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The People v. James Mart Phipps

March 9, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES MART PHIPPS, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF070004744)

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

P. v. Phipps

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 James Mart Phipps of giving or lending an assault weapon (Pen. Code, § 12280, subd. (a)(1); unspecified section references that follow are to the Penal Code; count 1), possessing an assault weapon (§ 12280, subd. (b); count 2), and possessing a firearm while prohibited from doing so by a restraining order, a misdemeanor (§ 12021, subd. (g)(2); count 3). The court suspended imposition of sentence and granted defendant probation.

Defendant appeals. He contends (1) insufficient evidence supports counts 1 and 2, (2) the trial court prejudicially erred in refusing a requested instruction on the defense of lawful registration of an assault weapon, requiring reversal of counts 1 and 2, and (3) his admissions were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). We affirm the judgment.

FACTS AND PROCEEDINGS

Defendant's wife obtained a temporary restraining order (TRO) that required defendant to relinquish his firearms to law enforcement officers. As a result of the TRO, defendant's name appeared on a computer database which listed all persons who were prohibited from owning firearms but had firearms registered in their name.

On June 27, 2007, Department of Justice, Bureau of Firearms, Special Agent Lee Careaga found defendant's name on the database which showed that defendant had an AR-15 assault weapon and a SWD MAC 11 assault pistol (MAC 11) registered in his name. Defendant legally registered the weapons in 1990.

On June 28, 2007, Careaga learned from the Woodland Police Department that defendant had turned in the AR-15 but not the MAC 11. Careaga went with two other agents to the Cinderella Hotel where defendant was staying. Defendant stated that he had turned the AR-15 in to the police for safekeeping. Defendant claimed three or four times that he had broken the MAC 11 with a hammer and had thrown it away and he denied that he had given the MAC 11 to a friend. Defendant then signed a "no longer in possession" (NLIP) form which reflected that defendant no longer owned or possessed either the AR-15 or the MAC 11.

Careaga testified that the purpose of the NLIP form was to deregister the listed weapons. Careaga filled out the form with the make, model and serial number of defendant's two assault weapons and had defendant sign the form.

Careaga did not believe that defendant had destroyed the MAC 11 and continued to question him about that weapon. Careaga told defendant that, by signing the form, he was committing perjury if the MAC 11 had not been destroyed. Defendant then admitted he had given the MAC 11 to Sean Marquis. Since Marquis was out of the country and since Marquis rented a room in Jay Fleming's home, Careaga called Fleming. Careaga asked Fleming to look for the weapon and Fleming looked for and found the MAC 11 in a briefcase in Marquis's bedroom closet amongst Marquis's rifles, shotguns and handguns. Fleming did not know how the gun got into his house. Careaga went to Fleming's home and, using the serial number on the gun, confirmed the MAC 11 found in Marquis's closet belonged to defendant. Marquis was not the registered owner of the MAC 11.

On June 29, 2007, Careaga obtained a search warrant and seized the MAC 11 from Marquis's room in Fleming's home. Careaga performed a function check on the weapon and found that the MAC 11 was operable.

On July 5, 2007, Careaga interviewed defendant again about the MAC 11. Defendant admitted that he knew he had given the gun to Marquis when he first spoke to the agents.

Defendant testified at trial. He explained that over his lifetime, he had owned about 25 firearms. He was a hunter and gun collector. At one time, he had been licensed to sell guns and had a gun shop. In November 2005, defendant and his then-wife went to Los Angeles to visit his dying father. Defendant did not want to leave his firearms in the house with teenagers so defendant asked Marquis to store the weapons. Defendant denied lending the guns to Marquis to use. Defendant also denied transferring ownership to Marquis.

Due to the TRO, defendant understood that he had to turn in or sell his firearms. He owned a .22 pistol, an AR-15 (assault weapon), and a MAC 11 (assault weapon) at the time, had lawfully registered the assault weapons in December 1990, and had been storing all firearms at Marquis's home since November 2005. On June 4, 2007, defendant called Marquis, told him to put the firearms in the trunk of his car, pick defendant up, and take him to the police station where he would turn the guns in. Defendant never looked in the trunk of Marquis's car to insure that all the weapons were in the trunk of the car.

At the police station, a police officer went to the car and retrieved the guns. Defendant testified that he believed that Marquis had brought all of defendant's guns and that the officer had retrieved all of them. Defendant claimed he did not read the paperwork he received from the police describing the guns that had been turned in.

Defendant explained that he had told Careaga that the MAC 11 had been destroyed with a hammer because the agents had yelled at him and he was confused. Defendant claimed he told Careaga that he was storing the MAC 11 at Marquis's house before he signed the NLIP form. He signed the form believing that he was attesting to the fact that he did not have the guns in his possession.

In rebuttal, a property and evidence technician for the police department explained that a person is given a receipt, identifying the weapons turned in. Defendant was given a receipt dated June 2, 2007, showing that he turned in a .22 caliber pistol and an AR-15 rifle. The technician confirmed that an officer retrieves the weapons from the person's car.

DISCUSSION

I

The Sufficiency of the Evidence

Defendant contends that the evidence is insufficient to support his convictions on counts 1 and 2 because the MAC 11 was legally registered when he took the weapon to Marquis's house for storage in November 2005, that it is lawful to do so with that person's express permission, and that neither the TRO nor the NLIP form acted to deregister the weapon. We conclude sufficient evidence supports his convictions.

"'To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.'" (People v. Carpenter (1997) 15 Cal.4th 312, 387.)

Defendant was convicted of violating section 12280, subdivision (a), giving or lending any assault weapon (count 1), and section 12280, subdivision (b), possessing an assault weapon (count 2). Section 12280, subdivision (a), provides, in relevant part, as follows:

"(a)(1) Any person who, within this state, . . . gives or lends any assault weapon . . . , except as provided by this chapter, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for four, six, or eight years." (Italics added.)

The court instructed the jury on the elements of the offense in the language of CALCRIM No. 2560 as follows:

"One. The defendant gave or lent an assault weapon, specifically a[] [MAC 11] to another;

"Two. The defendant knew that he gave or lent it; and

"Three. The defendant knew or reasonably should have known that it had characteristics that ...


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