(Super. Ct. No. 09F03286)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...