubt whether the firearm which was used in the charged crimes was a real firearm or an imitation. By excluding relevant evidence as to whether or not the firearm used in the charged offenses was real, on the grounds that some kind of 'foundation' or 'nexus' was required in order to remove the defense theory from the realm of 'speculation,' and by denying Mr. Love a hearing at which he could establish the allegedly missing foundation, the trial court denied Mr. Love his rights to due process, to present a defense, and to a fair trial under the Sixth and Fourteenth Amendments."
The Attorney General contends that defendant's "gambit was simply an effort to introduce speculative evidence." "[T]he visual similarity between imitation and actual guns [would have] no tendency in reason to prove which of the two [defendant] actually used during the charged offense[s]. Rather, the introduction of the disputed evidence would have been a naked invitation for jurors to speculate that [defendant] robbed the victims with an imitation gun rather than a visually indistinguishable actual gun, despite the dearth of any testimony or physical evidence supporting the former scenario. The trial court therefore acted within its discretion by excluding the proffered evidence because its speculative inferences rendered it irrelevant and inadmissible." The Attorney General also argues that any error was harmless. "In light of [the] overwhelming evidence establishing that [defendant] used a real gun in the course of the charge offenses, he cannot show a reasonable probability of a more favorable outcome but for the exclusion of disputed evidence." The Attorney General further contends that, "[b]ecause the trial court did not completely exclude evidence of [defendant's] defense, he cannot show a denial of his constitutional rights. [Defendant's] claim of reversible error accordingly fails."
A trial court has broad discretion in determining whether proffered evidence is relevant and therefore admissible. (People v. Schied (1997) 16 Cal.4th 1, 13-14.) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) This is so whether the trial court's decision to admit or not admit evidence was made in limine or following a hearing pursuant to Evidence Code section 402. (People v. Williams (1997) 16 Cal.4th 153, 197 (Williams).)
Section 12022.5, subdivision (a) provides in pertinent part that "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." Section 12022.53, subdivision (b) provides in pertinent part: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply." Robbery is an offense specified in subdivision (a). As used in both sections 12022.5 and 12022.53, " 'firearm' means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion." (§ 12001, subd. (b).) "[T]oy guns obviously do not qualify as a 'firearm,' nor do pellet guns or BB guns because, instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile. (§ 12001, subd. (g).)" (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435.)
"The trial court has broad discretionary powers to permit the use of demonstrative evidence. It is a practice of long-standing to permit witnesses in elaborating on their description of a physical item which is not actually present in court, to point out the similarity of things that are actually present in the courtroom. Such practice is proper. (Evid. Code, § 351; [citations].)" (People v. Reaves (1974) 42 Cal.App.3d 852, 858 (Reaves).) "When an object connected with the commission of a crime cannot be produced at the trial, the 'character and appearance of such an object may be proved by the testimony of witnesses and, for the purpose of illustrating and making more clear the testimony, there may be introduced in evidence . . . an object shown to be similar to the object involved in the offense . . . . When guns were used in the commission of the offense charged, testimony that certain guns produced at the trial were similar to those used in the . . . crime is admissible and such guns themselves may be received in evidence . . . to illustrate and show to the jury the kind and appearance of the weapons used. . . .' [Citations.]" (People v. Jordan (1961) 188 Cal.App.2d 456, 464 (Jordan); see also People v. Daniels (1963) 223 Cal.App.2d 441, 445.)
In People v. Barnett (1998) 17 Cal.4th 1044, two witnesses testified that they saw the defendant at one point snag the victim in the back with a treble fish hook and yank on it. One of the witnesses also testified that the lure had feathers attached to it. (Id. at pp. 1073, 1134-1135.) Over a defense objection, the prosecutor showed the two witnesses a featherless three-pronged fishing lure. One of the witnesses indicated that the displayed lure depicted what he meant by " ' a three-pronged lure.' " The other witness described the displayed lure as a " 'treble hook' but not a 'rooster tail.' " (Id. at p. 1135.) On appeal, the defendant contended that the prosecutor committed misconduct in displaying the lure and that the trial court erred in allowing him to do so because the lure had no connection to the crimes. (Ibid.) Our Supreme Court disagreed. "It is entirely proper for a prosecutor to use objects similar to those connected with the commission of a crime for purposes of illustration. [Citation.] . . . Because it was useful for illustrative purposes and had no tendency to evoke an emotional bias against the defendant as an individual [citations], use of the nonfeathered lure was permissible and did not warrant exclusion under Evidence Code section 352. [¶] Furthermore, the prosecutor did not use deceptive or reprehensible methods of persuasion [citations] in showing the lure to the witnesses and did not try to pass it off as the lure used by the defendant. Commendably, the prosecutor specifically elicited testimony . . . identifying the difference between the two lures. No misleading impression was created." (Id. at pp. 1135-1136.)
In Reaves, the gun used by the defendant during a robbery was never recovered, but various witnesses to the robbery described the gun the defendant carried. During the examination-in-chief of the prosecution witnesses, the prosecutor introduced three guns which were not connected with the defendant or the robbery. The guns were shown to the witnesses for demonstrative purposes to permit the witnesses to testify how the gun used by the defendant compared to the weapons that were actually in court. (Reaves, supra, 42 Cal.App.3d at pp. 857-858.) On appeal, the defendant contended that the trial court erred in permitting the prosecutor to offer as demonstrative evidence weapons which were not connected with the case. (Id. at p. 857.) The appellate court found no error. (Id. at pp. 857-858.)
In Jordan, the prosecutor exhibited an automatic pistol, which was marked for identification " 'with the understanding it is not any gun that was used in this alleged robbery.' " (Jordan, supra, 188 Cal.App.2d at p. 462.) The pistol that was used in the robbery was not available. (Id. at p. 463.) The prosecutor asked a witness if that pistol resembled the weapon he saw the defendant use during the incident in question. The witness replied in the affirmative and stated further that it was of the same appearance as the gun he saw in the defendant's hand. (Id. at p. 462.) The gun was then admitted into evidence. (Id. at p. 464.) On appeal, the defendant contended that the court erred in admitting the pistol into evidence because it was not the one used in the robbery. (Id. at p. 463.) The appellate court found that the court did not err in receiving the pistol in evidence. (Id. at p. 464.)
In the case before us, the firearm used in the robberies was never recovered, but the victims of the robberies testified that the firearm used looked, felt, and sounded like a real gun. Rodriguez testified that "[t]he gun was in iron, and it was - it hurt me a lot." "I was sure that it was true gun, a real gun." Lopez testified that it was not an imitation or BB gun. "Judging by the weight, it was not imitation, it was real . . . ." He has bought BB guns, "[b]ut it didn't sound the same." Defendant sought leave to present an imitation firearm, specifically a plastic gun, and an expert witness. The expert had never seen the weapon used in the robberies, but his proposed testimony was that an imitation firearm resembles a real firearm so that there was a possibility that the weapon used during the robberies was not a real firearm. The court properly found that, on the record before it, the proffered evidence was irrelevant in that it had no "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
The relevance of the proffered evidence (the demonstration of a plastic imitation firearm and the expert testimony on imitation firearms) depended on the existence of a preliminary fact (the firearm used in the robberies might have been an imitation firearm), and defendant had the burden of producing evidence as to the existence of the preliminary fact. (Evid. Code, § 403, subd. (a).) Defendant could have done this by eliciting testimony from a witness that the weapon he saw could have been plastic, or could have been a BB gun, or otherwise looked, felt, and/or sounded like it could have been an imitation firearm. As defendant was unable to elicit such testimony from any witness, the court did not err in ruling that his proffered evidence on imitation firearms was inadmissible. (Ibid.) This is so even though the trial court denied defendant's request to conduct an Evidence Code section 402 hearing. As cross-examination of the victim-witnesses was the most obvious means of discovering any basis for defendant's claim of the existence of the preliminary fact, and defense counsel was provided every opportunity to cross-examine the witnesses regarding the possibility that the weapon used in the robberies might not have been a real firearm, the trial court here was within its discretion in refusing to conduct additional proceedings outside the jury's presence on that issue. (Williams, supra, 16 Cal.4th at p. 197.) We are satisfied that there was no abuse of discretion.
Furthermore, by refusing defendant's motion for leave to present the imitation firearm and expert testimony, the trial court's alleged error, if any, did not rise to the level of an unconstitutional deprivation of defendant's right to present a defense. "As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.] Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, '[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension. [Citation.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Although the trial court did not allow defendant to present to the jury an imitation firearm and expert testimony on imitation firearms, any error was harmless. Defendant's defense was that the robber was Rucker and that the robber used an imitation firearm. Defense counsel was able to cross-examine all witnesses regarding the possibility that the robber was Rucker and the possibility that the robber used an imitation firearm. Defense counsel was also able to argue to the jury that the robber was Rucker and that the prosecution had not proved that the firearm Rucker used was a real firearm and not an imitation. Thus, assuming the trial court erred by not allowing defendant's proffered demonstrative and expert testimony, defendant was still able to place before the jury evidence regarding his defense. In light of the eyewitness identifications of defendant, the witnesses' description of the weapon used in the robberies, the injuries suffered by the victims as a result of being hit on the head with that weapon, and the testimony that the cell phone used in the robberies was found in defendant's car a few days after the robberies occurred, we cannot say it is reasonably probable that the jury would have reached a more favorable verdict in the absence of any such alleged error. (People v. Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we find that defendant has failed to show a deprivation of his constitutional rights to present a defense, to due process, and to a fair trial.
Defendant contends that the court erred when it imposed punishment for both counts 3 and 10, the convictions for possession of a firearm by a felon. (§ 12021, subd. (a)(1).) Citing People v. Spirlin (2000) 81 Cal.App.4th 119 (Spirlin), defendant argues: "While it was proper for the trial court to impose a concurrent sentence as to one of the felon in possession of a firearm counts, it should have stayed imposition of punishment on the other one. [Defendant's] 'intent to possess the weapon as a felon did not change each time he committed a robbery.' . . . Nor was there any evidence that [defendant's] possession of the firearm was not continuous during the period of about half an hour when the two incidents in question occurred. [Defendant] should only have been punished once for his violation of section 12021."
The Attorney General concedes that the sentence on count 10 should be stayed pursuant to section 654. We agree with the concession.
In Spirlin, the issue before the appellate court was whether the defendant "can be thrice punished for being a felon in possession of the same handgun on three different occasions." (Spirlin, supra, 81 Cal.App.4th at p. 130.) The appellate court found that, on the evidence presented in that case, the trial court should have stayed the imposition of sentence on two of the three counts rather than run them concurrently. (Id. at p. 131.) The defendant in Spirlin was convicted of being a felon in possession of a handgun on three separate occasions, on August 24, 1996, the date of the first robbery, September 20, 1996, the date of the second robbery, and September 26, 1996, the date the defendant was arrested and the handgun seized. (Id. at p. 129.) The appellate court ruled: "The key inquiry here is whether [the] defendant's objective and intent in possessing the handgun on all three occasions were the same, thus making the crime one indivisible transaction subject only to one punishment under section 654. [Citation.] Section 12021 does not require any specific criminal intent; general intent to commit the proscribed act is sufficient. [Citation.] The act proscribed by section 12021 is possession of a firearm by a convicted felon. [Citation.] Possession may be either actual or constructive as long [as] it is intentional. [Citation.]" (Id. at p. 130.) "In our opinion, the foregoing evidence is sufficient from which to infer that [the] defendant had continuous constructive possession of the gun from a couple of months before the robberies to when the gun was found in defendant's apartment. While what [the] defendant did later with the weapon, i.e., commit the robberies, were 'separate and distinct transaction[s] undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon' [citation], the same cannot be said of his continuous possession of the weapon. In other words, [the] defendant's intent to possess the weapon as a felon did not change each time he committed a robbery or when he was arrested and the gun confiscated. [¶] We conclude [the] defendant's possession of the handgun was a single act with a single objective." (Id. at pp. 130-131.)
As did the appellate court in Spirlin, we conclude that defendant's possession of the firearm during the two robbery incidents, which happened about one-half hour apart, was a single act with a single objective. Accordingly, the trial court should have stayed the imposition of sentence on count 10, rather than run it concurrently. " 'Where multiple punishment has been improperly imposed, ". . . the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. [Citation.]" [Citation.]' [Citation.]" (Spirlin, supra, 81 Cal.App.4th at p. 131.)
The judgment is modified by staying the sentence imposed on count 10. As so modified the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J. MCADAMS, J.