IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MASOOD MOHAMMAD AHMADZAI, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F03286)
The opinion of the court was delivered by: Duarte , J.
P. v. Ahmadzai
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Based on a tip, law enforcement searched the residence of defendant Masood Ahmadzai, a felon who was on probation. They found a shotgun and two types of ammunition. A jury convicted defendant of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and two counts of unlawful possession of ammunition (Pen. Code, § 12316, (b)(1)). The court found true an allegation that defendant had committed his offenses while on bail (Pen. Code, § 12022.1) and sentenced defendant to three years four months in prison.
On appeal, defendant contends the trial court erred in excluding documentary evidence showing that defendant's stepson had a motive to plant the gun and in refusing defendant's curative instruction after the prosecutor commented on defendant's failure to provide such evidence. He further contends the instructions on constructive possession and momentary possession were erroneous and there was cumulative error. We disagree and hold that the trial court acted within its discretion in excluding the evidence and the instructions were proper. We shall affirm.
Defendant was convicted of embezzlement in 1999. In the spring of 2009, he was on bail for a pending charge of insurance fraud.
In the last week of March 2009, law enforcement received information that defendant had guns. A search was organized. A detective with the Department of Insurance Fraud Task Force watched a house at 191 Lost Creek Drive in Folsom and saw defendant leave. California Highway Patrol Officer Schnabel followed defendant's truck and eventually radioed for a black and white unit to stop it. Once stopped, defendant produced his identification. Schnabel told him they were going to search his residence and asked defendant for the key. Defendant said he did not have one, but that his wife was home and would let them in. When Schnabel asked defendant how he got in the house, defendant said he had a key and retrieved it from his key ring. Defendant was taken to the house on Lost Creek Drive.
At the house, another CHP officer asked defendant if there were weapons inside. Defendant said there was a shotgun in a safe in the bedroom and gave the officer the combination. The officer opened the safe and found a shotgun, shotgun shells, and handgun ammunition. Officers also found defendant's citizenship papers, passports, a Comcast bill in defendant's name, and an insurance receipt in the safe. Men's clothes were in the closet. In a smaller safe elsewhere in the house, they found a large sum of money.
Defendant's probation officer was present for the search. She asked defendant if there was anything in the house that he "shouldn't have" (ostensibly due to his status as a felon). Defendant told her about the shotgun in the bedroom safe; he said it was his wife's. The probation officer asked defendant how long he had lived at the Lost Creek Drive address. He first said a couple of days. When asked again he said two years.
Defendant told an officer he had another house at 104 Ash Creek Court in Folsom. He said that house was locked but the police could enter through the garage using an opener in his wife's Suburban. The police searched that house; it was empty except for boxes of office supplies and a boat outside. They found no furniture, kitchen utensils, mattress, bedding, clothing, or personal effects.
Defendant had purchased the shotgun in 1997 from Wild Sports.
In his defense, defendant presented evidence that he lived at the Ash Creek Court residence rather than the Lost Creek Drive residence, and that he did not know about the shotgun until that morning. He claimed his stepson Dorin Brandusa had stolen a large amount of money from him and planted the shotgun in retaliation after defendant threatened to call the police about the theft.
Defendant had a long-term relationship with Dorina*fn1 Brandusa; he referred to her as his wife, although they were not formally married. They had three children--although at trial Dorina said she was not sure defendant was their father--and Dorina had an older son Dorin, who was 27. Defendant called Dorin his stepson and had raised him since the boy was four years old.
Many years before, defendant had purchased a shotgun for protection. After defendant's felony embezzlement conviction, Dorina asked Dorin to take the gun and Dorin was the last person with it. Dorin knew the combination of the safe as he had helped set it up.
A few days before the search, Dorina came home and found the garage door open. She thought there had been a burglary, but did not find anything missing. The iron security gate across the driveway was closed.
The morning of the search, Dorina saw a shotgun case in the bedroom closet and told defendant about it. Defendant immediately went to look. The gun case was empty, but defendant opened the safe and saw the gun. He was upset and left the house, telling Dorina to get rid of the gun because he could not have it. Shortly thereafter, he was stopped by the police.
Defendant testified about an account he had opened in Dorin's name; defendant used the account to save money for his mother's medical expenses. When he needed the money, it was not there. Defendant believed Dorin had stolen $85,000 and should repay it. Defendant was angry with Dorin. He sent Dorin a promissory note and threatened to report Dorin to the police and have him charged with embezzlement.
Dorina had looked in the safe many times between January 2009 and the day of the search and never saw the shotgun or ammunition.
Exclusion of Documentary Evidence
Prior to trial, the People moved to exclude certain documentary evidence that the defense offered for the stated purpose of showing Dorin planted the gun.
At the hearing on the motion, defendant made the following offer of proof: There was a history of Dorin stealing from defendant and Dorina. In late 2007, defendant placed a $100,000 certificate of deposit (CD) from the sale of a business in Dorin's name; the CD was used as security for a loan. Defendant made payments on the loan. Defendant allowed Dorin and his wife to live at the Ash Creek Court residence. Dorin took $25,000 worth of furniture and never paid any rent. Dorin cashed the CD and pocketed tens of thousands of dollars. Defendant did not learn about this until April 2008, when his mother was sick and he needed the funds for her medical care.
Defendant proffered exhibits supporting his theory--an e-mail from Dorin apologizing for the theft, and defendant's response. Defendant also proffered an e-mail from Dorin's wife Nicole. Nicole had filed for a temporary restraining order against defendant, claiming he was threatening and had guns, which defendant denied. There was also a warrant for Dorin's arrest for forgery of a quitclaim deed. Dorin had admitted the forgery to a detective.
The defense theory was that Dorin put the shotgun in the safe to "get rid of" defendant. Dorin had taken the shotgun when defendant was convicted of a felony, had access to the safe, and knew the combination.
The People objected to the evidence on foundation and hearsay grounds. There were no witness statements about these events, other than those of defendant and Dorina. The People argued this contentious family struggle was not relevant to this case and that related evidence should be excluded under Evidence Code section 352, as it would confuse the jury and the issues.
When the defense expressed its understanding that Dorin would testify and admit his potential criminal culpability, the court responded Dorin might not be available as a witness; he might invoke a privilege. The court also noted that presenting this evidence might incriminate defendant in fraudulent financial schemes with Dorin.*fn2 Defendant understood that testifying about the CD might subject him to state and federal prosecution.
The issue was revisited after defendant replaced his attorney. In discussing exactly what evidence defendant wanted to introduce, the court noted the "fairly significant shifting sand" and that it was difficult to determine exactly what evidence it was asked to rule on. Defense counsel stated the "core" was that Dorin took money he was not authorized to take and that "the fact that [Dorin] embezzled fifty-three thousand dollars and wrote a letter apologizing for doing so offering to pay it back is kind of the crux of it." The court found the e-mail from Dorin was inadmissible hearsay and rejected the defense argument it was an adoptive admission. If Dorin testified and admitted his acts, the e-mail was cumulative; if he denied them, it was hearsay. The memo response from defendant was self-serving hearsay and if defendant testified it was cumulative.
The court reasoned that to admit the evidence it had to find the jury could have a reasonable doubt that defendant knowingly possessed the firearm--because the jury believed Dorin put the gun in defendant's safe without defendant's knowledge or consent. It would be a successful defense to convince the jury that defendant discovered the gun only on the day of the search and the police came before he could dispose of it. The court found no facts to show that Dorin placed the gun in the safe, and absent such evidence or "link" the proffered evidence was not relevant. Further, the court would exclude the evidence under Evidence Code section 352 as it would "hopelessly box up, confuse and mislead the jury," turning a one-day trial into a five- or six-day trial. The probative value of defendant's evidence was less than the expenditure of time and potential prejudice to the People.
The court was concerned about the mountain of confusing documents, not the evidence of motive. It ruled Dorina could testify Dorin took the gun and the house was entered shortly before the search. Defendant could testify about Dorin's motive to plant the gun.
Although defendant proffered 19 exhibits at trial, on appeal he challenges the exclusion of only three: Dorin's e-mail, defendant's response, and the forged quitclaim deed, contained in a police report about the forgery. We discuss each in turn.
1. E-mail from Dorin to Defendant
Defendant offered Exhibit A, an e-mail purportedly from Dorin to defendant. It begins with a discussion of defendant's mother. Then it says: "I know what I did to you will never be forgiven. I would never forgive myself. I've had to live with this guilt for over a year, it was tearing me up inside until there was nothing left. It's not your fault I was financially irresponsible and couldn't get myself out. It wasn't right what I did. I'm sorry. I'm sorry. I'm sorry. I could say it a thousand times and it won't make anything better, you won't hate me less and it won't make what I did any better." The e-mail continues, discussing the bleak economic picture, the author's need for a job, his intent to pay defendant back, the repossession of his cars, and the inevitability of bankruptcy. The e-mail concludes, "I know what I did was wrong and I'm sorry from the bottom of my heart, I know you'll never forgive me and I don't expect you to."
Defendant offered the e-mail to show that Dorin stole from defendant and apologized for it.*fn3 The e-mail is hearsay, as it is a purported out of court statement by Dorin (who did not testify at trial), offered for the truth of its contents.*fn4 (Evid. Code, § 1200.) Defendant contends it was admissible as an exception to the hearsay rule as a statement against interest "because it was an admission to the criminal conversion of money."
A party who maintains that an out-of-court statement is admissible under Evidence Code section 1230 "as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]" (People v. Cudjo (1993) 6 Cal.4th 585, 607, original italics.) Defendant has failed to make this showing.
A key problem with defendant's theory of admission is that the e-mail never states what the writer actually did, other than being "financially irresponsible." The e-mail never admits to theft. Without an identification of the writer's wrongful act, it cannot be determined whether the statement "was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.)
2. Defendant's Memo
Defendant also sought admission of his memo to Dorin in response to the e-mail, to show that Dorin agreed to repay the money he stole. The memo is entitled "Repayment of Stolen Money," and demands repayment "of the monies owed from the misappropriation of funds" and threatens legal action if there is no repayment. Defendant contends this memo was improperly excluded as hearsay. He argues the document had sufficient "indicia of reliability" because it was written before the search when defendant had no reason to fabricate a document. He further asserts the document was admissible for the "non-hearsay purpose" of demonstrating Dorin's motive to plant the gun so defendant would be prosecuted and unable to pressure Dorin for the money.
Tellingly, defendant cites no authority that a document's purported reliability or its use to demonstrate motive (when such use requires the truth of the matter asserted, namely, that Dorin stole from defendant and then agreed to repay the money) are exceptions to the hearsay rule. Nor are we aware of any such authority.*fn5
At trial, defendant testified to his belief that Dorin stole from him, he was entitled to repayment, and he threatened to report Dorin to the police. Thus, the contents of the memo were before the jury. Evidence of a prior consistent statement may be admissible as an exception to the hearsay rule in certain situations when offered to support the witness's credibility. (Evid. Code, §§ 791, 1236.) Here, the memo was not offered to support defendant's credibility after admission of an inconsistent statement or a charge of fabrication. Instead, defendant sought to use it as further evidence of what he had testified to, Dorin's theft and defendant's threat to report it. The trial court properly excluded the memo; it was hearsay and defendant offered no viable exception to the hearsay rule.
3. Quitclaim Deed
Finally, defendant contends the trial court erred in excluding the quitclaim deed by which defendant's son Brandon quitclaimed his interest in Lost Creek Drive property to Dorin. Defendant contends this deed is forged. This deed was included in a police report about the alleged forgery. Defendant told the police he was the mortgagor of the property, but title was in the name of his 16-year-old son, Brandon. After not receiving water bills, defendant learned Dorin was listed as the property's new owner and discovered the forgery.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"The rule is settled that the trial court's discretion to exclude or admit relevant evidence under Evidence Code section 352 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.' [Citation.]" (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) This case does not present an abuse of discretion under Evidence Code section 352.
As even the briefest description of the facts surrounding the deed shows, the story about the deed and its alleged forgery was complicated. To use the deed to show Dorin's motive to plant the gun, defendant would have to present evidence as to how title to the house was held, that the deed had been forged, and how defendant learned of the forgery and confronted Dorin about it. Such a presentation of evidence would be very time consuming in an otherwise short and straightforward case. The probative value of the deed was marginal because nothing about the deed or its forgery showed that Dorin actually planted the gun, and Dorin's motive to get back at defendant was presented to the jury through defendant's testimony. The trial court did not abuse its discretion in excluding the deed.
In rebuttal closing argument, the prosecutor dismissed the defense claim that Dorin planted the gun. First, she argued Dorina's story about the alleged break-in or burglary did not make sense. Then she turned to the issue of Dorin's alleged theft. "And there is really no evidence that money was actually stolen. Yeah, the defendant and his wife testified to it, but we didn't hear from any forensic accountants--" Defendant objected and a bench conference was held. Defendant proposed a curative instruction, informing the jury that the court had ruled evidence of the embezzlement was inadmissible and the defendant was prohibited from introducing such proof.
Instead, the court gave its own instruction: "Ladies and gentlemen, during closing arguments, a statement was made by the People that no evidence was introduced by the defendant about any money having been embezzled by Dorin Brandusa. The defendant is not required to present any evidence at trial. He is presumed to be not guilty. And he is entitled to rely upon the presumption of innocence and not go forward or present any evidence. [¶] A trial is a dynamic event. Occasionally the evidence is proffered, and for reasons not necessarily for you to know, evidence is excluded and not presented to you. To the extent that there was evidence on the issue of embezzlement, there was nothing presented to you, and you're not to take any consideration of the fact that evidence was not presented to you by the defendant and do not give any weight to the argument that the defendant did not bring evidence with regard to the embezzlement by Brandon--I'm sorry, by Dorin Brandusa."
Defendant asserted the prosecutor's comment was serious misconduct and the trial court's curative instruction was inadequate to remedy the misconduct. The People contend the prosecutor's comment was a fair comment on the state of the evidence.
Because the trial court gave a curative instruction in response to the defense objection, we need not resolve whether the prosecutor committed misconduct.*fn6 Instead, we focus on the adequacy of the curative instruction.
Generally, where "the trial court sustained the defense objections and admonished the jury to disregard the comments; it is assumed the jury followed the admonishment and that prejudice was therefore avoided. [Citation.]" (People v. Mendoza (2007) 42 Cal.4th 686, 701.)
Attempting to prevail against this strong assumption of no prejudice, defendant contends the trial court's curative instruction was inadequate. First, he complains the instruction left the jury to speculate whether evidence of Dorin's embezzlement existed. The instruction, however, admonished the jury not to consider that no such evidence was presented.
Second, defendant argues the instruction made the situation worse. The instruction stated in part, "To the extent that there was evidence on the issue of embezzlement, there was nothing presented to you, . . ." Defendant contends this portion of the curative instruction told the jury that defendant's testimony about Dorin's theft did not establish the theft. "In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Here, in the context of the trial, it was clear the curative instruction was aimed at the prosecutor's argument that defendant presented no evidence, other than his and Dorina's testimony, that money was stolen.*fn7
Defendant has not shown error in the court's curative instruction.
CALCRIM No. 2510: Instruction on Possession
The trial court instructed the jury on the crime of being a felon in possession of a firearm in the language of CALCRIM No. 2510 as follows: "Now, the defendant is charged in Count 1 with unlawfully possessing a firearm. To prove the defendant guilty of this crime, the People have to show the following: First, that the defendant possessed a firearm. Second, that the defendant knew that he possessed a firearm, and third, that the defendant had previously been convicted of a felony."
The court instructed the jury on possession as follows: "Wrongful intent must be shown with regard to the possession and custody element of the crime of being a felon in possession of a firearm and/or ammunition. A felon who acquires possession of a firearm through misfortune or accident but has no intent to exercise control or to have custody commits the prohibited act without the required wrongful intent. [¶] . . . [¶] Two or more people may possess something at the same time. A person does not have to actually hold or touch something to possess it. It's enough if the person had control over it or the right to control it either personally or through another person."
Defendant contends this instruction on possession was correct, but inadequate. He argues the instruction omitted the key point that access alone does not constitute possession. He claims the jury could have found him guilty by finding he had control of the shotgun when he opened the safe and found it. This contention fails.
First, "Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Andrews (1989) 49 Cal.3d 200, 218.)
Even more damaging to defendant's argument is his failure to acknowledge the instructions that specifically address his point. The instruction preceding the challenged instruction reads: "A felon who acquires possession of a firearm through misfortune or accident but has no intent to exercise control or to have custody commits the prohibited act without the required wrongful intent." Even more on point, the court instructed the jury: "If you find that the defendant did not know that the shotgun and ammunition were in the safe prior to the morning of April 30th, 2009, then he did not have the specific intent or mental state required for possession of a firearm by a convicted felon or possession of ammunition by a convicted felon." Applying these instructions, the jury could not find control, or guilt, if it found defendant was unaware of the gun until the morning of the search.
The court also instructed on the defense of momentary or transitory possession: "If you conclude that the defendant possessed the firearm, that possession was not unlawful if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove the following: One, he found the shotgun. Second, he possessed the shotgun only for a momentary or transitory period, and three, he possessed the shotgun no longer than was necessary to deliver or transport the shotgun to a law enforcement agency to dispose of the shotgun or deliver the shotgun to a third party if ordered to dispose of, abandon, or destroy the shotgun or to cause someone to deliver the shotgun to a law enforcement agency or cause the shotgun to be disposed of, abandoned, or destroyed." The court instructed that defendant had the burden to prove this defense by a preponderance of the evidence.
Defendant contends this instruction was misleading under the facts of this case. First, he contends it was questionable whether defendant ever constructively possessed the gun. However, the instruction recognized there might be factual issue as to possession; the instruction applied only "if you conclude that the defendant possessed the firearm."
Second, defendant contends the instruction erroneously placed the burden on defendant to deliver the shotgun to law enforcement. He contends the instruction failed to recognize the distinction between the element of "possession" in crimes of possession and the affirmative defense of Penal Code section 12021, subdivision (h) to the crime of possession of a firearm by a felon.*fn8
While defendant's argument is difficult to follow, it seems to be premised on the contention that momentary or transitory possession is not an affirmative defense, and therefore he had no burden to establish it. He contends momentary possession is not possession. He claims that his position finds support in Justice Kennard's concurring opinion in People v. Martin (2001) 25 Cal.4th 1180. In Martin, the Supreme Court stated: "We granted review to clarify the nature and scope of the affirmative defense of transitory possession for disposal first announced in [People v.] Mijares [(1971) 6 Cal.3d 415]." (People v. Martin, supra, 25 Cal.4th at p. 1182, italics added.) Elsewhere in the opinion, the court refers to transitory possession as a "defense" or more explicitly as an "affirmative defense." (People v. Martin, supra, at pp. 1185 fn. 4, 1186, 1190-1193, 1192 fn. 10.) Justice Kennard took exception to these references, stating that in Mijares "this court did not there create or recognize any affirmative defense to such a charge. Rather, this court in Mijares simply noted the issue of momentary handling 'goes to the very essence of the offense.' [Citation.] Thus, unlike the majority, I would reaffirm Mijares without modification." (People v. Martin, supra, at p. 1193, conc. opn. of Kennard, J.)
Defendant argues, "It is unlikely People v. Martin intended to make momentary possession a true affirmative defense." Given the language of Martin, we, like Justice Kennard, conclude otherwise. We are bound by the decisions of our Supreme Court and find no error in the instruction.
Finally, defendant contends the cumulative impact of the trial court's errors caused prejudice and requires reversal. Having found no error when defendant's contentions are considered individually, we find no cumulative error. (People v. Ramirez (2006) 39 Cal.4th 398, 465.)
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. BUTZ , J.