IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
March 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 made it an assault weapon."
Defendant was also convicted of violating Section 12280, subdivision (b), which provides, in relevant part as follows:
"(b) Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year, or by imprisonment in the state prison." (Italics added.)
The court instructed the jury on the elements of this offense as follows:
"One. The defendant possessed an assault weapon, specifically a [MAC 11];
"Two. The defendant knew that he possessed it; and
"Three. The defendant knew or reasonably should have known that it had characteristics that made it an assault weapon."
As defendant notes, it was undisputed that he had legally registered the MAC 11 in 1990. Defendant testified that in November 2005, he had given the MAC 11 to Marquis for storage purposes. Relying upon section 12280, subdivisions (o) and (p), defendant argues that neither section 12280, subdivision (a) nor section 12280, subdivision (b) applies to a person who gives/lends or possesses a lawfully registered weapon if the person acts in accordance with section 12285.
Section 12280, subdivisions (o) and (p) provide, in relevant part, as follows:
"(o) Subdivisions (a), (b), and (c) shall not apply to any of the following persons:
"(1) A person acting in accordance with Section 12285.
"(2) A person acting in accordance with Section 12286, 12287, or 12290.
"(p) Subdivisions (b) and (c) shall not apply to the registered owner of an assault weapon . . . possessing that firearm in accordance with subdivision (c) of Section 12285." (Italics added.)
Section 12285, in turn, provides, in relevant part, as follows:
"(c) A person who has registered an assault weapon . . . under this section may possess it only under any of the following conditions unless a permit allowing additional uses is first obtained under Section 12286:
"(1) At that person's residence, place of business, or other property owned by that person, or on property owned by another with the owner's express permission . . . ." (Italics added.)
Citing section 12285, subdivision (c)(1), defendant argues that a person may possess the weapon "on property owned by another with the owner's express permission."
"'In construing a statute, our task is to ascertain the intent of the Legislature so as to effectuate the purpose of the enactment. [Citation.] We look first to the words of the statute, which are the most reliable indications of the Legislature's intent. [Citation.] We construe the words of a statute in context, and harmonize the various parts of an enactment by considering the provision at issue in the context of the statutory framework as a whole. [Citations.]' [Citation.]" (People v. Cottle (2006) 39 Cal.4th 246, 254.)
We conclude that defendant's reliance on section 12285, subdivision (c)(1) is misplaced.
The statutory scheme is as follows. Pursuant to section 12280, subdivision (a)(1), no person may give or lend an assault weapon to another in California except as provided in the Roberti-Roos Assault Weapons Control Act of 2004 (AWCA) (§ 12275 et seq.) and, according to the provisions of subdivision (b) of section 12280, no person may possess an assault weapon in California except, again, as provided in the AWCA.
Pursuant to subsection (o) of section 12280, those prohibitions shall not apply if, among other circumstances, the registered owner of the weapon acts is in accordance with section 12285.
Section 12285, in turn, provides that a person who has otherwise complied with the law may possess a registered assault weapon only in certain places, that is, (1) in his home, (2) at his place of business, (3) at another property owned by the person to whom the weapon is registered or, (4) on property of another if the registered owner has the express permission of the person owning the other property.
Defendant's argument fails because he did not possess the weapon in Fleming's house with Fleming's express permission. Indeed, at the time the weapon was found in Marquis's room, defendant plainly was not in possession of the weapon and Fleming was apparently unaware of its presence.
Section 12280, subdivision (k) governs the lending of an assault weapon. That subdivision provides:
"(k) Subdivision (a) [making it unlawful to lend an assault weapon] shall not apply to either of the following:
"(1) A person who lawfully possesses and has registered an assault weapon . . . pursuant to this chapter who lends that assault weapon . . . to another if all the following apply:
"(A) The person to whom the assault weapon . . . is lent is 18 years of age or over and is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm.
"(B) The person to whom the assault weapon . . . is lent remains in the presence of the registered possessor of the assault weapon . . .
"(C) The assault weapon . . . is possessed at any of the following locations:
"(i) While on a target range that holds a regulatory or business license for the purpose of practicing shooting at that target range.
"(ii) While on the premises of a target range of a public or private club or organization organized for the purpose of practicing shooting at targets.
"(iii) While attending any exhibition, display, or educational project that is about firearms and that is sponsored by, conducted under the auspices of, or approved by a law enforcement agency or a nationally or state recognized entity that fosters proficiency in, or promotes education about, firearms.
"(2) The return of an assault weapon . . . to the registered possessor, or the lawful possessor, which is lent by the same pursuant to paragraph (1)."
A defense based on the provisions of subdivision (k) would also have been destined for failure because, among other things, once the gun was lent, Marquis did not remain in defendant's presence (§ 12280, subd. (k)(1)(B)) and it was possessed by Marquis in Fleming's house which was not a lawful location (§ 12280, subd. (k)(1)(C)(i)-(iii).)
Reading the relevant statutes in any other manner would circumvent one of the purposes of the AWCA which is to insure that law enforcement officers know where registered assault weapons are at all times in order to protect the public against the serious danger to life and safety that such weapons pose. (See In re Jorge M. (2000) 23 Cal.4th 866, 871-874; Kasler v. Lockyer (2000) 23 Cal.4th 472, 484-488, 490-491; People v. James (2009) 174 Cal.App.4th 662, 676 ["unusual and dangerous nature" of assault weapons and .50-caliber BMG rifles, weapons which are not the types "typically possessed by law-abiding citizens for lawful purposes such as sport hunting or self-defense; rather, these are weapons of war"]; Jackson v. Department of Justice (2001) 85 Cal.App.4th 1334, 1339-1341, 1346-1349; § 12285, subd. (a) [registration to contain description of assault weapon and name, address, date of birth and thumbprint of owner].)
Defendant argues that, since the evidence showed that he lent Marquis the weapon in 2005, the allegation that he lent the weapon in 2007, must fail. This argument too is short-lived. Whenever defendant lent Marquis the assault weapon, the loan continued at least until defendant retrieved the weapon, which he had not done as of June 2007.
Finally, defendant's argument that the evidence fails because he never transferred ownership of the weapon or gave Marquis permission to use it are red herrings. Nothing in the statutory scheme requires either one in order to violate section 12280.
The evidence was sufficient to support the convictions.
Defendant contends that the trial court erred in refusing to instruct on his requested affirmative defense of "lawful registration of an assault weapon." We reject defendant's claim.
The trial court instructed the jury on the charged crimes. Defense counsel requested an instruction on the affirmative defense of lawful registration in the language of CALCRIM No. 2560 as follows:
"The defendant did not unlawfully possess, give, or lend an assault weapon if he had registered the weapon. The People have the burden of proving beyond a reasonable doubt that the defendant did not register the weapon. If the People have not met this burden, you must find the defendant not guilty of this crime."
The language in the form instruction, CALCRIM No. 2560, provides in relevant part:
"The defendant did not unlawfully (possess/manufacture/cause to be manufactured/ distribute/transport/import/keep for sale/offer or expose for sale/give/lend) (an assault weapon/a .50 BMG rifle) if (he/she) (had registered the weapon/had a valid permit to (possess/manufacture/sell) the weapon/ __________ ). The People have the burden of proving beyond a reasonable doubt that the defendant did not (register the weapon/have a valid permit to (possess/manufacture/sell) the weapon/ ________ ). If the People have not met this burden, you must find the defendant not guilty of this crime."
The court refused to so instruct, finding that the language would be misleading because the restraining order prevented defendant from lawfully possessing the MAC 11.
"It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]--evidence sufficient for a reasonable jury to find in favor of the defendant [citation]--unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .' [Citations.]" (People v. Salas (2006) 37 Cal.4th 967, 982-983.)
We conclude that the trial court properly refused the requested affirmative defense instruction on the grounds given. And, we note, standing alone, defendant's requested instruction would have been a misstatement of the law under the circumstances of this prosecution. The trial court did not err.
The Motion to Suppress
Defendant contends that the trial court erroneously denied his motion to suppress his statements. We reject this contention.
Defendant filed a motion to suppress his written and oral statements to the police, including the NLIP form, claiming the same were obtained in violation of his constitutional right against self-incrimination and Miranda. He argued that the "fruit of the poisonous tree" doctrine applied to exclude his statements.
At the hearing on defendant's motion, Careaga testified that he interviewed defendant three times. The first interview lasted 35 to 45 minutes and occurred on June 28, 2007, at the Cinderella Hotel where defendant was staying temporarily. Careaga and two other agents knocked on defendant's hotel room door at about 7:35 p.m. Defendant answered the door and invited them inside the room. Defendant's friend Dustin Grover was present in the room. Careaga was wearing jeans, a shirt with "Department of Justice" written on it, and, underneath the shirt, a bullet proof vest. He was carrying a gun and pepper spray. The other two agents were in uniform.
Careaga asked defendant about an assault weapon. Defendant initially claimed that he had destroyed the weapon and signed the NLIP form. Later, after Careaga got angry and loud with defendant and accused him of lying, defendant admitted that he was keeping the weapon at his friend's home.
During the interview, Careaga did not tell defendant that he was required to answer questions. Defendant did not ask for an attorney or ask the agents to leave. Defendant did say that he had spoken to an attorney about the TRO. Careaga did not handcuff defendant and did not draw his gun. Careaga stood two to five feet from defendant. Defendant stood during a portion of the interview. Careaga stated that defendant could have left the room at any time. The agents left without arresting defendant.
Careaga did not seize a weapon from defendant's home. He seized a MAC 11 from the home belonging to a friend pursuant to a search warrant, executed before the second interview. Defendant did not live at his friend's home.
The second interview occurred on July 5, 2007. Careaga and the same two agents went to defendant's hotel room and defendant again invited them inside the room. No one else was present during this interview. Careaga accused defendant of lying about the assault weapon on June 28, 2007. Defendant admitted that he had lied. Careaga then advised defendant pursuant to Miranda. Defendant stated that he understood and agreed to talk. Careaga then raised his voice and accused defendant of having committed perjury by signing the NLIP form. Defendant "threatened [Careaga] with [defendant's] attorney." The agents left without arresting defendant.
On August 21, 2007, Careaga arrested defendant. Careaga gave defendant the Miranda warnings and defendant said he understood his rights and waived them. Defendant did not ask for an attorney to be present. Careaga then interviewed defendant. Careaga claimed that defendant's statements concerning the MAC 11 were similar to those he gave on July 5, 2007, and that he was angry with his former spouse regarding the TRO.
Grover testified for the defense. Grover explained that on June 28, 2007, he and defendant were watching television and eating dinner when the agents arrived. Defendant answered the knock on the door and invited the agents inside the room. The agents searched defendant before questioning him. Two agents stood next to the door. Careaga stood next to defendant and asked them to have a seat. Grover did not believe that defendant was free to leave and Grover was afraid to ask if he could leave. Grover asked whether he "should" leave and they said he could have a seat. Defendant asked if he needed an attorney. Careaga answered in the negative and began to question defendant. The questioning lasted about 30 minutes. When Grover asked to use the bathroom, two agents were outside the room. The remaining agent searched Grover and then the bathroom before allowing Grover to use it. Grover claimed that the agents never told defendant that he was free to leave.
In denying defendant's motion, the court concluded that there was no indicia of arrest and no custodial interrogation. Notwithstanding the presence of three agents, the court noted that two of the officers left the room at one point during the first interview. The court concluded that the length of the interview was "not onerous" and the location was "favorable to the defendant." The court also concluded that defendant did not make an unequivocal and unambiguous request for counsel.
"It is settled that the Miranda advisements are required only when a person is subjected to 'custodial interrogation.' [Citations.] 'Custodial' means 'any situation in which "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."' [Citations.] Interrogation '"refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect."' [Citations.]" (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161 (Aguilera).)
"The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] 'Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is . . . reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a "mixed question of law and fact" . . . .' [Citation.] Accordingly, we apply a deferential substantial evidence standard [citation] to the trial court's conclusions regarding '"basic, primary, or historical facts: facts 'in the sense of recital of external events and the credibility of their narrators . . . .'"' [Citation.] Having determined the propriety of the court's findings under that standard, we independently decide whether 'a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)
In determining whether a police contact constitutes a custodial interrogation, courts have identified numerous relevant factors. "Among them are whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that he or she was free to terminate the interview and leave at any time and/or whether the person's conduct indicated an awareness of such freedom; whether there were restrictions on the person's freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation." (Aguilera, supra, 51 Cal.App.4th at p. 1162.)
Defendant argues: law enforcement instigated both interviews; the officers were in uniform and armed; defendant was pat-searched; he was questioned as a "suspect" and was not told he could terminate the interview; two officers "guarded" the door while Careaga questioned defendant; Grover was intimidated, was afraid to ask to leave and when he asked permission to use the bathroom, he was pat-searched; and Careaga's questioning was aggressive, confrontational, and accusatory.
The officers were in uniform which included being armed. Defendant interprets the officers standing by the door as "guard[ing]" the door but, as the trial court noted, one or both left the room during the first interview. Both defendant and Grover were pat-searched, presumably for officer safety reasons. Although Grover was intimidated, defendant did not testify at the motion hearing and say he was. Careaga stated that he got angry and loud when he believed that defendant had been lying--defendant later admitted that he had been lying. Defendant's only reference to an attorney during the first interview was when he commented that his attorney was trying to get the TRO cancelled.
We conclude that the trial court properly determined that defendant was not in custody for Miranda purposes. Although instigated by law enforcement, defendant invited the officers into his hotel room on both June 28 and July 5. The interview on June 28 lasted only about 45 minutes. Defendant was free to leave in the sense that he was not physically restrained. In the first interview, there were three agents, defendant and his friend. At one point, two of the officers left the room. In the second interview, there were three agents and defendant. Defendant was not arrested on either June 28 or July 5. A reasonable person would have felt that he could end either interview (June 28, July 5) and ask the officers to leave. The trial court properly denied defendant's motion.
The trial court awarded two actual days and zero conduct days for a total of two days of presentence custody credit. Pursuant to this court's miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to section 4019 apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, subds. (b), (c).) Having served two actual days, defendant is entitled to two conduct credit days for a total of four days of presentence custody credit.
The order of probation is modified to provide for two conduct days for a total of four days of presentence custody credit. As modified, the judgment (order) is affirmed.
We concur: ROBIE, J. BUTZ, J.
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